Despite winning a lawsuit earlier this year that found that certain Virginians with felony convictions should not have lost their voting rights, some Virginians missed their chance to vote in congressional primary elections earlier this month. 

But a new ruling from U.S. District Court Judge John Gibney means that they will be able to vote in this November’s general elections and weigh in on a state constitutional amendment that would enshrine restored voting rights for people with felony convictions, so long as their prison sentences are complete. 

The voting access issue stems from a series of 1870 laws called the Readmission Acts, which banned former Confederate states from constitutionally disenfranchising people other than those convicted of crimes considered “common law” at the time. 

Virginians with felony records lose the right to vote unless they successfully petition the governor for restorationor are pardoned. The processes are subjective and have not always had clear guidelines. 

Virginia’s chapter of the American Civil Liberties Union argued that Virginians with a variety of felony convictions should have never lost their voting rights in the first place. A judge ruled in their favor this past January and ordered the state to comply by May. 

Attorney General Jay Jones then successfully sought an extension to June 1 so that the state could compile guidance for registrars and ascertain which modern-day felonies might still block someone from registering to vote. 

Some former felons, eligible to vote this summer, are in registration limbo

For instance, illegally using tear gas was included on a list of such crimes from Jones’ office, “even though tear gas was not invented in 1870,” ACLU attorney Eden Heilman said in an interview, earlier this summer. 

But as early voting began for congressional primaries in June, some would-be voters found themselves in a registration limbo. 

“It is shocking that instead of taking this opportunity to rid itself of a Jim Crow-era scheme that has disproportionately impacted Black voters for more than a century, the attorney general’s office instead created a process that erected new barriers to registration and robbed many newly eligible voters of the opportunity to participate in the August primary elections,” Heilman said in a statement Thursday.

Earlier in the summer, documents obtained by The Mercury showed that registrars had been instructed to not fully process new voter registrations of people with felony convictions.

Additionally, some spplicants who qualified for the exception granted by the January ruling were unsure whether they should check a box on a question about if they had been convicted of a felony because it is a crime to lie on applications in the state.

Around that time, the ACLU filed their motion for a judge to speed up registrations and force the state’s compliance. 

In his latest ruling, Gibney denied the plaintiff’s request for rewrites of election forms to adjust the felony question box, but affirmed his earlier ruling on the Readmission Acts. 

Civil rights group files motion to speed up Va.’s reform of voter registration process for ex-felons

“The Commonwealth lagged — sometimes egregiously so — in implementation,” he wrote. “They failed to register the named plaintiffs, left misinformation on their webpages, and prevented class members from registering online. But the parties agree the Commonwealth fixed these failures.” 

Just before the Aug. 4 primaries, Gov. Abigail Spanberger restored voting rights to 66,000 people, but it’s unclear how many of those Virginians would have been eligible due to the Readmission Act ruling.

While Jones’ office had considered 284 statutory felonies as applicable for continued disenfranchisement, Gibney’s order reiterates that “only” the 11 common law felonies from 1870 will apply. 

Those are: arson, burglary, escape or rescue from jail, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy or suicide.

Gibney gave the example of how a Virginia statute outlaws the use of tear gas to injure someone else. 

“Perhaps a court could find someone guilty of common-law mayhem for using noxious gases to harm another, but a person found guilty of (that crime) is not a person found guilty of common-law mayhem,” Gibney wrote. “That person can vote.”

Gibney’s ruling affirmed the purpose of the Readmission Acts in preventing states from finding new reasons to disenfranchise people. 

“This case is simple,” he wrote. “The Virginia Readmission Act gives a straightforward rule, and this Court’s injunction reflects that rule.”