Virginia and Kentucky stand as two of the four commonwealths in the nation, along with Massachusetts and Pennsylvania. These two states are starkly similar in more than name. Both states have codified criminal justice systems with archaic and unfairly punitive rules. The twin commonwealths both require individual petitions to the governor, who gets to decide whether the individual petitioner is worthy of their right to vote. This practice has been subject to increased scrutiny since Virginia Governor Terry McAuliffe’s executive order in 2016 that restored voting rights to more than 200,000 convicted and since released felons.
After Kentucky Governor Andy Beshear followed suit in 2019, restoring the right to vote to more than 140,000 felons, many questioned why these sweeping actions were necessary in the first place.
The Restoration (and subsequent refusal to acknowledge it)
After the Civil War and the disintegration of the Confederate States of America, the U.S. entered a period known as Reconstruction. This period saw military governance of several former seceded states, and general order established in a pro-union stance. After relinquishing military command, redrafted constitutions were published in these newly readmitted states. Virginia, a state that was originally reluctant to become a part of the Confederacy, ultimately became their most historically important state after secession. After the 1865 defeat and the military Reconstruction, Virginia became a champion of Jim Crow policy in 1870 after their readmittance to the Union.
Slavery was dead, but it’s vile cousin segregation continued to rear it’s head in the South, and Virginia was no stranger to it. By the 1870’s, 95% of incarcerated Americans in the South were Black. With its newly written constitution taking account of the knowledge that white police forces with little to no scrutiny over their arresting practices of minorities, Article II was written into law. As it reads, Article II of the Virginia Constitution 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.” As such, this 95% incarceration rate not only virtually removed African Americans from the general populace, it also removed their right to vote if they were convicted of felonies – and they largely were.
Enfranchisement isn’t Straightforward, Nor is it Easy
This practice of incarcerating African Americans, who historians agree were largely overcharged or even outright falsely accused, has perpetuated segregation in Virginia for nearly a century. In fact, even after the defeat of the infamous Byrd machine that sustained segregation in Virginia for nearly 70 years, this amendment proved to be difficult to discard. Up to Terry McAuliffe’s gubernatorial victory in 2013, felons still had to petition the governor individually and satisfy a number of requirements in order to be enfranchised. After McAuliffe’s victory, he loosened these regulations for violent felons, and made non-violent felon enfranchisement automatic on application. In 2016, after the defeat of a constitutional amendment that would reword Article II and enfranchise felons, McAuliffe signed an executive order granting the right to vote back to felons, but this was stuck down in the Virginia Supreme Court. After this order, McAuliffe shed light on how archaic Virginia’s enfranchisement system was by individually signing roughly 13,000 orders to restore voting rights to felons.
After this broader executive order was struck down, an important legal precedent was set. Now that almost all the released felons in Virginia have had their right to vote restored, who’s to say that the next Governor would continue to sign these orders to restore voting rights? This was a large topic of debate in 2017, when the next Governor was up for election. Fortunately for petitioners, Ralph Northam won handily, and continued this policy. 2021 was a different story. Glenn Youngkin won in an upset victory against McAuliffe, vying for a second term. This posed the question of whether Youngkin would continue this policy. Governor Youngkin has since displayed, in a politically shocking move, a respect for this precedent and has continued to enfranchise felons. As such, Virginia has a de facto policy of enfranchising their felons. Until this is codified in law, however, felons will be forced to see if their voting rights are at stake every 4 years.
Kentucky Follows Suit
Kentucky, in a near indistinguishable constitutional amendment, followed Virginia’s lead in 1891. Section 145 of the Kentucky Constitution as currently ratified, reads that, “Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.” One might notice the heavy leverage on the executive acting as the sole authority for granting felons the right to vote. With the South having a near unbreakable record of voting for segregation, having a pro-Jim Crow governor was a given in nearly every deep and upper Southern state, including Kentucky.
Not only did Kentucky follow Virginia’s lead all throughout Jim Crow, they have also seen a modern incarnation of the Old Dominion’s shepherding. Governor Beshear signed a similar executive order as McAuliffe’s original enfranchisement order in 2019, and as of 2022 it has not been struck down in court. Beshear granted nearly 140,000 rehabilitated people their right to vote again, and has attacked one of the last standing institutions of the former Confederacy and the dirty legacy of slavery in the United States.
Many still worry, however. Beshear only won in Kentucky by 0.5 points. Like Youngkin’s win in Virginia, this was an upset victory–and may not last. Unlike Virginia, there is far less of an argument for precedent in Kentucky. Felon enfranchisement has been an institution for 8 years in the Old Dominion, and the Commonwealth of Kentucky has only claimed this for 3. Even then, Youngkin’s continuation of this policy was seen as an unprecedented political move. Beshear stands for reelection in 2023, and much like Virginia, felons who will be released after this election have no choice but to sit and wait patiently to see if they will be able to reclaim their right to vote.
Codification is Key
Until Virginia and Kentucky officially and formally pass a constitutional amendment that alters Article II and Section 145 respectively, felons are still disenfranchised in these states. A single person having absolute authority to decide whether a felon is rehabilitated and deserves their right to vote or not is an Orwellian retelling of the American Jim Crow era. Harkening back to the reasons these amendments were even put into place places us in the uncomfortable position of acknowledging that felon disenfranchisement is categorically racist.
We think of barring felons from voting as protecting our future. Surely those that have committed crimes cannot be of sound mind, right? Surely, they cannot be able to take part in a societal process they have forfeited in their knowing involvement in a crime? These questions fail to take into account why these systems originated. Disallowing a disproportionate amount of the African American community in the South perpetuated Jim Crow and segregation laws and allowed the Solid South to stay solid far longer than it should’ve.
Louisville Political Review 