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Virginia’s governor wants to give 200,000 ex-prisoners the right to vote. Republicans don’t.

The debate is just one step toward dismantling what critics call “the new Jim Crow.”

Virginia Gov. Terry McAuliffe speaks at the Democratic convention.
Virginia Gov. Terry McAuliffe speaks at the Democratic convention.
Alex Wong/Getty Images

Roughly 110 years ago, a Virginia state legislator defended a 1902 package of voting restrictions, arguing it was necessary to “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Parts of the package — specifically, poll taxes and literacy tests — were later struck down. But the legislation also expanded on a section of the Virginia Constitution that remains in place today: the total disenfranchisement of people with felony records.

Virginia Gov. Terry McAuliffe (D) is trying to change that. In a move that briefly reached the courts, McAuliffe is trying to restore voting rights to 200,000 felons, who are permanently barred from voting under state law. And he tried to do it without the legislature’s approval, by using his pardon and clemency powers to sign an executive order that gave all felons who had served their prison, parole, and probation time the ability to register to vote.

The move, like most things in America, has led to a tense political and legal battle between Democrats and Republicans. But while the particulars of Virginia’s case could have an important impact — Virginia is, typically, an important swing state in elections — this is about an issue much bigger than just one state.

In the US, it is actually the norm that people with criminal records lose their right to vote, at least while they are still in prison, on parole, or on probation. This can have a tremendous impact on elections, particularly since black Americans — who are more likely to vote Democrat — are disproportionately likely to be incarcerated. What’s more, this is only one example of what are known as the “collateral consequences” of mass incarceration, which often punishes ex-prisoners for life even after they serve their sentences.

Virginia’s governor and Republicans are fighting over the voting rights of felons

Most states ban people from voting while they’re in prison, and some extend the ban to parole and probation. But Virginia permanently bans felons from voting even after they complete their prison, parole, and probation sentences.

McAuliffe’s order tried to change that. In his defense, the governor cited the outright racist origins of the law and its disproportionate impact on black voters — about 45 percent of those affected by his planned order are African American, according to his office.

But after McAuliffe announced an executive order in April that sought to immediately restore voting rights for 200,000 felons, Republicans quickly protested, taking the issue to court.

Republicans criticized McAuliffe for including violent offenders on top of nonviolent former inmates — including, accidentally, 132 sex offenders still in custody and a few convicted murderers still on probation in other states. They also called the executive order politically motivated, arguing that the felons unable to vote are more likely to vote Democrat in the upcoming election.

The Virginia Supreme Court sided with Republicans on a technical basis, arguing that McAuliffe’s order was too sweeping. The governor has authority to issue pardons and clemency to ex–prison inmates on a case by case basis, the court said, but he doesn’t have the power to simply restore everyone’s voting rights without looking at each of their individual cases.

Now McAuliffe plans to get around that, according to the Washington Post, by using an autopen to, this week, sign individual orders restoring 13,000 people’s right to vote, and, eventually, the rest of the 200,000.

Most Virginians support the governor’s order, with a Washington Post poll finding that 61 percent of Virginia adults back the move. The poll found a majority of Democrats and independents on the governor’s side, while six in 10 Republicans oppose his order.

But while eyes are currently on Virginia, this is an issue that extends far beyond the Commonwealth.

Most states block people with criminal records from voting in some way

Only Maine and Vermont allow everyone to vote regardless of criminal record. Most states don’t let felons who are in prison, on parole, or on probation vote. And 10 states, including Virginia, stopped at least some felons from voting after they completed their sentences, according to the American Civil Liberties Union.

As a result, the Sentencing Project estimated in 2012 that more than 5.8 million Americans weren't legally allowed to vote due to their criminal records — more than the population of either Colorado or South Carolina. Several states prohibited 6 percent to 11 percent of their electorate from voting.

Since black Americans are much more likely to go to prison, this had a disproportionate impact on the African-American electorate: While the overall disenfranchisement rate didn't break 11 percent for any state in 2012, the black disenfranchisement rate topped 20 percent in Florida, Kentucky, and, notably, Virginia — three of the states with the most restrictive voting laws for felons.

This kind of disparate disenfranchisement is what McAuliffe was trying to address. But if he really wants to address all of the restrictions felons face after they complete their prison, parole, and probation sentences, he’ll need to go much further.

Ex-prisoners face other “collateral consequences” — beyond losing their voting rights

Restrictions on voting are an example of the “collateral consequences” that people can face after they complete their sentences. But they’re just one example.

Another one: It’s legal in most states for employers to ask in job applications about someone’s criminal record, and not hire someone for a prior crime — even something as minor as a marijuana possession offense. But this can make it much more difficult for inmates to reintegrate into society: If they can’t get a job, they’re much more likely to turn to criminal activities to make ends meet. So reformers started “Ban the Box,” which seeks to stop employers from asking about criminal records in job applications — although they can do criminal background checks later on in the hiring process.

Collateral consequences apply to all sorts of other issues, as well. People who have served out their felony convictions often can’t apply for public housing or Pell Grants. They can’t receive welfare benefits. They frequently can’t serve on juries.

Supporters of collateral consequences say ex-criminals are simply suffering the consequences of their actions and shouldn’t be able to use taxpayer resources like welfare, public housing, or Pell Grants. But these restrictions can make it more difficult for an inmate to stay afloat and find a job, and they signal that society will never accept him — making him much more likely to turn back to a life of crime.

In The New Jim Crow, a groundbreaking book about racial disparities in the criminal justice system, Michelle Alexander pointed to these collateral consequences — and how they disproportionately hurt people of color — as an example of a new form of racist social control:

Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service — are suddenly legal.

Virginia’s current voting restrictions exemplify this: Expanded as part of a package of Jim Crow laws with explicitly racist motives, the restrictions remain the law today.

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