Virginia Governor Bypasses Court Ruling To Help 200,000 Ex-Felons Vote

[ProgressiveEconomist]

140. In 1902, what was the INTENT of the VA constitutional convention that disfranchised 'felons'?

Only four states currently take away a 'felon's' right to vote for the rest of his life: FL, VA, KY, and IA.Though a 2005 11th Circuit decision in FL seemed to foreclose most prospects for overturning these disfranchisement' through 14th Amendment federal lawsuits, a Georgetown Law student thinks VA's disfranchisement' might be ripe for such legal action:

"Consider this infamous quote from the 1901-02 Virginia Constitutional Convention:

'Discrimination! Why, that is precisely what we propose. That, exactly, is what this Convention was elected for–to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of legally, without materially impairing the numerical strength of the white electorate'.

.”That quote comes from Carter Glass, a future U.S. Senator and the very delegate who sponsored the state’s suffrage amendment."

(quote from Alex Keyssar’s The Right to Vote: The Contested History of Democracy in the United States)

Now, two things are clear from these statements: first, the explicit intent behind the suffrage laws adopted at the Virginia Constitutional Convention in 1901-02 was to discriminate on the basis of race; second, these legislators believed that any law which did not specifically restrict the right to vote based on the voter’s race was constitutional.

Of course, under our modern jurisprudence, that second belief is false: a law enacted with the clear intent to discriminate is hard to sustain under the Equal Protection Clause.  However, Virginia, like Florida, has revised its state constitution since the offending provisions were enacted.

But is a (2005 11th Circuit ) test with such a low burden for the state really appropriate where the law was so thoroughly tainted at the outset?

While the 11th Circuit granted additional leeway to Florida where the intent behind their arguably discriminatory law was unclear, I believe the evidence from Virginia justifies a much more searching inquiry, and a much higher level of scrutiny than the 11th Circuit endorsed for Florida in Johnson. The greater the evidence of a law being used to intentionally and willfully discriminate, the greater the burden a state should face in keeping it on the books."

J.R. Lentini is a student at Georgetown University Law Center.

http://electls.blogs.wm.edu/2009/12/04/discriminatory-disenfranchisement-in-virginia