Former Prisoners’ Challenge to Virginia Constitution’s Felony Disenfranchisement Clause Allowed to Proceed
On December 5, 2024, the U.S. Court of Appeals for the Fourth Circuit affirmed an order of the district court permitting Plaintiffs Tati Abu King and Toni Heath Johnson (collectively “Plaintiffs”) to proceed under the doctrine expounded in the U.S. Supreme Court case Ex parte Young, 209 U.S. 123 (1908), on their claim that enforcement of the Virginia Constitution’s felony-disenfranchisement provision violates the Plaintiffs’ right to vote under the Virginia Readmission Act of 1870.
King was convicted of felony drug possession in 2018, and Johnson was convicted in 2021 of several felonies, including drug possession and drug distribution. These convictions triggered the Virginia Constitution’s felony-disenfranchisement provision that states “[n]o 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.”
Because the Governor has not restored their civil rights, if Plaintiffs did cast a vote, they would be subject to criminal prosecution for illegal voting under Va. Code section 24.2-1004(B)(iii), which makes it a Class 6 felony to vote despite “knowing that [one] is not qualified to vote.” Additionally, if Plaintiffs attempted to register to vote, the Defendants would be required to deny their registration.
Plaintiffs alleged in their complaint that they would register to vote and would vote in future elections if permitted to do so. The Plaintiffs further alleged that their inability to register to vote violated the Virginia Readmission Act of 1870 (“Act”), which is a federal statute that allowed the Commonwealth to regain its Congressional representation after the Civil War.
The Act begins by noting that “the people of Virginia have framed and adopted” the Virginia Constitution of 1869. The Act then imposes several limitations and restrictions on Virginia, including one that reads:
“[T]he Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled 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.”
The Plaintiffs sued Virginia Governor Glen Youngkin (R); Kelly Gee, Secretary of the Commonwealth; John O’Bannon, Chairman of the State Board of Elections, along with seven other election officials (collectively “Defendants”) in their official capacities, seeking, inter alia, an injunction barring the Defendants “from enforcing” the felony-disenfranchisement rule against people “convicted of crimes that were not felonies at common law when the Virginia Readmission Act was enacted.”
The Defendants moved to dismiss the complaint, asserting that sovereign immunity barred the suit. The district court declined to dismiss the claim and the Defendants appealed.
The Court observed “[t]he Eleventh Amendment and the broader principles of federalism it reflects generally prevent private parties from suing a State without its consent.” Furthermore, “[s]uits against state officials in their official capacity” are “treated as suits against the State” and are prohibited by sovereign immunity to the extent such suits seek monetary relief. “But there is also a well-settled corollary—associated with Ex parte Young—that allows suits for declaratory or injunctive relief against state officers in their official capacities.”
The Court continued, “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”
The Fourth Circuit concluded that the Plaintiffs’ complaint satisfied the U.S. Supreme Court’s “straightforward inquiry” in that it alleged “that the defendants are violating federal law by preventing King and Johnson from registering to vote and seeks an injunction to prevent the defendants from continuing to do so.” The Court then rejected the Defendants’ arguments of immunity from suit with the exception to the arguments of Defendants Youngkin and Gee.
The Court concluded that “[f]or a state officer to be sued under the Ex parte Young doctrine, ‘[g]eneral authority to enforce the laws of the state is not sufficient.’…The ongoing violation King and Johnson allege is the refusal to permit them to register to vote. But under Virginia law, the governor and the secretary do not administer the rules respecting voter eligibility—the other defendants do.”
Accordingly, the Court dismissed Youngkin and Gee from the suit but otherwise affirmed the district court’s order permitting the Plaintiffs to proceed on this claim. And in March 2025, the state of Virginia asked the U.S. Supreme Court to take up the case, which it declined on June 23 of this year, leaving the Fourth Circuit’s decision in place. See: King v. Youngkin 122 F.4th 539 (4th Cir. 2024).
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Related legal case
King v. Youngkin
| Year | 2024 |
|---|---|
| Cite | 122 F.4th 539 (4th Cir. 2024) |
| Level | Court of Appeals |