Vishal Agraharkar: Using Reconstruction-Era Law to Restore Voting Rights
Vishal Agraharkar of the ACLU of Virginia joins the show to discuss a new lawsuit aimed at restoring voting rights to Virginians convicted of felonies. As a requirement for re-entry into the Union after the Civil War, Virginia was required to pass th Readmission Act of 1870. In an effort to prevent former Confederate states from disenfranchsing Black people, the Readmission Act prohibits Virginia from depriving citizens of the right to vote, except as punishment for crimes that are "now felonies at common law."
Common-law felonies at the time included crimes like murder, but didn't include felonies introduced after 1870, including many drug-related crimes. But Virginia still strips the right to vote from all people convicted of felonies. Agraharkar walks us through the ACLU's lawsuit, which seeks to overturn that precedent, restore voting rights to Virginians convicted of non-common-law felonies, and protect that right to vote going forward.
Episode Transcript
Michael Pope
I'm Michael Pope. And this is Pod Virginia, a podcast that is turning back the hands of time to the year 1870 when Virginia was readmitted to the Union. It was also a time when Congress was really worried about former Confederate states disenfranchising Black voters. That's an issue that has come back into the headlines because of a new lawsuit that we're going to talk about today. And we've got the best guest today to help us understand it. He's an attorney with the ACLU of Virginia Vishal Agraharkar. Thanks for joining us.
Vishal Agraharkar
Thanks for having me, Michael.
Michael Pope
Okay. So wow, this lawsuit is really something this caught everybody by surprise. You guys at the ACLU have dug up an old law that everybody had forgotten about everybody, except for history majors, from 1870. So this was a law that was passed that allowed Virginia to rejoin the Union. So by way of context here, during the Civil War, Virginia left the Union, there was a war, and it was under military occupation. And then, in 1870, it was one of the last Confederate states to rejoin the Union. But it came with conditions, right. So explain a little bit about the readmission act of 1870 and why it's important today.
Vishal Agraharkar
So the Virginia Readmission Act was one of several acts for all; one Readmission Act was passed for each of the former Confederate states. And it allowed those states, including Virginia, to regain representation in the United States Congress after the Civil War and established certain fundamental conditions of Readmission. And one of those was that Virginia could never amend its Constitution to take the right to vote away from anyone except for those convicted of what are known as common law felonies at that time, meaning 1870.
Michael Pope
Just to be clear with our listeners, I'm going to read part of this law. Because it was very clear that members of Congress in 1870 had a very specific thing that they wanted to happen. Okay, so this is from the 1870 law, which said "that the state of Virginia is admitted to representation in Congress as one of the states of the Union upon the following fundamental conditions. First, the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States the right to vote, who are entitled to vote by the Constitution, here in recognized except as a punishment for such crimes, as are now felonies at common law". So this is the part that you're talking about, right? This list of things that were common law felonies in the year 1870 is kind of frozen in time by the language of this law, right?
Vishal Agraharkar
That's right. And as you and your listeners surely know, criminal law has expanded significantly since then. So at that time, there were about nine common law felonies, things like murder, manslaughter, arson, burglary, robbery, rape, and so forth. Of course, now, there are many thousands of additional crimes and felonies for which people can lose their right to vote. In Virginia, basically, everyone convicted of a felony loses their right to vote automatically under the state constitution. It's one of only three states where that's true, automatic disenfranchisement of every single person who has a felony conviction until the governor sees fit to individually restore their right to vote.
Michael Pope
So in terms of this, in terms of this lawsuit. If I'm reading this correctly, it would be legal under the Readmission Act of 1870 to disenfranchise someone who had been convicted of a felony that you mentioned that list murder or manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. So if you're actually convicted of any of those felonies under the Act of Readmission Act of 1870, it would be legal to disenfranchise those people who have been convicted of those specific felonies, correct?
Vishal Agraharkar
That's right, but not for anyone else.
Michael Pope
But not for any people who have been convicted of what, we now have a very much longer list of felonies, mainly because of the war on drugs. So this brings us to your three plaintiffs. Tell us a little bit about the three people actually bringing this lawsuit.
Vishal Agraharkar
Okay, we have three individual plaintiffs and also one organizational plaintiff. And these are people who are disenfranchised for things like drug offenses, and there's one charge of something called uttering, which is essentially the use of a forced instrument. And, of course, there are many, many more types of felonies that are not common law felonies at that time. And our view is, for each of these people, they've been disenfranchised; they haven't been able to get the right to vote back in Virginia, despite some efforts. And our view is that they should never have been disenfranchised in the first place. That was the intent of Congress when they passed this law, which was intended to prevent some of the former Confederate states from manipulating their criminal laws to disenfranchise Black people in particular. And there's a long history that we detail in our complaint of efforts by Virginia and by other Southern States to manipulate the criminal codes to disqualify as many Black people as possible from voting, and they were quite explicit in those efforts. And so our view is that this is still good law. It has never been repealed. And we're bringing this up now to correct this historical wrong.
Michael Pope
You mentioned manipulating the Criminal Code. I remember from reading some history from Eric Foner, who had extensively chronicled this time period, that this was a time when a lot of southern states were changing their criminal code to make things felonies that had not previously been fillings. For example, they made stealing a horse a capital crime, for example, which it had not been previously. So how do you explain this manipulation that was going on at this time period?
Vishal Agraharkar
There was the addition of a lot of different felonies and nonfelonies that, at that time, and in various states were then causing people to lose their right to vote. Since then, of course, the criminalization of everyday life has expanded greatly. There are so many more felonies today that exist in Virginia. And what's critical is that in Virginia, every single one of them leads to disenfranchisement. So this disproportionately impacted Black voters in Virginia. Disenfranchisement among black Virginians of voting ages two and a half times as high as the Virginia voting age population as a whole. And Black citizens make up nearly half of all citizens who are disenfranchised because of a felony conviction, despite there being less than a quarter of the total voting-age population. And so this is directly traceable to this constitutional provision that we believe was never allowed to exist in the first place.
Michael Pope
Yeah, and take us inside the minds of members of Congress in 1870. So it's worth pointing out to our listeners that the Virginia delegation in the year 1870 was zero. Like when they passed this anyway, later in the year 1870. They were members of the Virginia delegation, but in January of 1870, when Congress sent this bill over to President Grant, there were no members of the Congressional delegation from Virginia because Virginia had not yet been readmitted to the Union. Also, this was a Congress that took the stuff really, really seriously. This is the part that I want to make sure our listeners understand. For example, Georgia had been readmitted to the Union. But then, because of the actions that happened in Georgia, when they were trying to get rid of Black lawmakers, Congress kicked them out of the Union, and they had to be readmitted. Right. So like, explain to the extent that you can how important this was to members of Congress in 1870 when they passed this law. This was
Vishal Agraharkar
critical. I mean, this is what this is, at a time when we had just fought a bloody civil war over slavery. And this was a time when the politicians in the South were making it no secret that they wanted to ensure white supremacy and prevent this newly freed class of citizens from being able to be a political force in the South. And that's exactly what Congress was trying to prevent from happening. And that's why they call it a fundamental condition of Readmission. One of just three, they understood that, that these legislatures in the South would try to expand the classes of people who would be disenfranchised because of felony convictions. And that's what they were trying to prevent at the time.
Michael Pope
So since this Act was passed in January of 1870, Virginia has had three different state constitutions. Later that same year, there was what is known as the Underwood Constitution. And then, in 1902, they did a 180. And they had, like, essentially, the Jim Crow constitution, then that our modern Constitution is from 1971. This issue of felony disenfranchisement that part of all three of those, or did that really kind of start in 1902?
Vishal Agraharkar
1902 was a really critical time; a lot of our complaints actually focus on 1902, a constitutional convention where, you know, an all-white legislature included several different measures that were very explicitly intended to suppress Black votes. And so those included things like felony disenfranchisement, but also poll taxes, literacy tests, and grandfather clauses, all of which have since been done away with the exception of felony disenfranchisement. And the delegates to that convention made no secret of their intention to strip Black citizens of their vote, and they were very explicit about it, and to eliminate Black voters as a factor in Virginia politics. So this lawsuit is trying to reverse some of that, and the provision of the Constitution that disenfranchises everyone for felony conviction still exists in the Constitution hasn't been changed. And so that that's what we're hoping to, to get out with this lawsuit.
Michael Pope
You walk us through a bit of that history there. I think this is important to underscore for our listeners the ping-ponging here that went back and forth. So the 1870 constitution got rid of the poll tax and did not have felony disenfranchisement. It was very progressive from a modern perspective; the 1902 constitution went in the opposite direction; it undid a lot of that stuff. And as you pointed out, if you go back and read the minutes of that convention, you will see that they were quite explicit. They were not mincing words, exactly why they were doing what they were doing. The part of this I've never really been able to figure out was in 1971. Why did they keep this stuff? So like, the poll tax was gone, but like felony disenfranchisement, they could have gotten rid of that in 1971. But they didn't. Right?
Vishal Agraharkar
That's right. It's. Still, it's the only one that still exists today in some, and there have been some court cases limiting some of the other provisions. But felony disenfranchisement has stayed. And I'd point out also after 1902, or around that time, and I think about four years, at the turn of the century, after some of those barriers to voting were implemented, the number of Black voters in Virginia dropped by about 90% In just four years. So it had an enormous impact very quickly.
Michael Pope
And just to be clear, that's the impact they wanted. Right? That was the point of creating those limitations, like goals achieved. Right?
Vishal Agraharkar
That's right. And that's what they explicitly said. And that's what they explicitly achieved.
Michael Pope
Now, Virginia is the only state that requires people convicted of felonies to individually petition the governor to restore rights, right?
Vishal Agraharkar
That's right. It currently is. Three states in the country, Virginia, Kentucky, and Iowa, whose constitutions kind of similarly disenfranchise everyone convicted of a felony conviction, regardless of that felony conviction, and then require them to individually get their rights restored by the governor and on the other two states. And in Virginia, to some extent, until recently, there was an automated process where people could get their right to vote restored that the governor had set up, but under the Constitution, it was still up to the governor to individually do that. Now, in recent months, we've kind of learned through reporting and otherwise that the current governor has, has kind of gone back on some of the reforms that have been put into place by governors of both parties over the past 10 years or so to streamline the process and now apparently, is requiring individual applications and is reviewing each person on a case by case basis. So it's kind of back to being the only state in the country where it's both automatic disenfranchisements, and that's permanent until the governor restores your right and also that the governor is reviewing each petition individually, which potentially delays and prevents people from getting the right to go back quite significantly.
Michael Pope
So Virginia currently has more than 300,000 people who have lost the right to vote because of this automatic disenfranchisement. I would imagine some of those people were convicted of felonies on that 1870 list of felonies that are essentially it's made from the perspective of this law. It's okay to disenfranchise people who have been convicted of murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, or larceny. But there's another list of mainly war on drugs, offenses, and stuff that was added in the 1990s as felonies. And those clearly are not on the 1870s list. Do we have any idea the percentage of that 300,000 People that have lost the right to vote are on the list where it's okay to disenfranchise them under the 1870 law versus the ones that aren't?
Vishal Agraharkar
At least, I don't have a great sense of exactly how many, and I think it's something that certainly, as the case progresses, that's going to be a question that we look into if it gets to that point. So we don't have a great sense of exactly how much, but we know that it's going to be significant. And there are probably many thousands of people who've both been convicted of and lost the right to vote and continue to be disenfranchised as a result of the conviction that's not on that list.
Michael Pope
I'm also interested in making sure that I underscore the disproportionate nature of the disenfranchisement, so Black people represent about 20% of Virginia's population. However, Black people represent about 50% of felony disenfranchisement; is that right?
Vishal Agraharkar
That's right, the disproportionate impact of this provision and felony disenfranchisement in Virginia was both the kind of intended effect when this provision was put into the Constitution, but it also has had its effect, and it continues to have that effect today.
Michael Pope
So you mentioned earlier that, as the case moves forward, we might get some more clarity about the actual numbers of people that are involved in being illegally disenfranchised. What has been the reaction? I would imagine there has been a lot of interest just in the quirky kind of, you know, novel use of this 1870 law. What kind of reaction have you guys gotten to this lawsuit?
Vishal Agraharkar
It's been supportive. The case is actually quite early at this point. We have just filed the lawsuit, and we are still waiting for the state's response in court, which we should have in the next few weeks. But in general, we have had a lot of people reaching out to us to support us in this effort.
Michael Pope
So all of the southern states that were readmitted to the Union, which is all of them, they all had their own individual readmission acts. To your knowledge, have any of those ever been used in a similar lawsuit?
Vishal Agraharkar
To our knowledge, this is the first lawsuit under this Act that has challenged the felony disenfranchisement provision. So this is a novel area of law that we have not seen being litigated before. Typically, the challenges to felony disenfranchisement provisions have generally been under the equal protection clause of the 14th Amendment and other voting rights protections that are more typically used in voting rights cases. So this is a kind of new area in that regard.
Michael Pope
So I'm also curious about the remedy. So if the judge agrees with you, and if it holds up under appeal, what is the remedy to the problem of these people who shouldn't be disenfranchised? Like what could the courts make happen as a result of a ruling in this case?
Vishal Agraharkar
Surely, that will obviously be, to some extent, a question for the judge. However, what we're seeking is a remedy that would ensure that people who were convicted of felonies other than those that are on this narrow list would never have the right to vote taken away in the first place. So they should be eligible to vote at all times. And so this is consistent with what my organization, the ACLU of Virginia, has advocated in the past for a constitutional amendment. Which is another way that the Commonwealth can address this issue, which is to simply, well, it's not simple, but to amend the Constitution to adjust and change this provision, which is something that the legislature can do and submit to the voters. And we hope that they do, and it's gotten some support in the past. And what we want is for the Constitution to essentially guarantee a right to vote to all citizens that can't all citizens over the age of 18, that can't be taken away by the government. So this essentially would mean that a criminal conviction should have no bearing on whether or not you can vote. And that is the law in some other states in Vermont, and in Maine, and in the District of Columbia. Internationally it's generally the norm that these two things are not linked. And that's where we hope Virginia is going to go. And we, and a remedy in our case, is not going to get us all the way there. So ultimately, this is just a piece of what we want to see happen, which is that the right to vote is guaranteed to everyone. But we do think it will get us a lot of the way there.
Michael Pope
So you have just laid out what the ultimate goal is and how this lawsuit could work toward that ultimate goal. Returning to the question of this particular lawsuit, and the remedy that a judge or a court might order as a result of it, I'm just wondering if a court, for example, could say, if you were convicted of one of these nine felonies that were part of this 1870 list, it's okay to disenfranchise those people. But if you're not on that list, it's not okay to disenfranchise those people. So could the court order that everybody that doesn't fall onto this list of one of these nine felonies have their rights restored? Is that a potential remedy for this?
Vishal Agraharkar
That's exactly right. That's what we're hoping for; we're hoping for an order that would provide that everyone who was convicted of a felony that is not on this list would not be able to have the right to vote taken away, to begin with. So it would mean restoring their right to vote, but then going forward, not permitting their disenfranchisement in the first place.
Michael Pope
And this would restore the right to vote of anyone who has been convicted of any felony. That is a war on drugs era felony, right.
Vishal Agraharkar
That is right, any kind of drug felony, that's right. Certainly, if it, for example, fit into one of these narrow nine offenses and related to a drug offense, you know, that that wouldn't count, but certainly in a drug possession offense or a simple offense, just based on drugs, that that would certainly fall within this list under any interpretation.
Michael Pope
But if they were convicted of more than one felony, and one of those did fall in this list, I mean, like, I would imagine, there probably would be many cases where one felony conviction was on the list, but one felony conviction was off the list, right? Those people would fall into not having their rights restored as a remedy for this particular lawsuit.
Vishal Agraharkar
Yeah, that's right. It's. Basically, the remedy that we're seeking is that you can't disenfranchise someone because of a conviction for a non-common law felony. So certainly, there'll be people who might have multiple felonies, some of which are eligible, some your common law felony at the time, and some which aren't. So there'll be some sorting out to figure out who's actually applicable who has multiple felonies, but the remedy would, that we are hoping for would be that if the disenfranchisement was due to a non-common law felony, that that is not okay, under the Virginia readmission act.
Michael Pope
So you mentioned earlier that we're still really early in this lawsuit, and we have yet to get a response from the state. I'm wondering if the ACLU has been approached by other groups that want to sign on to your lawsuit and file briefs in favor of it.
Vishal Agraharkar
It's a little early to say about that. But I do anticipate that this case as it progresses, and if we're able to have some success, that will draw quite a bit of attention from other groups that have an interest in what happens here.
Michael Pope
This is so fascinating; it's a really interesting lawsuit. I really appreciate you coming to Pod Virginia and talking about it. Anything else you want to say in terms of what people should be thinking about and what people should know about this lawsuit as it moves forward?
Vishal Agraharkar
Just that, felony disenfranchisement is a relic of this reconstruction era where lawmakers across the South were enacting laws that were designed to keep Black people from voting, and that's what Congress was trying to address when they passed the Readmission, the Virginia Readmission Act and the other readmission acts, it has been ignored for too long. And we're hoping that this lawsuit is part of what helps to correct what we think is something that has been ignored for too long and has been a trend that we hope to reverse.
