Shawn Weneta of the ACLU of Virginia joins the show to discuss Virginia's constitutional policy of stripping voting rights from people convicted of felonies--a policy born in the Jim Crow era. Bipartisan policies from Governors McDonnell, McAuliffe, and Northam have restored rights to thousands of disenfranchised voters based on public criteria, but that policy has stopped with Governor Youngkin. Now, thousands of people being released from prison aren't getting the right to vote, and they don't know why.

Episode Transcript

Michael Pope: I'm Michael Pope.

Thomas Bowman: I'm Tom Bowman.

Michael Pope: And this is Pod Virginia, a podcast that's taking a look at the restoration of voting rights.

Thomas Bowman: Virginia and Kentucky are the only states in the entire United States of America where people convicted of felonies permanently lose their right to vote.

Michael Pope: Permanently until the Governor steps in and restores the right to vote, which is our topic today.

Returning to the podcast to help us understand this is a policy and advocacy strategist for the ACLU of Virginia. Shawn Winta, thanks for joining us.

Shawn Weneta: Thanks for having me back. It's always good to be here.

Thomas Bowman: It's great to have you back, Shawn. Virginia and Kentucky, of course, are the only two states that permanently disenfranchised people convicted of any felony offense, and that leaves restoration of voting rights to the Governor.

Shawn, can you tell us how this system works from a more nuts and bolts level, like the process?

Shawn Weneta: Until this past, May, may of 2022 for quite a while, the process had been pretty automatic. And this sort of goes back to the McDonnell administration prior to that. And just for clarity, the Constitution of Virginia puts the sole and absolute discretion in restoring voting rights to somebody who's been convicted of a felony. In the hands of the Governor, and the Governor has stolen absolute discretion to restore rights or not. Now, with that table set, starting with the McDonnell administration a little over a decade ago, they wanted to make that process pretty simple. It had been a really arduous process in prior administrations.

So Governor McDonnell started automatically restoring rights for people, and he had very set criteria, and it was particularly for people that have had non-violent offenses. And had completed a period of supervision and had paid off some fines and restitution and things like that. One of the big things that he did, though, that was really critical was he just made it a more accessible process.

So even for people that had violent offenses that wanted to apply to have their rights restored, he really streamlined the process. You made the very simple form to fill out rather than prior. You had to go through a really arduous and pretty opaque process. When Governor McDonnell came into office, he made the system even more accessible, along with the Secretary of the Commonwealth.

Shortly thereafter, Kelly Thomas and the McAuliffe administration continued to streamline the process for application. And then Governor McCauliffe took a really pretty, pretty bold step forward and decided. He had all the information he knew, who met the criteria of, and I believe what Governor McAuliffe's criteria were that you had been released from any period of incarceration, you had completed any supervision, and you had also paid off your fines and fees regardless of the nature of your offense.

And Governor McAuliffe knew who those people were. So we took a really bold step and reinstated rights for all of those people automatically. This is really a sort of the way that certainly we at the A C L U believe that if you are, in fact, gonna take rights away from somebody, which we don't think that you should.

But if you do that, you should be restored automatically. And so McAuliffe started governor McAuliffe started doing that because he knew who the people were that met his criteria going into the Northam administration. Governor Northam continued that policy. And then, in 2021, when he saw that the Virginia General Assembly passed a first reference constitutional amendment to automatically restore voting rights to people upon return from incarceration.

Rather than waiting an even longer period of time, governor Northam saw that as a signal to go ahead and start doing that as well. Governor Northam started restoring rights automatically, and I know this the day that he made that decision. It was in March of 2021. And I know this very well because my rights restoration was one of the first ones that he signed, and he signed it in front of me.

Michael Pope: Wow. Wow. That's great.

So you walked us through McDonald, the history here with McDonald as a Republican, restoring voting rights to 10,000 people. Then McCauliffe. Really ramps that up. Restored rights to about 200,000 people. Northam followed suit, restoring rights to about a hundred thousand people.

So there's a clear trajectory here, a bipartisan trajectory of Republicans and Democrats automatically restoring rights to hundreds of thousands of people. Okay, so take us up to the youngin administration, Shawn Winta of the A C L U. What are the latest developments with how Governor Youngkin is approaching?

Shawn Weneta: At first glance, it seemed that the Youngkin administration last year was gonna continue the process that the North administration had advanced. And it appeared that way because, in May of last year, the Youngkin administration restored rights to just under 4,000 people. And we were really encouraged to see it.

But unfortunately, as the year evolved and as we're able to tell from the Governor's reports to the General Assembly assembly, we see that after those 4,000, or just shy of 4,000 people were restored in May of last year, throughout the rest of the year, he only restored rights for a few hundred more people.

So clearly, the policy or the posture of the Youngkin administration had changed somewhere in the year 2022, and they stopped restoring rights automat. 

Michael Pope: The Governor's spokeswoman, MaCaulay Porter, when asked about this, said this quote, the Constitution places the responsibility to consider Virginians for restoration in the hands of the Governor alone.

And he does not take this lightly. Okay, so the Governor has this power. And he's gonna use it how he wants to use it, but do we have any indication of why he changed his mind on this issue or why he's taking a different approach now than he did previously? Two things with that. The spokesperson for the Governor is right.

Shawn Weneta: The Constitution gives the Governor absolute power. As we discussed a little bit earlier, the sort of, Problem with a chance to start with is that we don't know what the Governor's criteria are. Now. We knew what Northern's criteria were. We knew what McCullough's criteria were. We knew what McDonnell's criteria were.

But a change within the Youngkin administration in their posture and in their criteria has not been made public. And yes, he does have to consider them individually, but he can let us know what that criterion is of what he's using to do that. Now the shift in that, Sort of some of the behind the scenes that, that w we understand and we've gotten word from a lot of different partners, is that there were members of the Republican caucus in the General Assembly who were really displeased with the Youngkin administration, restoring all those rights.

 Back in May, I went to the Youngkin administration and said, we are not pleased with this. You are restoring people that have charges that we don't like or people that we simply don't wanna see restored. We could certainly speculate as to what their reasons for not wanting those people to have their rights restored, what those reasons are.

But we do know that there was a reach out from Republicans in the General Assembly to ask the Youngkin administration. So his restoration of rights to people that have been disenfranchised and take more strict criteria when reviewing those people.

Thomas Bowman: So Shawn, would you say this individual restoration approach is a step backward for automatic restoration?

Shawn Weneta: Absolutely. Thomas, didn't that's a really good question and here's what I will tell anybody. This is a generational shift in access to the ballot, and it is a regressive policy. That is walking back more than a decade and change worth of progress moving forward, regardless of the political stripes of the executive.

Michael Pope: Yeah. Shawn, let me get you to speak to the other side of this issue. So what would you say to the person who would tell you, if you've committed a felony, that's a crime, there's a punishment for the crime, you should not be allowed to vote, and that's a punishment that fits the crime. What would you say to people who would argue that people who have been convicted of felonies deserve to lose the right?

Shawn Weneta: Sure, and I'm gonna get a little bit wonky here and talk about how losing the right to vote is not considered punishment for a crime. It is not in our penal code. It is in our Constitution. And that goes back over, over a century of why it's in the Constitution. It is not considered punishment.

It is not in the penal code. You are not sentenced to prison and for loss of voting rights. That is not part of the sentence. You might be sentenced to 10 years in prison and a thousand dollars fine, and four years of probation and restitution or something like that. But at no time for punishment for a crime are you sentenced. To lose your right to vote.

Thomas Bowman: So what I hear in so many words, Shawn, is that actually. This administrative and bureaucratic requirement actually takes away power from judges to issue sentences that are based upon their discretion and their actual best practices, which judges talk to judges around the country, right?

So they know generally what other people are doing in other states that don't take away voting rights. And so, this is a prescribed administrative action and not a punishment.

Shawn Weneta: Exactly. Exactly. And judges around Virginia know what other judges are doing. That's why we have sentencing guidelines and things like that that help inform judges of, hey, this is standard across the Commonwealth.

The Virginia criminal Sentencing Commission gathers this data and helps to better inform judges as to what sort of the norms are across the Commonwealth. And this is not part of that. Never something that a judge even one considers or even has the authority to do anything about, even if they wanted to.

Thomas Bowman: Walk us through the history, especially in Virginia. Shawn, where does this come from? How did we get here?

Shawn Weneta: It's really pretty; while it's a simple answer, it's a very it's, very dark answer. It's very tragic and traumatic, and really it goes back to the 1902 Virginia Constitutional Convention.

I'll quote. There's, there was a Delegate named AC Braxton. And so, for your listeners, in 1902, there was a constitutional convention in which felon disenfranchisement was enshrined in the Virginia Constitution. And when this happened in this, there's a whole lot of if you go back and read the minutes from this and they're available at the, in the Library of Virginia, I think you can look at 'em online.

There's some really horrible rhetoric. About this, they were happy to say the quiet part out loud back then. But quote a delegate, AC Braxton. When felon disenfranchisement was enshrined in the Constitution, this is what he said. He said the work of this convention would remain to harass and oppress the people till this, and probably the next generation, has passed away.

And what that did was it was targeted to disenfranchise black and brown communities. As we move forward, and we can see this over the last century, the criminal code has been written to culturally criminalize communities of color and to prevent them from having access to the ballot box and from having their voices heard.

And that's what the constitutional amendment did, that it was the sole reason for doing it. It was not to protect public safety or the sanctity of the ballot box or any of these sorts of other things that thrown now of do the crime, do time. That wasn't part of it. This was part of the convention.

This is an administrative remedy to deliberately disenfranchise votes. Members of the 19, oh two General Assembly were afraid of being cast. 

Michael Pope: The really important point here is that this Constitution is one of the most notorious pieces of Virginia history. People sometimes call it the 1901 Constitution because that's when the convention started.

Sometimes people call it the 1902 convention cuz that's when it ended. I like to. The Jim Crow constitution, cuz it's the Constitution that threw all these restrictions on voting rights. This is only one of them. There were actually several in that Constitution that really pulled back the number of people who could participate in elections.

And the net result here is that it dramatically reduced the number of people participating in Virginia elections, which kind of was the point. So Straight Jim Crow. Racism is the origin of this feature of Virginia voting rights that we currently have in our modern world today. So that's the backstory of it.

Let's flash forward to 2023. Senator Lionell Spruill of Chesapeake has really been pushing Youngkin on this issue. What's the, what's going on there? 

Shawn Weneta: Senator Spruill of Chesapeake is the chair of the Senate privileges and elections committee. And together, I, I believe, certainly, along with other members of his caucus, were alerted to the fact that there, there was a change.

They looked at this report to the General Assembly from the Youngkin administration detailing how many people had been and had their rights reinstated throughout the course of the year. And the math was done. And we know that there are about a thousand people that are released from custody by the Department of Corrections every single month.

And, By that case, there should be at least 12,000 people from, if we base it on the previous administration and the beginning of the young administration, there should have been about 12,000 people that have been reinstated this year, or in the past year. There wasn't. Senator Spruill sent a letter to the Youngkin administration, including the Secretary of the Commonwealth, Kay Cole James, and asked if there had been a change to the criteria because the numbers simply didn't add up.

There was a change to the criteria for restoration. What was it? And please be transparent about it because people that are being released from incarceration need to know if they're eligible. Do you know, do they need to apply? Where do they need to apply? What are the criteria for application?

What are the criteria for restoration? They wanted some clarity, and frankly, so did the ACLU of Virginia and the League of Women Voters and Americas for Prosperity and lots of prison fellowship. Lots of other groups. On again, regardless of your political stripes or, lean left, lean right.

Michael Pope: Can I just make sure that I understand what you just said here on our podcast? A, there is no more restoration of voting rights. It's done on a case-by-case basis in the Youngkin administration. That's the first point. And then the second point is we have no clue what criteria the Governor is using to make these decisions.

Shawn Weneta: That's exactly right. It is totally opaque what the actual criteria are. The closest thing that we've gotten was in the memo from Kay Cole James. In response to Senator Sproul's letter of Inquiry, Secretary Cole James said that people are restored. Those that need grace and mercy, I believe, while also protecting and preserving the public safety of members and citizens of the Commonwealth.

That was a little bit puzzling because if it is, in fact, a public safety issue, all the data actually points to public safety is enhanced by restoring more people. So I'm certainly happy if that's not accessible to the young administration. I certainly know, and several other advocates would be happy to provide that data to the administration of the sector of the Commonwealth.

But that's, that's the data bears out that public safety is enhanced by restoring voting rights, not the.

Thomas Bowman: Shawn, before we started recording, you were explaining to us and walking us through how the A C L U had this meeting where they had a gut check for themselves to decide what its position might be and what it thinks.

And I wanted to ask you, Shawn, what does the ACLU believe the ideal policy should be as far as restoring voting rights?

Shawn Weneta: To us, quite frankly, Thomas. It's not about restoration. It's about never taking a constitutional right away from anybody ever. We had had that position that predates me before I came to the AC L U of Virginia.

We believe in universal suffrage, and the right to vote should never be taken from anyone ever. If you are 18 years old and you are a citizen, you should have access to the ballot, full stop. We are willing to support automatic restoration upon release from incarceration, but we really think that that should be enshrined in the Constitution.

We really think that this should not be in the hands of the Governor and that this should not be in the hands of a partisan actor. And that's not just us saying that, that's not just the ACLU or, another may, maybe a rite of center. That goes back to Governor McDonnell, who said that he shouldn't have that power.

It should be in the hands of the voters. And we talk about a constitutional amendment that is actually something that, that is for, that goes to the voters to decide, while the general assembly has to approve it into consecutive General Assemblies with an intervening election that actually goes on the ballot.

And then Virginias. Would get to decide what the process is. Virginia voters are not a politician who takes money from special interest, not the Governor, not partisan actor or a group of 141 partisan actors. It would be the voters who actually get to make that decision. Unfortunately, there's been a couple of opportunities to do that in recent years, but members of the General Assembly have not allowed the voters to actually have a say in that.

And we were certainly very disappointed in that last year. And we will continue along with men, many legislators. I know Senator Locke posted an op-ed today in the Virginia Pilot. And other members of the General Assembly, again, of both parties, have put forward constitutional amendments in the last three sessions at least, and going even further back than that to create an automatic process.

And again, to take it out of the hands of a partisan actor. Cuz when it's in the hands of a partisan actor, frankly, you achieve partisan outcomes. And that's what we're trying to get away from, is achieving partisan outcomes. It really should be back in the hands of voters. To do this and to really, if I can, pingback on what the outcomes of the Jim Crow Constitutional Convention were, what this did to communities of color.

Until recently, 20% of black men over the age of 18 in Virginia were disenfranchised. Would never get the right to vote back unless the Governor acted. And fortunately, governor McDonnell went a long way to address that, as did Governor McCauliffe and Governor Northam. And it seemed like Governor Youngkin was gonna do that, but unfortunately has walked that policy back and will continue to disproportionately disenfranchise.

Particularly men of color, but communities of color will be less heard at the vote, at the ballot box as elections approach this year and all 140 members will be elected to the General Assembly.

Michael Pope: Shawn Winta of the A C L U of Virginia, thanks for coming back on.

Shawn Weneta: Thanks for having me again. It's always a pleasure to be here.

Thomas Bowman: Count me in as a supporter of Universal suffrage. That's it for this week's episode of Pod Virginia. Don't forget to check out our website and follow us on social media for more updates and discussions on Virginia Politics.