Virginia Voters to Decide Voting Rights Amendment in November

Editor’s Note: Virginia voters will consider three proposed amendments to the Virginia Constitution on the Nov. 3 ballot. This is the third in a series examining each proposed amendment. We are providing information on what each proposal would change, along with arguments from supporters and opponents, to help voters better understand the questions before casting their ballots.

Virginia voters will decide in November whether to establish a fundamental right to vote in the state Constitution and automatically restore voting and other political rights to people convicted of felonies once they are released from incarceration.

Proposed Constitutional Amendment Question 3 would also change the standard used to determine when a person lacks the mental capacity to vote.

The ballot question asks whether Virginia’s Constitution should be amended to provide a fundamental right to vote; prevent people convicted of felonies from voting while incarcerated but automatically restore their rights upon release; and replace the existing restriction involving people found mentally incompetent with a more specific standard applying to people found by a court to lack the capacity to understand the act of voting.

The proposal represents a significant change from Virginia’s current system, particularly for people convicted of felonies.

What Virginia’s Constitution Says Now

Under Virginia’s current Constitution, a person convicted of a felony loses the right to vote unless his or her civil rights are restored by the governor or another appropriate authority.

Release from prison does not, by itself, restore a person’s constitutional voting rights.

The Constitution also currently provides that a person adjudicated mentally incompetent is not qualified to vote until competency has been reestablished.

Question 3 would change both provisions while also explicitly declaring voting a fundamental constitutional right for qualified Virginia voters.

What Question 3 Would Change

Under the proposed amendment, every person meeting Virginia’s voter qualifications would have a fundamental right to vote, and that right could not be abridged by law except for the circumstances specified in the amendment.

A person incarcerated for a felony would remain unable to vote while incarcerated.

The major change would occur upon release.

Once released from incarceration for that felony conviction, the person would automatically regain all political rights, including the right to vote. No additional application to the governor would be required.

The amendment does not require the individual to complete probation or parole first. Nor does its restoration provision condition the return of political rights on payment of fines or victim restitution.

Those distinctions have become a central point in the debate over Question 3.

Restoration Would Include More Than Voting

Although much of the debate has focused on voting, the amendment expressly states that a person released from incarceration would be invested with “all political rights, including the right to vote.”

That has consequences beyond casting a ballot.

According to the state’s official explanation of Question 3, restoration of the right to vote also carries rights connected to serving as a juror, being elected to public office, and serving as a notary public.

Question 3 is therefore broader than simply allowing someone to register to vote after leaving prison.

What About Mental Capacity?

Question 3 also would change another portion of Virginia’s voter-qualification language.

The Constitution currently disqualifies a person who has been adjudicated mentally incompetent until competency has been reestablished.

The proposed amendment would replace that broader terminology with a more specific standard.

A person could be denied the right to vote if a court of competent jurisdiction determines that the person lacks the capacity to understand the act of voting. The person would remain unable to vote during that period of incapacity.

Supporters argue that the change better focuses the restriction on whether an individual can understand voting rather than whether the person has some other form of incapacity.

What Supporters Say

Supporters argue that people who have served their period of incarceration should not have to seek permission from a governor to participate in elections.

They contend that restoration should occur automatically and uniformly rather than depend upon decisions made through the executive restoration process.

Supporters also point to the history of voter disenfranchisement in Virginia.

Virginia’s 1901-02 Constitutional Convention produced a Constitution that sharply restricted voting. Historical accounts document that disenfranchising Black voters was a major objective of the convention, although the resulting restrictions also removed many poor white Virginians from the electorate.

Supporters of Question 3 connect today’s debate over felony disenfranchisement to that broader history and argue that automatic restoration would remove a longstanding barrier to civic participation.

They also argue that voting can encourage people returning to their communities to participate in civic life after incarceration.

For supporters, the principle is that incarceration should mark the period during which voting rights are suspended and that those rights should return when incarceration ends.

What Opponents Say

Opponents have focused largely on when political rights should be restored rather than arguing that restoration should never occur.

Some Republican legislators who opposed the amendment during the General Assembly session said they supported reforming Virginia’s restoration system but believed Question 3 restores rights too early.

They argue that release from incarceration does not necessarily mean a person has completed his or her criminal sentence.

A person may remain on probation or parole after leaving prison. There also may be outstanding court costs, fines or victim restitution.

Opponents argue that those obligations should be completed before political rights are automatically restored.

Another concern involves the type of felony committed.

Some opponents favored distinguishing between violent and nonviolent felony convictions, rather than applying the same constitutional restoration rule to everyone released from incarceration.

Under Question 3, the restoration provision does not make that distinction. A person released from incarceration for a felony would regain political rights regardless of whether the underlying felony was classified as violent or nonviolent.

That is an important policy choice contained in the amendment.

What the Amendment Does Not Require

Some distinctions are particularly important for voters evaluating Question 3.

The amendment does not allow a person incarcerated for a felony to vote while serving that sentence.

It does not require completion of probation or parole before rights are restored.

It does not require payment of fines or victim restitution before restoration.

It does not distinguish between violent and nonviolent felony convictions for purposes of automatic restoration.

And it does not eliminate all restrictions related to mental capacity. Instead, it replaces the existing standard with the more specific requirement that a court find that a person lacks the capacity to understand the act of voting.

These are provisions contained in—or consequences directly associated with—the proposed constitutional language, rather than predictions about what the amendment might eventually mean.

The Historical Debate

Supporters frequently describe Virginia’s felony disenfranchisement system as a legacy of Jim Crow.

The history requires some context.

Virginia had voting restrictions before 1902, but the Constitutional Convention of 1901-02 was a major effort to reduce Black political participation.

The Constitution produced by that convention imposed mechanisms, including poll taxes and registration requirements, that dramatically reduced Virginia’s electorate. Historical accounts show that delegates openly discussed ways to disenfranchise Black voters while avoiding an explicit violation of the U.S. Constitution’s prohibition against racial discrimination in voting.

The restrictions also disenfranchised substantial numbers of white voters.

Virginia adopted a new Constitution in 1971, replacing the 1902 Constitution, but the current Constitution continues to disqualify people convicted of felonies unless their civil rights are restored.

Supporters view Question 3 as another step away from that history.

Opponents argue that the history of racial discrimination does not resolve the separate policy question of whether people convicted of felonies should regain all political rights immediately upon release or only after satisfying additional requirements.

A Question About Who Controls Restoration

Question 3 would also make a structural change in who determines restoration.

Under the existing constitutional framework, restoration of rights following a felony conviction depends upon action by the governor or other appropriate authority.

Under Question 3, the constitutional rule itself would control.

Once the qualifying period of incarceration ended, restoration would occur automatically without further action required from the individual.

That would remove the question of whether to restore political rights in an individual case from the governor’s discretionary process for people who have been released from incarceration.

Future governors would therefore not decide on a case-by-case basis whether those individuals should regain the political rights covered by the amendment.

What a Yes or No Vote Means

A YES vote supports establishing a fundamental right to vote for qualified Virginia voters and changing the Constitution so that people convicted of felonies cannot vote while incarcerated for those convictions but automatically regain all political rights upon release. It also supports changing the mental-capacity provision so that voting rights can be denied when a court determines that a person lacks the capacity to understand the act of voting.

A NO vote rejects those constitutional changes.

A NO vote would leave the existing constitutional framework in place, including the provision disqualifying people convicted of felonies from voting unless their civil rights are restored by the governor or other appropriate authority and the existing provision concerning persons adjudicated mentally incompetent.

For voters, one of the central questions is therefore not simply whether people convicted of felonies should ever regain voting rights.

It is whether the Virginia Constitution should guarantee automatic restoration of political rights upon release from incarceration — or continue a system in which a felony conviction disqualifies a person unless those rights are subsequently restored through existing constitutional authority.

Question 3 also asks voters to make a broader constitutional decision: whether the right of qualified Virginians to vote should, for the first time, be expressly identified in Virginia’s Constitution as a fundamental right that cannot be abridged by law except for the circumstances specified in the amendment.