Why are Virginia felons disenfranchised?
Virginia's legislature is considering a constitutional amendment that could make felon re-enfranchisement an automatic process. Episode guests are A.E. Dick Howard, a UVA professor and author of Virginia's 1971 Constitution, and Paul Levengood, Executive Director of The Marshall Foundation and former president of the VA Historical Society. They brief the Transition Team on why the Blue Ribbon Commission to update Virginia's 1901 Jim Crow constitution still included felon disenfranchisement and what the General Assembly should do about it now.
Michael Pope
Welcome to Transition Virginia, the podcast that documents the ongoing transition of power in Virginia. I'm Michael Pope.
Thomas Bowman
And I'm Thomas Bowman. Today on the podcast, felon disenfranchisement, the controversial constitutional constraint that Democrats have wanted to undo for years. Now, the General Assembly is considering a constitutional amendment to ditch the provision and allow former felons to vote without petitioning the Governor to restore their rights.
Michael Pope
Now, you may think of felon disenfranchisement as something that was created during the era of Jim Crow and you're not alone. Many people have talking points that say something like felon disenfranchisement was created in the Constitution of 1902. But felon disenfranchisement actually stretches all the way back to 1830, during the Age of Jackson, that's 70 years before the Jim Crow Constitution.
Thomas Bowman
So felon disenfranchisement was not created to exclude Black voters during the era of Jim Crow, but it was, undoubtedly, weaponized during a convention that brought back the poll tax and made a new literacy test, specifically to disenfranchise Black voters and poor White voters. And it worked. The electorate was cut in half. Today, one in five Black Virginians are permanently disenfranchised.
Michael Pope
The African Americans make up about 1/5 of Virginia's population, but more than half of those disenfranchised. Virginia is one of only 11 states that permanently disenfranchises voters. And that's why the General Assembly is considering a new constitutional amendment that would be on the ballot next year to ditch felon disenfranchisement. And we've got a fantastic panel to dig into this issue. Joining us is the founding father of Virginia's current constitution. He was Executive Director of the commission that wrote the 1971 Constitution. That's the one that we still have today. He's the Warner Booker distinguished professor of international law at UVA, A.E. Dick Howard, thanks for joining us.
Dick Howard
It's great to be here.
Thomas Bowman
Also joining the Transition Team is the former president of the Virginia Historical Society. He's currently the George C. Marshall Foundation president, and he's making a return appearance on the podcast, Paul Levengood, thanks for joining us again.
Paul Levengood
It's great to be back.
Michael Pope
This is such an exciting panel. I'm really glad that I talked both of you into actually doing this today, to walk through these different constitutional issues and talk about felon disenfranchisement. And, you know, perhaps we should set the stage here by talking about the very first Constitution, the- which happened in 1776. So let's set the stage here and talk about that, that founding document, and, and who was able to vote. So obviously, we're not talking about women voting, right? And African Americans can't vote. And even poor Whites can't vote, right? So like back in that 1776 Constitution, who was able to vote?
Dick Howard
Well, that's an interesting document. It was drafted in Williamsburg in May of 1776 by George Mason and his his distinguished colleagues, and that declaration of, famous Declaration of Rights, opens on a very inclusive note. It seems- it talks about constitutions being made for the common benefit, it talks about the natural rights of all men. So it opens on a note of inclusiveness. But then when it turns to the question of who can vote, it's rather more qualified because the drafters who met in Williamsburg were not interested in enlarging the electorate at that time. Indeed, they talked about how, if you want to vote, you have to show that you have some permanent interest in, and attachment to the community, language of that sort. And, of course, what they were talking about was property owners back in those days, it was even among the white male population, if you didn't own property, you didn't vote. It's interesting, turning to our topic today, it's interesting that the 1776 Constitution does not explicitly talk about people who are disenfranchised because of crime. That's something that actually appears later. When that first Constitution was ultimately revised, there was a great convention at 1829 and 30, the first rewrite of the Constitution, that's when they begin to include constitutional language about who's not allowed to vote. So in the intervening years between 1776 and 1830, disenfranchisement was a matter of statute, it would be only in the code not in the Constitution. Apparently, in 1829, and 30, at that convention, they began to think well, maybe we ought to make it clear in the Constitution itself. So that's, so that's when they, they don't yet use the word felony, but they use something very like it. They talk about disqualifying people for what they called, "infamous offenses," leaving that, I suppose, to judicial interpretation or legislative implementation.
Michael Pope
Mr. Levengood, I want to bring you in here and and sort of set the stage in terms of what was going on, the political environment in 1830. So we're talking about a time period here, the Age of Jackson, as we, as we mentioned in the intro, where this was a time when you had more and more people who were wanting to be part of the process. So you had White men who did not own property, but they wanted to vote. And so there was sort of a movement. And can we sort of view the 1830 Constitution as kind of a reaction to that?
Paul Levengood
Yeah, I think in a lot of ways, that's true. I mean, just to put a little bit of context around this, by the time the convention sits, Virginia is one of only, gosh, I can't remember exactly, but it's very few states that had still limited voting to landowners. That that was, in some ways, very much an antiquated notion. And, obviously, in the Age of Jackson, the move toward more popular participation in electoral politics is a hallmark of the era. So I think the other thing that you have to remember is that Virginia, in some ways, in the early 19th century, really into the mid 19th century, is a tale of two states. It's Eastern Virginia, which is still dominated by large plantations, big planters, kind of entrenched power that went back generations. And then Western Virginia, which is more newly settled, less dominated by the plantation system, and large scale slavery at and so it's, I mean, maybe it's a little overly simplistic to call it, you know, planters versus Yeoman farmers, but always a little more complicated than that. But it really was a question of whether Virginia would continue to be dominated by those who had held the reins of power, since, as Dick said, the 1776 Constitution or whether this would be a sort of expansion of the real small d, democracy, that seemed to be a legacy that many Virginians thought came out of the revolution, but they were not able to enjoy. So it is very much of the time, as all constitutions are, really created by the circumstances in which Virginia found itself in this tension over the scope of participation in power by not just common people, but even you know, people of means in a part of the state that felt they were being held back by the entrenched interests in the East.
Michael Pope
I want to read part of this language here from 1830 and get a reaction to it because it is kind of, I think this language is really interesting, where they deny the right to suffrage to quote, "any person of unsound mind, or who shall be a popper, or a noncommissioned officer, soldier, seaman or marine in the service of the United States or by any person convicted of an infamous offense." So this is an interesting group of people they've chosen to deny the franchise here to. And it's, I mean, essentially people who were in a state of dependence, right? So like a convicts and servicemen, or people who have maybe, in some ways, ostracized themselves from the interest of the community? What do we make of this list here that's in the 1830 Constitution in terms of who can't vote?
Dick Howard
Well, it seems to me that there's almost point counterpoint, taking place here because as long as the ballot was limited to property owners, as it had been in 1776, then the drafters, the people in power, didn't have to worry as much as they would at a later point in time about who should be disqualified. But as you get, as Paul points out, the Jacksonian period, the enlargement of democratic notions, the franchise's given to more people, then those people drafting the 1830 Constitution say, "Well, if we're going to move at all in that direction, we have to think about making exceptions to that enlargement." And the enlargement they made was a fairly modest one, they refuse to create universal White manhood suffrage at that point, they did extend extend the franchise somewhat modestly, to lease holders, to people who might be- own a big house in town, but maybe didn't own a lot of land. So they're moving a little bit in the right direction. But as the electorate gets larger and larger, finally, in the 1851 Constitution, they do, at that point, reach something like White universal, White male suffrage. And at the same time as the on the other side of the coin, they're saying, "Well, let's be careful now, there's still some people that don't belong." And I think the key, they use the word "dependency," and I think that's a critical notion, because in the early 19th century, one of the political theories that are bounded, even among people that you might call, "liberal minded," was that in order to be entitled to the ballot, to be a voter, you had to show you were independent of judgment, you were not dependent upon somebody else, so that they would be telling you how to vote. I think that's one of the themes that runs through the modest step by step enlargement of the ballot that takes place in the early 19th century period.
Paul Levengood
Dick, do you remember from any of the arguments or discussions at the 1830 convention, was there any discussion about even the prospect or the possibility that slavery might be...I mean, let's put it this in context. By 1830, you have a growing abolition movement around the world. There's, you know, the colonization movement and questions about slavery in Virginia, have come to the fore. Obviously, you're just before Nat Turner's Rebellion. So it's, there still has been intellectual conversation and religious conversation around slavery. Do you think there was any hedge being put here in the 1830 Constitution? Should slavery either be eliminated or changed in some significant way when you talk about dependence? Because, of course, slaves are the ultimate in dependence in the minds of White Virginia's in 1830.
Dick Howard
I think when they were talking about dependency in the life, they really still had in mind, largely the White male population. Of course, the notion that women would vote was not on the table at that point. And I think it's a little bit early for them to have been thinking about, "Well, what would happen if abolition came about?" I think they were assuming the old order would stay in place indefinitely. And as you say, Paul, the Rebellion, Nat Turner's Rebellion takes place a little bit after this. I think there's the notion that they're aware of abolition, they're aware of manumission notion of colonizing, sending Blacks back to Africa and all that sort of thing. I think, really what they basically have in mind in the 1829/30 convention debates is as we move in this sort of Jacksonian direction of a larger franchise, we really have to worry about the kinds of people, really poor Whites, people who might be, not not have their own freehold and the like, and there are more and more of them. And I think you're right in emphasizing the sectional debate, East and West, it's the Piedmont, the valley and the trans mountain regions of what is now West Virginia. These are where the areas are growing in population, and were becoming more prosperous, land was wearing out in the East and the plantations were not as productive as they had been, and yet the East was very much in the saddle. Indeed, I would have to say after 1830 until 1851, the old Eastern Tidewater counties still had the majority in the legislature, and they were still able to, for that 20 year period, be the ones who were making state policy.
Thomas Bowman
Virginia's ruling elite is concerned with who gets to be part of the in group and who's part of the out group, and so in 1851, they add bribery to the list of infamous offenses. And then after the Civil War in 1870, they include treason and corruption. What do we make of those additions? And how does that fit into the through line, that is felon disenfranchisement in history?
Dick Howard
Well, I think if you're talking about the successive enlargement of the franchise from 1830, to 1851, to 1870, right on through the 19th century, there, not only is there a concern about who is independent enough to be able to make a judgement without looking to somebody else to sort of call the call the Piper, I think, as the electorate gets larger, and also as you begin to get immigration, especially in the North, but to some extent in Virginia, from Ireland, and Germany, and other other places in Europe, the people who are running the show, the the leading leaders of the political system, are increasingly worried about electoral corruption. They're worried about people who are not only dependent in the economic sense, but people who basically will buy or sell their vote. And so this concern about corruption, and the like, really sets in, I think, in a big way in the mid 19th century. And it's increasingly going on. I'm sure we'll talk about the Reconstruction Period in a few minutes. But it's increasingly on the minds of Virginia legislators and political leaders that they have to sort of save Virginia and its people from electoral corruption.
Michael Pope
And there is some irony here the that the 1870 Constitution says, "If you've been convicted of treason, or corruption, you cannot vote." And the irony is that this ushered in an era of unprecedented corruption, right? Mr. Levengood, set the stage here in terms of just how corrupt was Virginia politics in the late 1800s?
Paul Levengood
Well, I mean, this is the era of machine politics, not just in Virginia, this is a national phenomenon. But Virginia certainly had these kind of succeeding waves from the Readjusters in the late 1870s, into the early 1880s. And then the various democratic machines that followed it, which, regardless of whether they came about, due to calls for anti corruption, or purifying the ballot box, as they used to put it, ended up in the same kind of vein of being dispensers of patronage and loose organizations that did really control almost every aspect of political, and in some ways, social and economic life in Virginia. So, of course, one man's corruption is another man smart exercise of political power. And it's also always very interesting to see where people draw those lines. But it seems as if every movement against a machine or against a corrupt administration of political power kind of begets another, maybe, in some ways different, but another version of kind of corruption of itself. So we all talk about the Byrd Machine and before that the Morton Machine and the Readjuster Patronage Machine, though short lived it was, this is certainly an era in which the deals are made in smoky back rooms, there are a couple of people who pull the strings. And quite interestingly, of course, the the role of Virginia's national figures, it's statewide officers, its senators, play an enormous role, perhaps a very unfamiliar role to those of us in the 21st century, in state politics themselves, that the sort of flag bearers of the Commonwealth are often, as you see, the the people who are representing Virginia in Congress, rather than a governor or a state legislative leader. And so there's a very interesting, very hierarchical, kind of top down administration of this kind of machine politics.
Thomas Bowman
Now, one definition of that corruption involves courthouse rings, stuffing ballot boxes, etc. But after the Civil War, especially after the 1870 Constitution, the definition of corruption itself gets corrupted. You know, Michael forwarded me a really fascinating article about the Virginia Constitutional Convention of 1901, where they talk about corruption, as corruption of the electorate involving Black people, so we get racially tinged definitions of corruption. As we move into the 1902 Constitution, as we move into our next segment, can you explain or expound upon how the definition and popular conception of corruption changes from one of progressive reform, to one where they're using corruption as a vehicle to euphemistically discuss race?
Dick Howard
I think it's absolutely important to realize that It's after 1870 that race becomes part of the picture. Before the Civil War, of course, Blacks were largely slaves, there were a handful of freedmen. But after the Civil War, as the price of rejoining the Union, the former Confederate States were obliged to ratify the 14th Amendment, and to write a new and progressive state constitution. And in the drafting of that 1870 Constitution, the traditional White conservative leader, pre Civil War leadership, were excluded. So you've had a convention where I think like 25 members of the 100 or so members of that convention, were actually Black, mostly mostly former slaves, some some freedmen. And you have a Constitution, which after that point, is say Blacks are part of the part of the electorate, and many of them, indeed, about half the electorate after 1870, was Black. Paul mentioned the Readjuster Movement, and you had counties in Virginia, say in Southside Virginia, were more they were a majority Black counties. So in many elections in Virginia, in the late 19th century, Blacks were the balance of power, they were actually being bid for by candidates. Well, that gives rise to twin concerns on the part of traditional conservatives, first, that concern about corruption, which was real enough, but also the concern that Blacks would be the people who would be helping decide public policy in Virginia. And that leads you right up to the 1901/1902 Constitution. It's clear that most of the delegates who were elected in 1901, to that convention, understood that they were there to disenfranchise as many African Americans as they could, that they wanted Blacks out of politics. They talked about corruption on the one hand, but they also patently clear that they understood the premise of Virginia government should be White supremacy, that the Anglo Saxon race was the natural superior race. And the Blacks, if they had a place in Virginia, belonged on the land, they belonged in the, to the cotton field or the tobacco barn. But they were clearly not going to be allowed to help shape public policy in this Commonwealth. So the, I think it the 1901/1902 convention, while corruption was clearly on the minds of the candidates, corruption becomes, as you pointed out, it becomes redefined in a way that it's not simply a matter of buying and selling ballots. It's also clearly a matter of the role that Blacks were playing and they were not to play in the future in the politics of Virginia.
Paul Levengood
And just remember, this is the period in which the White elite are defining African American participation in politics, in government, in these incredibly stark and awful terms. I mean, you think of the contemporary cartoons about African American legislators sitting in the statehouse, in Louisiana, or South Carolina, or wherever you want to pick. And this becomes very much a part of the White cultural conclusion that Reconstruction itself was this corrupt process, and that all it all it did was open Pandora's box to corruption and corruption, I think is, you know, as you've pointed out, comes very tied to race, to African American participation, that somehow African Americans are inherently going to be corrupt, politically, perhaps, because of what was conceived as a as their "inferior character." So that the Reconstruction Era, which remember is, you know, weighing very much on the minds of people in 1901, 1902, I think is really important as a shaper, for the impulse to this convention.
Dick Howard
There's a very poignant moment at the opening of the 1901/1902 convention, the President of the convention is making his remarks, sort of setting the stage. And he refers to the 15th Amendment to the U.S. Constitution, the one that says that there shall be no discrimination in voting on the basis of race or previous condition of servitude, or color. And he proclaims the 15th Amendment to be a crime against civilization and Christianity. This is the opening remarks, setting the stage, and of course, is general applause and agreement with that. And then one delegate after, that goes on during the debates to sort of pile on and say, "Yes, it's an evil that Blacks were allowed to ballot. It was the federal beonet that forced us to do this. It was punishing the South for what it had done." It goes on and on in that sort of vein, and one delegate gets up and says, "I want it to be understood. I'm a I'm a White man. I'm here to defend the interests of White people." And another says, "You know, we can't have this inferior race, telling us what to do." They they invoke history they invoke theology. They say it's God's plan for the universe that the White shall be superior, and the Blacks to be inferior. It just makes an amazing transcript. Today, I think you would probably dress it up in prettier language. But I have to say 1901/1902, the delegates at that convention made it patently clear what they were there for, and what they were there for was White supremacy.
Thomas Bowman
All right, that's a great segue into our next segment where we're going to discuss the 1902 Constitution. We're here with A.E. Dick Howard from UVA, one of Virginia's very own founding fathers, and Paul Levengood, of the George C. Marshall Foundation. I'm Thomas Bowman, and my co host is Michael Pope. We'll be right back.
Michael Pope
And we're back on Transition Virginia. We're talking about the history, the long and complicated history, of felon disenfranchisement in Virginia. And we're going to talk about the 1902 Constitution, which of course, is the Jim Crow Constitution, which has, of course, a very strained legacy. And people think about it in a very negative way, justifiably so. I want to set the stage by talking about a conflict that was going on inside the Virginia Democratic Party at the time. So Virginia was a one party state. So the Democrats held all the reins of power. But there was a huge debate inside of the Democratic Party, between the sort of Machine wing, which was led by Thomas Staples Martin, who was U.S. Senator who sort of led the Machine at the time. And then there was a separate wing of progressive Democrats. And they believed in things like free silver, better schools, better roads, and clean elections. And their solution to cleaning up all the corruption and problems with elections, was to disenfranchise Black voters. So this is counterintuitive to the modern mind, because we don't think of progressives as wanting to prevent Black voters from participating in the electoral process. But that's exactly what the Progressives circa 1902, were interested in doing. And so you had people like Carter Glass, who was a progressive newspaper editor in Lynchburg, and came to the convention, and became sort of the driving force here. What do we make of the political dynamics in 1902, that led to this Jim Crow Constitution?
Dick Howard
Well, there was an interesting dynamic between the more conservative, traditional Machine type leadership, and the Progressives at the convention. We tend to think of that era at the end of the 19th, beginning of the 20th century, as being the era of progressive politics. And my sense of what was going on, is that the more conservative factions needed the progressives on board to bring about the 1902 Constitution. And they were pretty much, all of them agreed, that the Black vote was a problem because it led to corruption, and it should be, African American's should be ousted from the suffrage. But there was also, as you say, this progressive thread. And so among the things the 1902 Convention did was to create the State Corporation Commission, railroads sort of bought and sold legislators, and they were, that was a corruption of a corporate kind.
Michael Pope
Worth pointing out here, that the Martin Machine was led by this U.S. Senator, Senator Martin, who was a railroad executive, who used money from the railroads to finance his campaign. So this is sort of like the, in today, in our modern context, we think about money from Dominion. But in this era, we're talking about railroad money. And of course, that's how Martin came to power and maintain power was railroad money. So what you're talking about is the State Corporation Commission was a reaction to that, right?
Dick Howard
That's, that's correct. I think the creation of that commission was a gesture in the direction of the populist, who the more conservative wing needed to have on board, and I think by and large, the 1902 Convention, if you judge it looking back at what progressives hoped would happen, was a failure. I mean, despite the creation of the Corporation Commission, they get- to give you an example, it was the 1902 Constitution that introduced the poll tax as a prerequisite to voting. Now that was only $1 and a half a year, doesn't sound like a lot of money to us today, but in 1902, to a working man, that was a lot of money. And so the combination of the poll tax, and fairly complicated registration procedures, which were nominally directed at Black voters, turned out to disenfranchise a large number of poor Whites. And the actual number of people voting after 1902 plunged not only among Blacks, most of whom were disenfranchised, but a lot of poor Whites as well. So the result was to reinforce Machine rule, the Martin Machine morphed into the Byrd Machine, Harry Byrd's Machine. And so people who might have been a progressive state of mind, I think were worse off after the 1902 than they were going into the convention.
Thomas Bowman
Say that one more time, Dick? How much is that poll tax?
Dick Howard
Dollar in a half.
Thomas Bowman
Dollar 50. So-
Dick Howard
It was also cumulative. If you didn't pay it last year, you owed $3 this year.
Thomas Bowman
So what's interesting about that is $1.50 in 1902, is worth $45.62 in 2021. So imagine, basically, every year you wanted to vote, getting slapped with a $50 charge.
Dick Howard
Not only that, but the registration requirements were very complicated. You, to register, in that first round of elections after 1902, if you were a property owner, you were automatically on the rolls, that was not a problem. If you were a son of a Confederate veteran, you got the- this is the so called, "Grandfather Clause," you got to vote. Otherwise, you had to go and register and the registrar could present you with the Virginia Constitution, and open it to any place at random, show you a section of the Constitution, ask you to interpret it. Well, there are provisions of the Virginia Constitution that I can't really interpret. So if you're just the average citizen back in those days, and the registrar decided he didn't like the cut of your jib, he could just say "Sorry, you didn't interpret it, that interpretation won't do," Now, this, again, was aimed particularly it would be Black voters, but it could be applied to White voters, as well. So when you take the poll tax, and the registration requirements, and all the rest of it, and you're a working man, why would you take off a day day and you lose a day's pay to go in and go through the process, which probably was going to be unsatisfying anyway? So I think it was all structured in a way that the Black voter was the was a nominal and the real object of these revisions. But there was a collateral sort of effect on poor Whites, there were some points in the convention debates where delegates would not only say, "We want Blacks off the rolls," but they would say, "We don't want the rebel. We want people who are respectable people to be exercising the franchise and running the state." So I don't think they were as upfront about that, as they were about disenfranchising Blacks, but they were not uncomfortable with the notion that they ought to keep the hands of the state, and its policy in the hands of the of the right people.
Paul Levengood
And can I just jump in and make a note about Progressivism? And remember, Progressivism is a national movement, but it had quite different interpretations regionally. So and, but but one of the things I think that, you know, if you look at the overall goals of the Progressive movement, it was toward efficiency and against corruption and against waste. And so I think, really, in the Southern context, in a place like Virginia, the corruption can be interpreted in a way that if you were a progressive in, you know, Chicago, and you were you maybe thought that big city bosses controlling immigrant votes was inherently corrupt. Similarly, I think, for some progressives in Virginia, they legitimately thought that Black votes were easily manipulated by powerful Whites. And so I think there may have been some initial impulse toward some of the tenets of the Progressive movement, but they take on this starkly racial tone in a place like Virginia, that is very much at odds with maybe our conception of Progressivism today. And we have to of course, distinguish between the use of progressive in current political terms with what would have been considered progressive in the early 20th century, but I do think that's, it's kind of an important thing when we we learn about Progressivism at school, we we tend to focus, I think, on more on Northern locations, and less on places like Virginia, where Progressivism kind of had a different variant. Let's put it that way.
Thomas Bowman
It was very populist to be progressive back then, you even have president at the time, Teddy Roosevelt, getting elected on a progressive platform. So I find it fascinating, Paul, your point that Progressivism bore regional characteristics for sure.
Paul Levengood
Absolutely. Absolutely.
Michael Pope
You know, it's it's really interesting that there's this Southern flavor of Progressiveism that was so racist. And it's actually difficult for the modern mind to think of progressives as being racist. But, Mr. Levengood, you were making this point, but it's worth sort of sort of underscoring this. The progressives from this era, thought the Black vote was inherently corrupt, because their view was the Black vote was for sale. And so preventing Black people from voting, was a way to, in their minds, clean up elections, right?
Paul Levengood
Absolutely. Now, I mean, obviously, inherent in that judgment, is that somehow Black votes are for sale, because Blacks are willing to be corrupted. So there is a, you know, there are assumptions undergirding that, but I think that's absolutely the case.
Michael Pope
You know, one other point about 1902 that's worth mentioning. This was sort of alluded to earlier, but it's, again, worth underscoring, is how openly willing they were to talk about White supremacy and racism. I mean, so today, you would, you would try to do dog whistles, or try to, you know, use other language, but they literally are talking about White, they're using the words, "White supremacy," in this in this Constitutional Convention, right?
Paul Levengood
Dick pointed this out, this was not, this was not coded language. This is this was very, very overt, that the goal, the goal of this was to disenfranchise Black voters and to, although they stated their goal was to not disenfranchise too many White voters, that was a result of this, but I think they were very clear what they were doing. And it's, as Dick mentioned, I think today, you would not have been quite so you know, bald faced about it, but they certainly were.
Dick Howard
You mentioned Carter Glass, there was a point in the debates where he he was formatted through the franchise provisions, and one of the delegates asked him about the poll tax and the registration requirements and all that and said, "Well, you know, won't these provisions discriminate?" And Carter Glass said, "Discriminate? What do you think we're here for? We're here, we're here to discriminate just as far as the U.S. Constitution will allow us to do." And what he had in mind was the Supreme Court in 1890, had decided to challenge to the Mississippi Post Reconstruction Constitution, that was the one that about 1890 started all this off, it had the poll tax, and the grandfather clause, and the registration requirements, all that, the ones they used in Virginia, and the U.S. Supreme Court had rejected that challenge, rebuffed that challenge, on the grounds that on the face of it, the Constitution was looked to satisfy the requirements of equal protection. And they weren't willing to look into how these laws might be administered in practice. So they, they basically, were giving a green light to the Post Reconstruction conservatives in the in the South, generally. So each of the four Confederate States, between 1890 and 1902, rewrote their Reconstruction period constitutions to have a Post Reconstruction Constitution, that set out to disenfranchise Blacks.
Thomas Bowman
You know, what I find quite fascinating about this point in history is, you have one of the few times in history where progressives, however you might define them, are in charge, relatively, of Virginia General Assembly, they put together this Constitutional Convention, and appoint four independent Democrats to some of these commissions and committees, who in turn, appoint conservatives, to the rest of them. And so, one of the criticisms about this era is that you get progressive reformers, who they said got hoodwinked by corporate interests into making them even more powerful. So you have a few, let's call them legitimate bones of contention, with the existing system. So one thing they want to do is get rid of courthouse rings, where the General Assembly appoints judges, and those judges appoint local officers, like Commonwealth's Attorney, sheriffs, clerks of the court, who carry out that judges interpretation, and it leads to very cliquish ruling classes and localities. One thing they want to do is install the State Corporation Commission to control rates, which we still see as a political flashpoint today, back then it was for, you know, railroads and insurance, today it's for electric utilities, etc. But we see the roots of a lot of today's issues, and one of those issues that really start in their modern dialogue, and their modern context, is felon disenfranchisement. So, Dick Howard, will you explain the through line, where are we on this through line of felon disenfranchisement once we get to 1902?
Dick Howard
Well, as we've talked a bit about the 19th century and how the word, "felony," as a grounds for disenfranchisement, came into the Constitution in 1870. In 1902, the drafters of that constitution, vastly expanded the classes of people who would be disenfranchised, not not only felons, but oh, in treason and the light, but also bribery, petty larceny, obtaining money under false pretenses, embezzlement, forgery, perjury, on and on and on, that was clearly aimed at Black voters on the theory that they would be convicted of these petty crimes and therefore they would be disenfranchised right along felon with felons. Well, in the drafting of the 1971 Constitution, the present Constitution, the Commissioner of Constitutional Revision, eliminate all all those those other categories, petty larceny and the like, but kept the felony disenfranchisement. I have to be candid to say, I don't think the commissioners who worked on the present Constitution had the problem of felony disenfranchisement, front and center the way we do now. Because it's not enough that a constitution be neutral on it's face, you really have to think about the impact of it. And as you pointed out, already, the- so many more African American persons of color, who are disenfranchised by the felony provision, then is true, the White population, vastly disproportionate. So if you think about the actual effect of felony disenfranchisement, it is a running sore in Virginia politics. I think the commissioners who worked on the draft that became the present Constitution, I think they thought it was enough that the Governor could restore the voting rights of felons on application. And 50 years ago, when the present Constitution came into being, felony disenfranchisement was far more pervasive among the American States than it is today. It's a practice that's happily atrophying. And I think one of the assumptions the commissioners made in producing the present Constitution was that the Governor could really handle the problem. It's clear to me, reading the present Constitution, that the Governor has the power to restore the rights, voting rights, of former felons. As a class of people, he can do it wholesale as well as retail. That's my reading of the Constitution. It happens that in a case that was brought when Governor Terry McAuliffe set out to dissent to restore the vote to about 200,000 former felons, the Supreme Court of Virginia read the provision, I'm talking about much more narrowly than I would have would have read it. And they said, "No, sorry, the Governor has to restore voting rights, one at a time, each one on its own on facts." I don't say I don't agree with that reading of it, but the Virginia Supreme Court, after all, does have the final word on what the Constitution means, so that that ruling has simply heightened the, I think that the fact that looking to the Governor to solve the problem isn't enough. I think what's now needed is to change the language of the Constitution itself and either remove felony disenfranchisement altogether, or at the very least, make it clear that once a former felon has served his or her time in prison, once they're restored to society, they should become a citizen in every sense of the word, they should be, automatically at that point, be restored to the ballot.
Paul Levengood
If I could just jump in, too, I think it's important to remember that the 1971 Constitution also did not anticipate the War on Drugs, which has exploded the prison population.
Thomas Bowman
Why don't we take a quick break so that we can come back and discuss the 1971 Constitution in depth. We've got one of those Founding Fathers here. We're joined by A.E. Dick Howard from UVA, as well as Paul Levengood of the George C. Marshall Foundation. We'll be right back.
Michael Pope
And we're back on Transition Virginia. We're talking about the long and complicated history of felon disenfranchisement in Virginia, tracing it all the way back to its roots in 1830 and how it developed in the 1800s. And of course, was weaponized in the era of Jim Crow. So we arrive at 1971. And Mr. Howard, you're there, present at the creationists they say. Talk about the discussion, if there was any, on felon disenfranchisement. You and your compatriots chose to keep it in the Constitution. So we've got it in our current Constitution, of course. What- was there discussion of getting rid of felon disenfranchisement in 1971?
Dick Howard
Well, not not the way you would have today. They certainly, the revisers went through the Constitution, line by line, section by section, reconsidered, considered all of them to see if any change ought to be made. And I think it was felt, at the time the present, the drafting was done, in actually in the late 60s leading up to the 1971 Constitution, I don't think the weight of the felony disenfranchisement question fell as heavily on their shoulders as it would today. I would like to think they would take a different approach of it if they were at work today, as opposed to 50 years ago. It was pointed out a moment ago that we didn't have the War on Drugs. And it was in the Clinton years, in the 1990s, that so many more Persons of Color, fell under the weight of going to prison. At that time, there was just an enormous increase in prison population. I would point out that they Commission of Constitutional Revision, the one that was appointed by Governor Mills Godwin, was a bipartisan, it had Ted Dalton, a leading Republican of that period. It was biracial, it had Oliver Hill, who was the leading Civil Rights Attorney of that generation, he was the Thurgood Marshall of Virginia. So you had voices at the table who would have pointed out the need for change if it was thought necessary. And as I say, I think they didn't realize that they didn't predict at that time, how much it would drag on the African American population, the felony disenfranchisement provision would be. And they probably also were part of that sort of lingering notion that it goes back to the very beginning in Virginia, that you have certain people who have not earned their place at the citizenship table, that if they are convicted of a felony, that's pretty serious stuff, and that they are going to be removed from the ballot until at least they're they're back in the general population again. And I mentioned a moment ago that I thought, I think the revisers understood that the Governor's power to restore the voting rights of former felons was the safety valve, and that would suffice. As it turns out, it has not sufficed. It is true that you've had the reinstatement by number by governors like McAuliffe and Northam with the reinstatement of a number of former felons. But that power in the Governor is no better than whoever the incumbent is. You could have another governor who was much more strict in these matters and chose not to act. So that's why as a as a, in my judgment, that's why amending the article to provision that deals with disenfranchisement of felons needs to be needs to be undertaken.
Thomas Bowman
So there's a pretty significant era of Virginia history that we've glossed over, somewhat, enabled by that 1902 Constitution, where you see the progressives seize, in a way, seize the means of production behind political organizations, right? They didn't stop any of these corrupt practices, they adopted them, and they molded them, and what you get then is the Byrd Organization a few decades later, and then it exists into this era that you're talking about. In a lot of ways, the 1971 Constitution is a reaction to 40,50 years of Byrd Organization control on Virginia politics. Mr. Howard, can you explain how that Byrd Era played into some of the reforms that you and your compatriots made in that 1971 Constitution?
Dick Howard
Think about the 1960s and what a period of upheaval it was. It was a period where you had assassinations of Jack Kennedy, Robert F. Kennedy, Martin Luther King, you had riots and arson in some of the major cities. But it was also a period during which there were significant changes in federal constitutional and statutory law. You had the Supreme Court decisions, laying down the one person, one vote rule. The Supreme Court struck down the poll tax, you had the enactment of the Voting Rights Act of 1965, which covered Virginia, as well as other Southern states. So there was a massive shift in the way politics would be configured in Virginia. It was also the era, one has to realize, the era of post Brown versus Board of Education, so called Massive Resistance. Where in Virginia, for example, Prince Edward County closed it's school. So you had all of that as the backdrop. So the commissioners, among other things, set out to step forward, get out of that period of Massive Resistance and opposition to Brown into a different age. I think, among the things they did was make it clear that there's a constitutional bandaid on the General Assembly to provide education for every child of school age in Virginia, coupled with a mandate on all the localities, counties and cities, to put up their share of the of the school money. In other words, it will not be any more Prince Edward Counties in the future in Virginia. So the revisers were setting out, they hoped, to close the door on that year of Virginia history. They put into the Constitution, the first anti discrimination provision that there shall be no governmental discrimination on the basis of race or color, or might had sex. They put education into the Virginia Bill of Rights, they set up the provision for standards of quality in Virginia education. It was both an effort at one time to put an unhappy period of Virginia history behind us, and at the same time, to look prospectively to a more inclusive period. And that's why the felony disenfranchisement rule seems to not resonate well, because the Constitution, taken as a whole, was meant to sort of put the Era of Harry Byrd and his Machine Rule behind us, and look towards a future that one would hope would be more fair, more just, more inclusive.
Paul Levengood
Could I jump in here for a second? I think Dick makes a great point. And I think putting all these constitutions that we've discussed, context is important. And I Dick wrote a piece in the Richmond Times Dispatch, I think it was last year, about the Constitution. And he touched on a number of issues, including felon disenfranchisement. And I liked how you put it, Dick, in that piece, you talked about the various constitutions defining the political community, going back to George Mason, and the Virginia Declaration of Rights and on through. And so, I really think it's interesting to see, we've come to the point where we've, as a society said, you know, the political community includes all males, regardless of property holding, and then it becomes all males, regardless of race. And then it becomes women. And then, in more recent days, the political community is broadened to include LGBTQ Americans. And it seems to me it's almost of a continuum, that we then turn to, in some ways, one of the last groups that sort of lacks that kind of recognition and, and inclusion in the political community, and that is people who have been convicted of felonies. And I just think it's an interesting, it's just an interesting sort of point on this spectrum that we, that we talk about, as we as we enlarge that political community. And I think it's also important to remember that, in some ways, convicts, felons, have always been thought of as, as less than full participants in our society in Virginia, back to the, to the Pre Revolutionary days, to the colonial period when convicts are imported into Virginia and exploited terribly by those who utilize their labor in a quasi sort of slavery moment. And, you know, you go through the, through the early national period in post Civil War. I don't know if any of you have ever read the book, "John Henry is Steel Driving Man" by Scott Nelson, who used to teach at William and Mary. But he talks about finding the actual John Henry, who in 1866 is arrested and sent to the State Penitentiary, and then leased out as a convict. So that John Henry story of him fighting against or racing the machine, and digging a railroad tunnel, has basis in history, and it's convict labor. And so this notion that convicts were of, of a lower status in our society, and could be deprived of rights, has long historical roots. And it's finally kind of being addressed. But it's not just in the constitutions, but it's in our sort of society's view and treatment of those people that we get to this point. And I think that's just I think it's just an important thing to remember, that it's part of that evolving notion. And it's what's made this country sort of fascinating and great in its own ways, is that we make mistakes, but we we do what we can, or hopefully do what we can to try to right those mistakes as we move forward.
Thomas Bowman
You know, Paul, you bring up an interesting point. And if if I can pivot a little bit to political philosophy, there's an alternative reading of America's political history, where we never outlawed slavery, we just regulated it under the 13th Amendment, to people who are imprisoned. If you carry that throughline, where, you know, people who are in prison can be forced to work, they're not extended a minimum wage, they're not extended the ability to vote, what you have is a legacy slave system that basically got regulated, and now you have entire populations of people who count for the purposes of a census, but they don't count at all, for the purposes of being able to vote, right?
Dick Howard
It's interesting, by the way, that the European Convention on Human Rights, that governs human rights in the European scene, actually gives the vote to to those who are in prison. That would be very controversial. I think I'd be surprised if that were adopted in Virginia, I doubt that we would necessarily go that far. But it does raise the question of, are there portions of the community around us, who really are seen in constitutional terms, as not counting?
Thomas Bowman
You know, that would change the spirit of politics anywhere that got instituted, because one of the through lines we see is that, nobody ever scores political points for being soft on crime, right? This is throughout United States history, political history. One reason for that is because felons can't vote, or people incarcerated can't vote. I imagine if they could vote, they might have something to say about the people representing them, and the conditions imposed upon them. That would completely change the course of history, it would make it more Democratic. I would also point out to any Democratic members of the Legislature currently listening to our podcast, that it would create for them far more voters, because you would have a situation where one party, all of a sudden cares about the thoughts and opinions and the the political outcomes of a brand new electorate that has never before been cared for by Virginia's political class.
Paul Levengood
I think that's I think that's true. And I think the interesting thing, of course, is that, you know, you had, what was that, a year or two ago, a change to the law in in Florida, an amendment to the Florida Constitution, which was voted on popularly and passed overwhelmingly. And and I think it, I mean, it passed in a sort of a bipartisan manner that it was not a Black and White issue. It was it was large. And I think there was, I remember reading news coverage of it that there were some White Florida politicians who said, "You know, if we're seen as getting on board with this, this might be good for us politically, because it is enlarging the electorate with people who may think favorably upon us." So there is an interesting political calculation to be made as well.
Dick Howard
If the General Assembly decides to pass one or another form of the pending amendments that would re-enfranchise former felons, they have to be very careful about how it might be implemented by future legislatures. That Florida example is a is instructive, I think, because the people have, as Paul pointed out, the people of Florida overwhelmingly approved that amendment, something like almost two to one. And then the Florida Legislature stepped in and added the requirement that former felons have to pay off all of their court costs, any fees, fines, whatever, they have to be completely out of the water. Some of them can't do it. Most of them are poor and can't afford to do that. But moreover, Florida keeps its records county by county, and it's often impossible to find out what you actually owe, I mean, what your obligations are. So they basically, the legislature in Florida, deliberately, in my judgment, tried to cripple that amendment of the Florida Constitution. So I would tell some legislative friends in Richmond, the proponents of restoring the voting rights of felons, to be sure that they nail it down in a way that it can't be given with one hand, and take it back with the other.
Paul Levengood
That's a great point, Dick.
Thomas Bowman
Well, Mr. Howard, as our founding father, our living founding father, have any opinions on updates to this document?
Dick Howard
I am concerned that if you refer to me as a founding father, that somebody might want to bring a paternity suit against me. I have to be a little bit careful about accepting that, but your question is about other amendments to the Constitution?
Thomas Bowman
Yes. Do you, as somebody who played an outsized role in the current constitution, have any opinions on some changes you might like to see?
Dick Howard
Oh, that's interesting. You know, Thomas Jefferson famously said that each generation should take a close look at the Constitution and decide whether it's serving the needs of that particular place in time. He and he and James Madison were fond of the, in their correspondence, fond of the of the expression, "The earth belongs always to the living generation." So even though the commissioners who produced the 1971 Constitution that were mentioned, Oliver Hill, you have Lewis Powell, who later settled in Supreme Court, Hardy Dillard, who later sat on the World Court at The Hague, Colgate Darden, former UVA President and Governor of Virginia, I mean, really first class people, extraordinary insight, but they could not predict the future completely. Obviously, some things change. Among the changes that I would like to see, as I would hope that the commission that draws district lines, will work out, I personally would have gone for a commission that was entirely made up of citizens, the Legislature decided to have a half and half sort of commission. Well, I wish it Godspeed, may hope that works out. I would certainly amend the Constitution to deal with what we've been talking about on this program, namely felony, the former felons who ought to be restored to full citizenship and have had the right to vote. I would raise questions, at least ought to be the subject of public debate, about Dillon's Rule. That's the rule that says that courts will will construe the powers of localities strictly, they only have that which is explicitly given to them by the Legislature. Thomas Jefferson trusted local government and so do I. I would think about the one term rule for the Governor, we're the last state in the country that says the Governor can't run to succeed himself, I'm inclined to think that it would be helpful if the people could decide that they like the job that Governor is doing and give him a second term. I think that might be good for the budget and the administration of state policies and laws generally. So there are a number of ways in which I think one might walk through the Constitution. I've looked for changes. There's an Article 11, on the environment on conservation, which unfortunately, the courts have construed as being little more than an advice to the Legislature, I think maybe their teeth ought to be put into that provision so that it would actually have more of a bite in terms of construing, reviewing legislation and ordinances. But you know, by and large, yes, there are specific things I'd look at. But I'm pleasantly surprised that after the passage of time, I think the Constitution has been basically serviceable. It's certainly dealt with the problems of its time, I mentioned things like Massive Resistance and the like. I think it served pretty well as a basic law. It's probably a good idea not to tinker with it too much. I am a little concerned, for example, when social issues are put in the Constitution, the marriage amendment is a good case in point, I think it was that should have been debated as a matter of legislative and other public policy, it should not have been in the Constitution in the first place. And there's a sort of temptation, if you feel strongly about something, to turn it into a constitutional question. Maybe that's endemic in American society that Americans like to think if something's really important, it must be a matter of constitutional rights. So I think I'd look closely at selected provisions of the present Constitution. But I would not, for example, want to call a convention. I think an overhaul of the general overhaul is not necessary. And given the politics of the time, the partisanship, the way the country is so closely divided left and right. I think trying to overhaul the whole Constitution probably would be turned out to be a disaster.
Thomas Bowman
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