by Chuck Sharman

On January 22, 2026, the U.S. District Court for the Eastern District of Virginia found the state’s felony disenfranchisement law ran afoul of the power granted by Congress when the state was readmitted to the Union after the Civil War. Though the ruling does not extend its protections to every former state prisoner, it is expected to benefit a substantial number of some 300,000 former prisoners who had been disenfranchised.

The decision centered on the Virginia Readmission Act. As the bill provided that no citizen could be denied the right to vote except for “felonies at common law,” the district court struck all disenfranchisement provisions in the current state constitution except for those 10 crimes—plus suicide—that qualified when it was passed in 1870.

In the 1860 presidential contest, only 2,000 of the 167,000 votes cast by Virginians went to its winner, Abraham Lincoln (R). Because the GOP was opposed to letting slavery expand to new western territories, seven states in the South saw his victory as the beginning of the end for their legal right to own slaves, and they seceded from the U.S. in early 1861. When Lincoln called on the remaining states to send troops to put down the rebellion, Virginia and three more states instead joined the secessionists in July 1861.

The various articles of secession left no doubt that these states were motivated explicitly by racism. The Texas declaration of succession, for example, said that Southern state governments “were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”

Consequently, the U.S. was concerned after the war that readmitted Southern states would continue to practice slavery under another name—enacting laws that criminalized innocuous behavior and then selectively enforcing those laws to arrest and incarcerate Black citizens, whose labor could continue to be coerced without pay. This is, of course, exactly what ended up happening, once federal troops withdrew from the conquered Southern states.

But first, in its failed attempt to stop it, Congress wrote into the laws readmitting those states provisions like the one in the Virginia Readmission Act of 1870, forbidding it from depriving anyone of the right to vote, “except as a punishment for such crimes as are now felonies at common law.” National lawmakers heard testimony from a Virginia sheriff in 1866, the district court recalled, that “state legislators were ‘passing vagrant laws on purpose to oppress’ Black people.” So Virginia was not readmitted to the Union before its constitution was amended in 1869 to disenfranchise only: “(1)‘Idiots and lunatics’; (2) ‘Persons convicted of bribery in any election, embezzlement of public funds, treason or felony’; (3) persons who participated in dueling; and (4) certain officials in the former Confederacy.”

After rejoining the U.S. the following year, however, Virginia went on to amend its constitution in 1876 to establish a poll tax, also adding those convicted of petit larceny to the list of disenfranchised voters. The 1902 constitution expanded the class again to include those convicted not only of treason but also of “any felony, bribery, petit larceny, obtaining money or property under false pretences, embezzlement, forgery, or perjury.” Sen. Carter Glass (D), a member of the constitutional convention, proudly stated that its goal was “the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.” The 1928 constitution “largely retained the 1902 disenfranchisement provision,” as the district court also recalled.

New Constitution,
Same Old Problem

Finally, in its 1971 constitution, Virginia bared anyone convicted of any felony from voting “unless his civil rights have been restored by the Governor or other appropriate authority.” That’s how former state prisoners Tati Abu King and Toni Heath Johnson found themselves unable to vote after their release from prison. In June 2023, the Plaintiffs filed suit under 42 U.S.C. § 1983, accusing the state and then-Gov. Glenn Youngkin (R) of violating the Readmission Act by disenfranchising them for crimes that were not “felonies at common law” in 1870.

Defendants moved to dismiss the complaint, but the district court let Plaintiffs’ claims for equitable relief survive. Defendants turned to the U.S. Court of Appeals for the Fourth Circuit, but it largely affirmed the decision on December 5, 2024, dismissing only claims against Youngkin and then-Secretary of Virginia Kelly T. Gee; neither had authority to enforce the ban on Plaintiffs’ voting, the Fourth Circuit said. See: King v. Youngkin, 122 F.4th 539 (4th Cir. 2024).

That left the suit to proceed against state Board of Elections Chair John N. O’Bannon (R). Plaintiffs moved for summary judgment and to certify a class of eligible former state prisoners. Defendants filed a cross-motion for summary judgment. The district court denied Defendants’ motion and granted Plaintiffs summary judgment, circumscribing the state constitution’s ban on voting to include only those convicted of crimes that were “common law felonies” in 1870: “(1) arson; (2) burglary; (3) escape and rescue from a prison or jail; (4) larceny; (5) manslaughter; (6) mayhem; (7) murder; (8) rape; (9) robbery; (10) sodomy; and (11) suicide.”

“The Virginia Readmission Act means what it says,” the district court declared. “Virginia cannot amend its Constitution to disenfranchise citizens” for other crimes. Plaintiffs were granted a permanent injunction to prevent the state from disenfranchising them, since their felony convictions were for other crimes—related to drugs—that were not in existence in 1870. The district court also granted the motion for class certification, ensuring that its ruling would benefit every former state prisoner. Plaintiffs were represented by attorneys with the American Civil Liberties Union, the Protect Democracy Project, and the national firm of Wilmer Cutler Pickering Hale & Dorr LLP. See: King v. O’Bannon, 2026 U.S. Dist. LEXIS 12244 (E.D. Va.).

Because governors could reverse the restriction and grant voting rights to former felons, their right to vote was subject to whipsaw changes every time different parties secured the governor’s mansion. As PLN reported, three Virginia governors progressively expanded restoration of voting rights before Youngkin undid it all in 2023, requiring ex-felons to petition him individually for re-enfranchisement. [See: PLN, Sep. 2023, p.61.]

King told the Washington Post that the ruling left him “overjoyed.” State lawmakers have put a constitutional amendment on the November 2026 ballot that would automatically restore voting rights to felons who complete their sentences, like 23 other states already do. Newly inaugurated Gov. Abigail Spanberger (D) has said that she supports the amendment. 

Additional source: Washington Post

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