Virginia Governor Ralph Northam (Zach Gibson/Getty Images)

People with felony convictions who arent in prison can now vote. State elections could bring further progress or a sharp retreat.

When Virginia resident Jacqueline McBride accompanied a family member to the polls last fall, she was elated to see how enthusiastic people were to vote. “That was something special,” she says of the turnout she witnessed. “These young kids are the future.” But she was barred from voting because she was still on probation after her release from prison. 

Even under those circumstances, she would have been able to cast a ballot had she lived in 19 other states—but Virginia had harsher rules. “I’ve always voted,” she recounts, “and when I couldn’t vote last time around, it made me feel like I wasn’t part of something anymore.”

McBride regained her right to vote last week, as part of an executive action by Governor Ralph Northam, a Democrat, to restore the voting rights of tens of thousands of Virginians who are on probation and on parole. “I was so ecstatic,” she says, recalling how she grew up around people who were stripped of that right and never regained it.

Up until 2016, Virginians convicted of any felony were hit with a lifetime ban on voting, the product of exceptionally harsh rules embedded in the state’s racist 1902 constitution, which designed schemes to exclude Black voters. But years of activism on behalf of democracy and racial justice are transforming the state. In 2016, Governor Terry McAuliffe initiated a policy of restoring the voting rights of people once they completed all parts of their sentence; over the last two years of his term, he issued executive orders that enfranchised more than 170,000 people.

With his new policy, Northam is restoring voting rights even sooner. He will now sign restoration orders when people are released from prison, which will enable them to vote while they are on probation or parole. He enfranchised 69,000 people as part of this expanded approach last week. 

What this means in practice is that Virginians should be eligible to vote as long as they are not presently incarcerated over a felony conviction. “If you are on the outside, you can vote,” said Blair Bowie, an attorney with the Campaign Legal Center, to sum up Virginia’s new status quo. (But Bowie encouraged people with felony convictions to verify their status on a state website. The state Supreme Court blocked the process from being automatic, so the governor’s office reviews records and cases and signs restoration orders regularly, which opens the door to mistakes.) 

Now the future of this vastly expanded, though still not universal, electorate hinges on the state’s upcoming elections for the governorship and legislature.

“I don’t think it’s lost on any of us that depending on the outcome of November, everything that we’ve gained could be lost in the blink of an eye,” said Tram Nguyen, a co-executive director of New Virginia Majority, a progressive group that supports ending felony disenfranchisement. 

Northam is term-limited, and a new governor could end his approach immediately. 

All five Democrats running for governor—McAuliffe, state Delegates Lee Carter and Jennifer Carroll Foy, state Senator Jennifer McClellan, and Lieutenant Governor Justin Fairfax—told The Appeal: Political Report through spokespeople that they would keep up Northam’s updated policy and restore the voting rights of people on probation and parole.

Carter said he would go a step further and also issue executive orders to restore the voting rights of people in prison. People can already vote from prison in neighboring Washington, D.C., Maine, and Vermont

None of the leading Republican candidates for governor replied to requests for comment on whether they would adopt any comprehensive policy aimed at restoring voting rights. But Virginia Republicans have defended a starkly different approach than Democrats on rights restoration.

They have fought recent efforts to narrow felony disenfranchisement, including by suing McAuliffe over his original order in 2016 and mostly opposing proposed legislation similar to Northam’s order in February. State Senator Amanda Chase and state Delegate Kirk Cox, the two GOP candidates for governor now in the legislature, voted against that measure.

Republicans nationwide have doubled down this year on pushing for voting restrictions, including with a new law that Georgia adopted yesterday.

If the next governor stops the recent policies of restoring people’s voting rights, Virginia would return to a system of lifetime disenfranchisement for anyone convicted or released from prison from that point on. (People whose voting rights are already restored would not lose them.)

Keenly aware that an executive policy works only as long as the governor wants to keep it, state advocates are looking to amend Virginia’s constitution. As Claire Gastañaga, executive director of the ACLU of Virginia, told the Political Report last year, a governor “deciding to be nice” can’t be the only thing that protects voting rights.

But that path, too, hinges on the 2021 elections—more specifically those for the 100 seats in the state House of Delegates.

In February, lawmakers passed a constitutional amendment that would enfranchise people who are on probation and parole, as well as people who have finished their sentences. The measure would be a big jump from the current constitutional provisions, which mandate lifetime disenfranchisement absent a governor’s clemency, and it would shield Northam’s new status quo from future governors’ rollback. 

But constitutional amendments in Virginia must be adopted by two consecutive legislatures, and then put before voters. This means that the same reform that succeeded this year must pass again in 2022, approved by the new lawmakers who will be elected this November.

A Republican takeover of the House would likely sink the amendment. The measure succeeded in February largely, though not entirely, on the strength of Democratic votes.

The version that passed, though, fell short of the demands of state activists who pushed for full enfranchisement, including for people in prison. Amid similar advocacy nationwide, they made the case that voting rights can afford no exceptions and that the whole system is rife with racism. 

Nguyen of the New Virginia Majority told the Political Report that she wishes lawmakers had adopted a “clean amendment that establishes a fundamental right to vote” and she will continue pushing for it, but in the meantime she wants the adopted version to cross the finish line. “We are always on the side of the expansion of people’s voting rights and political rights because we know that when people can fully participate in our society and advocate for themselves, the community is healthier and safer,” she said.  

This debate is also playing out within the Democratic primary for governor.

All five Democratic candidates told the Political Report that they support the version of the amendment adopted this year, which would enshrine voting rights for people who are not incarcerated. But differences emerged from there. Carter and McClellan, unlike Foy and McAuliffe, replied through spokespeople that they also back changing the constitution to abolish disenfranchisement altogether; a spokesperson for Fairfax’s campaign said the lieutenant governor supports this as well.

Underlying these repeated shifts in Virginia’s approach are years of activism against felony disenfranchisement, which has pushed state officials toward more expansive policies, even if this year they did not end up embracing calls to let all citizens vote. 

The decisive fault lines within the legislature this year played out between those who argued for fully ending disenfranchisement, and those who made the case for restoration upon release from prison. This is a far cry from Virginia’s landscape as recently as 2016, when the issue of whether people should permanently lose the right to vote was treated as controversial. 

When McAuliffe issued his executive order to restore the voting rights of people who completed their sentences, including probation and parole, some Democratic prosecutors joined a lawsuit to overturn it. But the shifting tides soon became apparent; in 2019, two of those prosecutors lost re-election bids against primary challengers who indicated support for ending disenfranchisement.

Other states have also moved away from lifetime disenfranchisement since 2016. Florida, Iowa, and Kentucky have restored the voting rights of hundreds of thousands of people who have completed their sentences, through a ballot initiative in Florida and through executive orders in Iowa and Kentucky.

But over that same period, even more states have expanded their voting systems to enfranchise at least everyone who is not incarcerated, including those on probation and on parole. California, Colorado, Nevada, and New Jersey did this by law. Since 2018, New York’s governor is using his executive authority to restore the voting rights of people on parole who meet certain conditions. In July, Washington, D.C., enabled people in prison to vote as well. 

Bowie, whose work with the Campaign Legal Center involves helping people navigate the often byzantine state rules that govern voter eligibility, says the effects are widespread when everyone who is not incarcerated is enfranchised. When eligibility rules are opaque because some people in a community are barred from voting based on criteria that are often hard to parse it can dissuade even people who are eligible from voting. State agencies often provide insufficient information, and groups that do registration drives may not be equipped to answer questions by people who may fear the legal consequences of making a mistake. In that sense, expanding voting rights helps even people who already had them.

There are 10 states with Democratic governors that disenfranchise at least some people who are not in prison. Margaret Love, who maintains extensive information about rights restoration rules as executive director of the Collateral Consequences Resource Center, told the Political Report that most of those governors likely lack the authority to issue orders similar to Northam’s. But in many of those states, such as Connecticut, lawmakers have introduced bills to enfranchise people on probation and parole, if not also people who are in prison.

On Wednesday, Washington State’s legislature passed a bill to enfranchise people on parole and probation. The office of Governor Jay Inslee told the Political Report he is supportive of the bill. 

Virginia has already adopted a range of other voting rights protections since Democrats gained control of the state government in 2019, including a ban on prison gerrymandering and a state-level Voting Rights Act

And if 2021 will decide the future of rights restoration in Virginia, executive policies will at least make sure that this time, unlike the last, many more of the people whose voting rights are being debated will have a say in the elections.

The article was updated with responses from Justin Fairfax’s campaign. It was aldo updated to clarify that the 2021 legislative elections concern the House of Delegates.