A discretionary process being used by Virginia Gov. Glenn Younkgin to decide which felons can get their voting rights back is unconstitutional and could lead to decisions based on an applicant’s political affiliations or views, a lawsuit filed Thursday argued.
Youngkin's administration recently confirmed it had shifted away from an at least partly automatic rights restoration system used by his predecessors. The current process conditions the right to vote "on the exercise of unfettered official discretion and arbitrary decision-making," in violation of the First Amendment of the U.S. Constitution, the lawsuit argued.
"Officials with absolute authority to selectively enfranchise U.S. citizens with felony convictions may grant or deny voting rights restoration applications for pretextual reasons or no reason, while secretly basing their decision on information — or informed speculation — on the applicant’s political affiliations or views," says the lawsuit, filed in federal court in Richmond.
In Virginia, a felony conviction automatically results in the loss of a person’s civil rights, such as the right to vote, serve on a jury, run for office and carry a firearm. The governor has the sole discretion to restore those civil rights, apart from firearm rights, which must be restored by a court.
The lawsuit was filed by the Washington-based Fair Elections Center on behalf of Gregory Williams, a convicted felon who has completed his sentence and has a restoration application pending, and Nolef Turns, a Richmond-based nonprofit that advocates for people with felony convictions.
Late last month, Youngkin's administration confirmed to a state lawmaker that it had ended the system of automatically restoring the rights of at least some felons who have served their terms.
Instead, every discharged felon is now provided with an application, and requests are "considered individually," Youngkin's Secretary of the Commonwealth, Kay Coles James, said in a March 22 letter to a state senator.
James, a Youngkin Cabinet member whose office oversees the rights restoration process, is named in the suit as a defendant, along with the governor.
Macaulay Porter, a spokeswoman for Youngkin, said the administration's current process is "constitutional and will be defended vigorously in court."
The letter from James, which was sent after Democratic Sen. Lionell Spruill raised concerns about a drop in the number of rights restored, did not lay out specific criteria the administration would use in considering each application. It said various state agencies now help research each application and that decisions are made in the interest of "practicing grace for those who need it and ensuring public safety."
Jon Sherman, litigation director at the Fair Elections Center, said in a statement that Coles' "grace" and "public safety" explanation "is exactly the kind of arbitrary licensing of First Amendment-protected conduct based on vague, subjective standards that the Supreme Court has prohibited for eighty-five years."
Sherman said in an interview that "practicing grace" appears to refer to a religious concept that is "highly subjective and not an objective rule that could be used to govern a First Amendment protected right like voting."
The lawsuit also says the fact Virginia does not set any "any reasonable, definite time limits by which the Governor must make a decision on an application for voting rights restoration" violates the First Amendment.
Virginia's rights restoration policies make it a national outlier. In most states, rights are automatically restored either after the completion of a prison sentence or after the completion of parole or probation, according to the National Conference of State Legislatures. Some states require that convicted felons must first pay any outstanding fees, fine or restitution.
According to the American Civil Liberties Union, only Virginia and Kentucky permanently disenfranchise people with felony convictions absent action from the governor.
Citing an October 2022 report from the Sentencing Project, the lawsuit says Virginia has an estimated 211,344 people with felony convictions who remain disenfranchised, even after completing their full sentences including parole and probation. That constitutes just over 5% of the state’s voting-age population, the sixth-highest rate in the nation, according to the lawsuit.
Virginia governors over the past two decades, Democrat and Republican, have taken steps to streamline the process of applying for rights restoration or to work through applications more quickly.
In 2013, Republican Gov. Bob McDonnell announced that nonviolent felons who finished serving their sentences and maintained a clean record would regain their voting and other civil rights on an individual basis without having to apply. Democratic Gov. Terry McAuliffe and his predecessor, Ralph Northam, expanded on that.
The lawsuit says all three previous governors used "specific, objective, and neutral criteria such as sentence completion or release from incarceration" to "create a uniformly administered, non-discretionary restoration system."
McAuliffe's administration restored the rights of more than 173,000 Virginians by the end of his term. Northam restored over 126,000.
Youngkin, who took office in January 2022, announced that May that he had restored the civil rights of 3,496 Virginians. The administration said at the time that it would be restoring rights on an "ongoing basis."
He then announced another batch in October, saying over 800 people had their rights restored in time to register to vote in the November election.
Recent legislative efforts to let voters decide whether to automatically restore the voting rights of felons who have served their terms, without involvement by the governor, have died in the Republican-controlled House of Delegates.