Introduction
Currently on the docket of the U.S. District Court for the Eastern District of Virginia is a case that seeks to restore the voting rights of more than 300,000 Virginians currently disenfranchised as a result of a prior felony conviction.[1] Despite having completed the terms of their sentences, these individuals are permanently barred from voting.[2] Two years ago, the ACLU of Virginia and Protect Democracy brought a lawsuit against the state of Virginia testing a new legal theory: that Virginia’s felon disenfranchisement laws violate the Readmission Act of 1870.[3]
Passed 150 years ago, the Act served as Virginia’s entry back into the Union following the Civil War, and required, among other things, that the state ratify a new constitution enshrining voting rights for all Virginians.[4] This historic law now serves as the basis for King v. O’Bannon, which argues that Virginia’s felon disenfranchisement policy should be narrowed to only disenfranchise those who committed “felonies at common law” as understood 150 years ago.[5] If the court rules in favor of the plaintiffs, it will not only be one of the largest and swiftest acts of restoration in recent years, but it could give credence to this legal argument, dramatically shifting the prevailing interpretation of felon disenfranchisement laws in Virginia and beyond.
Felony disenfranchisement
According to the Sentencing Project, an estimated 4 million Americans have been stripped of their voting rights due to a felony conviction.[6] This group is disproportionately composed of Black Americans by a rate more than triple that of non-Black Americans.[7] This is not an accidental outcome: felon disenfranchisement laws were vastly expanded and only became a significant barrier to the ballot box at the end of the Civil War and during the Reconstruction Period, when Black Americans were gaining the right to vote alongside their freedom.[8]
Over the next century and a half, felon disenfranchisement laws have stayed on the books and continued to dramatically shape Black Americans’ access to the ballot. Currently, twenty-five states bar individuals who are living in the community from voting, solely based on a prior felony conviction.[9] Included in that count is Virginia, which has the strictest felon disenfranchisement regime in the nation.[10] Its constitution permanently disenfranchises citizens with past felony convictions but grants the state’s governor the authority to restore voting rights.
In practice, this latter component has been unimpressive, particularly during Gov. Glenn Youngkin’s tenure.[12] His predecessor, Gov. Ralph Northam, sought to automatically restore voting rights to all Virginians who were not currently incarcerated.[13] But only about a year later, Gov. Youngkin quietly ended that practice and required that individuals convicted of a felony apply to the governor to have their rights restored on an individual, case-by-case basis.[14] Virginia is the only state with this stringent requirement. And in the years since this change was implemented, Gov. Youngkin has approved fewer and fewer applications and the process has become a black box. In fact, this process was challenged in federal court on the grounds that such an arbitrary process grants the governor “unfettered discretion, without objective rules or criteria” and thus violates the First Amendment rights of disenfranchised Virginians.[16]
All told, this disenfranchisement regime makes Virginia home to some of the highest levels of disenfranchisement; despite making up less than 2.7% of the voting-age population nationwide, Virginia accounts for about 10% of all people nationwide who are disenfranchised and roughly 16% of all Black citizens nationwide who are disenfranchised.[17]
King v. O’Bannon
In 2023, an ambitious case emerged in the Eastern District of Virginia arguing that the state’s felon disenfranchisement policy is in violation of the terms of the Readmission Act of 1870.[18] This is a novel legal argument seeking to limit felon disenfranchisement to only crimes that were considered “felonies at common law” as understood when the Readmission Act was passed 150 years ago, rather than the expansive list that currently serve as a basis for disenfranchisement in Virginia.[19]
I. The Plaintiffs
The case was brought on behalf of three Virginia citizens and Bridging the Gap in Virginia, a local non-profit.[20] Plaintiff Tati King has been unable to cast a ballot since 2018 due to a drug conviction, despite having completed his incarceration and parole. Plaintiff Melvin Wingate, a minister in Charlottesville, has been deprived of his fundamental right to vote for three decades because of an “uttering” conviction (a type of fraud). Like his co-plaintiff, Wingate completed his incarceration, parole, and paid all his required fines. Plaintiff Toni Johnson has been disenfranchised due to several drug-related convictions in 2021, for which she completed her incarceration in 2022. “I already served my sentence,” she said in a press release, “[b]eing barred from voting prevents me from having a voice in decisions that better my life, my family’s lives, and my community, and amounts to a second sentence.”[22]
In a recent filing, the plaintiffs asked the court for class certification, which if accepted, would include all current and future Virginians who have been disenfranchised in violation of the Readmission Act of 1870.[23] This would have significant ramifications: roughly 300,000 Virginians are disenfranchised and their right to vote could be reinstated by this single case.
II. Brief History
Following the end of the Civil War and facing the task of rebuilding a fractured nation, Congress required affirmative action from the formerly Confederate states in order to rejoin the Union and restore their congressional representation.[24] Specifically, these states were required to ratify the Fourteenth Amendment—which, among other things, established equal protection under the law for all persons—and submit new state constitutions to Congress for approval.[25] Congress additionally set forth certain “fundamental conditions” for these states in the Reconstruction Act of 1867.[26] Virginia was one of ten states[27] subject to this law, which provided that:
[T]he State of Virginia is admitted to representation in Congress as one of the States of the Union upon the following fundamental conditions: First, That the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the right to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.[[28]]
After agreeing to this fundamental condition, and fulfilling the requirements imposed by Congress, the Virginia Readmission Act was passed by Congress and signed by President Grant in 1870.[29] At that point, Virginia was thereafter prohibited from changing its constitution to disenfranchise anyone except for such crimes that are now felonies at common law.
Congress included this “fundamental condition” against the backdrop of states—including Virginia—passing a series of laws that were intentionally designed to disenfranchise Black Americans.[30] Congress understood the likely threat that Virginia might satisfy federal demands in the short term, but quickly turn around and enact policies to disenfranchise Black Virginians after-the-fact. Indeed, at the time, Senator Yates spoke to that very possibility: “[W]ithout this condition, the people of [each state] … [would] have the right at the first election to decide whether they will change this constitution” and he feared that they would because “[t]he rebel leaders have the power there; they own the lands; they have the money; they have the disposition to do it…”[31]
In the years that followed Virginia’s readmission to the Union, the Act worked: Black Virginians enjoyed political power. Between 1869 and 1889, nearly ninety Black men were elected to the General Assembly, and many more were elected to city councils, county boards of supervisors, and other local offices.[32]
This, however, was short lived. Despite the clear mandate contained in the Readmission Act of 1870, Virginia did change its constitution and vastly expanded the type of crimes that triggered disenfranchisement.[33] No longer were Virginians only disenfranchised for felonies at common law, they were now vulnerable to disenfranchisement for a wide array of crimes.
III. The Legal Argument
King v. O’Bannon challenges the felon disenfranchisement provision in Virginia’s constitution based on this historic law. It seeks to differentiate between “felonies” as a shifting and encompassing term and “felonies at common law” in 1870, a much narrower set of crimes. In fact, in 1870, only serious crimes were considered felonies.[34] However, between 1870 and today, Virginia flouted the Readmission Act and amended its constitution several times to vastly expand the scope of disenfranchising crimes.
In 1902, Virginia again broadened the list of crimes triggering disenfranchisement. The relevant provision was amended to strip voting rights from anyone convicted of “treason or of any felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery, or perjury.”[39]
Virginia went on to amend this provision two more times. The change adopted in 1971 is still in effect today and states that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”[40] The key language missing in this law is “felonies at common law” (emphasis added). By eliminating those important three words, Virginia disenfranchises its citizens for an expansive list of codified felonies—over 1,100 offenses—and not for the narrow set of felonies “at common law” in 1870. Indeed, the defendants in this case admit to enforcing the law for “all felonies,” without making “any distinction between ‘common law’ felonies or non- ‘common law’ felonies.”[41]
IV. Implications
This is an ambitious argument. For one, if the plaintiffs prevail, it would constitute one of the swiftest voting rights restoration efforts in recent years, with over 300,000 Virginians regaining the right to vote.
Critically, it would also tie Virginia to a narrow understanding of the Readmission Act of 1870 and strip them of their authority to change their interpretation of that law. Specifically, it would revert Virginia’s disenfranchisement law to only cover “felonies at common law” as understood in 1870—preventing them from accounting for changing circumstances. Take, for example, two of the plaintiffs who are disenfranchised due to drug convictions, a crime that did not exist in 1870. The question at the core of this case is whether Virginia should be tied to an originalist understanding that doesn’t account for modern crimes (including drug offenses) or if a more flexible approach is appropriate.
It seems unlikely that the correct answer is as rigid as the one that the plaintiffs seek, nor as flexible and broad as the policy the defendants have adopted. At the very least, an appropriate measure could rest on the severity of the crime in question. In 1870, felonies at common law were limited to serious and morally repugnant offenses—including murder, arson, and robbery.[42] I think the best answer reflects that original understanding: that the important and foundational right to vote should only be revoked for serious offenses. The alternative—disenfranchisement for minor crimes—is an egregious mismatch of social principles. And while I think it is worth giving Virginia the room to adapt its disenfranchisement law to reflect modern circumstances, that license should not come without limits. There is a plain incongruency that exists between the motivation behind the Readmission Act of 1870—namely, to ensure Black Americans could gain the right to vote—and the practical effect of Virginia’s current disenfranchisement regime—which disproportionately deprives Black Virginians of the right to vote.[43]
Moreover, Virginia was not the only state subject to these terms.[44] Alabama, Mississippi, and Florida were among the states subject to Readmission Acts 150 years ago. They also all currently have strict policies that result in permanent disenfranchisement for at least some individuals with criminal convictions, unless the government approves restoration.[45] If the legal argument in King v. O’Bannon is granted credibility by the court, it could be applied elsewhere in the country—including these three states—potentially restoring voting rights for a vast number of people.
Lastly, and perhaps the most interesting, King v. O’Bannon seems to be pulling at a loose thread in the landmark felon disenfranchisement case Richardson v. Ramirez, 418 U.S. 24 (1974). This case turned on language in Section 2 of the Fourteenth Amendment, which holds that voting rights cannot be “denied to any of the male inhabitants of [each] State … or in any way abridged, except for participation in rebellion, or other crime […]” (emphasis added).[46] The majority understood this language to provide an “affirmative sanction” for felon disenfranchisement.[47]
In his dissenting opinion, however, Justice Marshall asked the obvious question: what does “other crime” mean?[48] The majority admits that the legislative history behind these words is “scant indeed” which supports a “plain reading” of the term.[49] Justice Marshall was not impressed by this brief analysis, however, and points out that the term was not subject to rigorous debate by the lawmakers at the time. In a footnote, he also highlights the absurd results “other crime” can mean if understood broadly: “[e]ven a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since §2 does not differentiate between felonies and misdemeanors.”[50]
Richardson v. Ramirez is commonly critiqued for this reason – and rightfully so.[51] The Court was too cursory in its analysis of “other crime” and the resulting effect is the same one that the Fourteenth Amendment was trying to solve. The case reveals the dangers of basing disenfranchisement laws on an unclear, variable term such as “other crime.” Instead, the term should have been anchored in a static interpretation. In other words, when the Fourteenth Amendment was drafted in the 1860s, what crimes served as a basis for disenfranchisement? Those crimes were understood to be felonies worthy of disenfranchisement – more minor crimes, however, were not.[52]
King v. O’Bannon articulates a similar point: the disenfranchisement provision in the Virginia Readmission Act should be anchored in the static interpretation of “felonies at common law” when it was written. To be sure, the two cases deal with distinct texts: King addresses Virginia’s Readmission Act which hinges on the words “felonies at common law” whereas Richardson discusses the Fourteenth Amendment and the words “and other crime.” They are not synonymous cases. Yet, the same fundamental contention undergirds both. How is it fair to strip someone of their democratic right to vote if they commit a crime but then constantly change what constitutes crime?
Conclusion
The 300,000 Virginians currently disenfranchised based solely on a prior felony conviction have served their time, completed all the terms of their sentence, and have returned to their families and communities; yet they continue to be stripped of their constitutional right to vote because of Virginia’s strict re-enfranchisement scheme. Many of these individuals were convicted of non-violent crimes that historically would not have triggered disenfranchisement. That was certainly the case when Virginia agreed to the fundamental conditions contained in the Virginia Readmission Act of 1870. But the state quickly abandoned this rule and vastly expanded what types of crimes would trigger disenfranchisement. As argued in King v. O’Bannon, this is a gross violation of the text of the Readmission Act, and the case seeks to tie Virginia to a textualist and historic understanding of “felonies.” The consequences of doing so would be an enormous and profound development in the interpretation of felon disenfranchisement laws. Most importantly, though, it would mean that 300,000 Virginians who are currently barred from voting could regain their democratic voice.
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[1] Compl. at 2, King v. Youngkin, No. 3:23-cv-00408 (E.D. Va. filed June 26, 2023), sub nom. King v. O’Bannon, No. 3:23-cv-00408-JAG.
[2] Va. Code Ann.§§ 24.2-653, 24.2-1004 (West 2015).
[3] Compl., supra note 1, at 2.
[4] An Act to Admit the State of Virginia to Representation in the Congress of the United States, 16 stat. 62 (Jan. 26, 1870).
[5] Compl., supra note 1, at 3; see also Brief in Support of Motion for Summary Judgement and for Permanent Injunction at 13, King v. O’Bannon, No. 3:23-cv-00408-JAG (E.D. Va. filed July 18, 2025) [hereinafter “Brief”].
[6] Christopher Uggen et al., Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction 2, Sentencing Project (2024).
[7] Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. Id. at 2.
[8] See, e.g., Erin Kelley, Racism & Felony Disenfranchisement: An Intertwined History 1, Brennan Ctr. for Just. (2017). States also relied on poll taxes, literacy tests, “grandfather” clauses, and—not least—outright violence and intimidation tactics to dilute Black political power. Id. at 1; see also Farrell Evans, How Jim Crow-Era Laws Suppressed the African American Vote for Generations, History (May 28, 2025), https://www.history.com/articles/jim-crow-laws-black-vote.
[9] See Brennan Ctr. for Just., Can People Convicted of a Felony Vote? (May 13, 2025), https://www.brennancenter.org/our-work/research-reports/can-people-convicted-felony-vote.
[10] Id.
[11] Va. Const. art. II, § 1. This practice is also in effect in Iowa and Kentucky. See Brennan Ctr. for Just., supra note 10.
[12] For a brief overview of felon reenfranchisement trends in Virginia, see Brennan Ctr. for Just., Voting Rights Restoration Efforts in Virginia (April 3, 2023), https://tinyurl.com/brennan-ctr-voting-restoration.
[13] Press Release, Former Virginia Governor Ralph S. Northam, Governor Northam Restores Civil Rights to Over 69,000 Virginians, Reforms Restoration of Rights Process (March 16, 2021).
[14] Gregory S. Schneider, Youngkin requires people convicted of felonies to apply for voting rights, Wash. Post (March 23, 2023), https://tinyurl.com/wash-post-va-felon-rights.
[15] Dean Mirshahi, Voting rights restorations drop for 3rd year in a row under Youngkin, VPM News (Feb. 27, 2025), https://tinyurl.com/vpm-youngkin-mcdonnell.
[16] Compl. at 2, Hawkins v. Youngkin, No. 3:23-cv-00232 (E.D. Va. filed Apr. 6, 2023).
[17] See Brief, supra note 5, at 11.
[18] Complaint at 2, King v. Youngkin, No. 3:23-cv-00408, sub nom. King v. O’Bannon, No. 3:23-cv-00408-JAG.
[19] Compl., supra note 1, at 3. Arguments against the constitutionality of felon disenfranchisement laws have been lost on First, Eighth, Fourteenth, and Twenty-Fourth Amendment grounds. See, e.g., Lostutter v. Beshear, No. CV 6:18-277-KKC (E.D. Ky. July 22, 2022); Green v. Bd. of Elections of N.Y., 380 F.2d 445 (2d Cir. 1967), Hopkins v. Watson, 108 F.4th 371 (5th Cir. 2024), cert. denied, 145 S. Ct. 1138 (2025); Richardson v. Ramirez, 418 U.S. 24 (1974); Hunter v. Underwood, 471 U.S. 222 (1985); Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010); Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010); Jones v. DeSantis, 975 F.3d 1016 (11th Cir. 2020). Felon disenfranchisement laws have also been challenged, unsuccessfully, based on Section 2 of the Voting Rights Act of 1965. See Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006).
[20] Compl., supra note 1, at 1; see also Protect Democracy, Virginia Readmission Act Litigation (June 26, 2023), https://protectdemocracy.org/work/virginia-readmission-act-litigation/.
[21] Id.
[22] Id.; see also Whittney Evans, Civil rights groups push to end Virginia’s denial of voting rights to felons, VPM News (July 23, 2025), https://tinyurl.com/vpm-va-felon-voting-aclu.
[23] Plaintiffs’ Motion for Class Certification at 1, King v. O’Bannon, No. 3:23-cv-00408-JAG (E.D. Va. filed July 18, 2025).
[24] Brief, supra note 5, at 3; see also The U.S. Senate, The Civil War: The Senate’s Story, https://www.senate.gov/artandhistory/history/common/civil_war/VictoryTragedyReconstruction.htm (last accessed Oct. 14, 2025) (hereinafter “Brief”).
[25] The U.S. Senate, Landmark Legislation: The Fourteenth Amendment https://tinyurl.com/senate-gov-origins-14th-am, (last accessed Oct. 14, 2025).
[26] First Reconstr. Act of Mar. 2, 1867, c. 153, 14 Stat. 428, 428.
[27] The “rebel” states subject to the Reconstruction Act of 1867 were Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas. See The U.S. Senate, The Civil War: The Senate’s Story (last accessed Oct. 14, 2025).
[28] An Act to Admit the State of Virginia to Representation in the Congress of the United States, 16 stat. 62 (Jan. 26, 1870).
[29] Encyclopedia Virginia, An Act to admit the State of Virginia to Representation in the Congress of the United States (Jan. 26, 1870), https://tinyurl.com/encyclopedia-va-primary-docs.
[30] For a general history, see Byne Francis Goodman, The Black Codes, 1865–1867 (1912).
[31] Brief, supra note 5, at 5.
[32] Id. at 6.
[33] In fact, Virginia amended the relevant provision of its constitution four times (in 1876, 1902, 1928, and 1971). Id.
[34] According to one source, felonies at common law included murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny. See Francis Wharton, A treatise on the criminal law of the United States 2 (5th ed. 1861); Another source posits that felonies at common law in 1870 included arson, burglary, escape and rescue from a prison or jail; homicide, including murder and manslaughter; larceny; mayhem; rape; robbery; sodomy; and suicide. See Brief, supra note 5, at 15.
[35] See Kelley, Racism & Felony Disenfranchisement (2017); for a historical overview, see Helen Gibson, Felons and the Right to Vote in Virginia: A Historical Overview, 91 VA. NEWSL. (Weldon Cooper Ctr. for Pub. Serv., Charlottesville, Va.), Jan. 2015.
[36] See Cornell Law School Legal Information Institute, petty larceny (last accessed Oct. 14, 2025).
[37] Brief, supra note 5, at 6.
[38] Id. at 7.
[39] Id.
[40] Va. Const. art. II, § 1.
[41] Brief, supra note 5, at 16.
[42] See, e.g., Wharton, supra note 37, at 2.
[43] Brief, supra note 5, at 11.
[44] North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas also agreed to this fundamental condition (with only slight variations in language). See Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
[45] Ala. Const. art. VIII, § 177; Miss. Const. art. XII, § 241; Fla. Const. art. VI, § 4. See also Brennan, supra note 9.
[46] U.S. Const. amend. XIV, § 2.
[47] Richardson, 418 U.S. at 54.
[48] Id. at 72-73.
[49] Id. at 43-45.
[50] Id. at 76.
[51] See, e.g., Abigail M. Hinchcliff, Note, The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement, 121 Yale L.J. 194 (2011); Richard W. Bourne, Richardson v. Ramirez: A Motion To Reconsider, 42 Val. U. L. Rev. 1 (2007); David J. Zeitlin, Note, Revisiting Richardson v. Ramirez: The Constitutional Bounds of Ex-Felon Disenfranchisement, 70 Ala. L. Rev. 259 (2018).
[52] See, e.g., Wharton, supra note 37, at 2.
