U.S. Court of Appeals in Richmond. (Parker Michels-Boyce for The Virginia Mercury)
Federal judges in the 4th Circuit Court of Appeals in Richmond on Tuesday appeared sympathetic to the plaintiffs in a case challenging Virginia’s disenfranchisement of people with felony convictions.
After a federal district judge allowed the challenge to move forward earlier this year, alleging that Virginia has been out of compliance with a Reconstruction-era federal law, the 4th Circuit had a hearing on the state’s attempt to toss the case.
Deputy Solicitor General Kevin Gallagher, in defense of the state, said the “unique” and old federal statute “is not something that people are trying to enforce.”
Defendants include Gov. Glenn Youngkin, the Secretary of the Commonwealth — who was Kay Coles James when the suit was first filed — and several election officials. Tuesday’s hearing was part of their interlocutory appeal limited to whether Virginia is entitled to sovereign immunity — basically, whether or not the state and its agents can be found to have done wrong or not.
An interlocutory appeal is a type of appeal that can be filed while a case is active and before a final judgment. Neither the interlocutory appeal nor the Readmission Act case have been ruled on yet. And though the appeal was the point of Tuesday’s meeting, discussion veered into the Readmission case.
The latter is focused on the 1870 Virginia Readmission Act, a federal law that allowed Virginia, a former Confederate state, to rejoin the U.S. Congress. Similar laws were also employed as other formerly Confederate states rejoined, with the condition that states’ constitutions could not be used to deprive anyone of voting rights, “except as punishment for such crimes that are now felonies at common law.”
“Common law” felonies were defined as a limited set of crimes, whereas today people with any felony conviction in Virginia permanently lose the right to vote unless a governor restores it.
“Our claim is that essentially, Virginia made a promise when it was brought back into the United States Congress. It’s now time to keep that promise and to abide by the Virginia Readmission Act,” said ACLU attorney Vishal Agraharkar in a call with The Mercury on Monday.
Meanwhile, the defendants’ filing argues that Congress lacks the power to prohibit states from disenfranchising people with felony convictions under the Fourteenth Amendment in the U.S. Constitution and that states could choose to permanently disenfranchise people with felonies of all types, not just those in common law.
At the Tuesday hearing, Judge Roger Gregory noted Congress’ intent when using the Readmission Acts following the Civil War.
“(Congress) knew what (formerly-Confederate states) were going to do to newly-freed persons — they didn’t trust them,” Gregory said.
Gallager argued that the act was more limited to that time as a “contract between Congress and Virginia” to reenter the Union.
ACLU is working on the case with the WilmerHale law firm and a voting rights group called Protect Democracy. Plaintiffs are Virginians with felony convictions who have tried to have their rights restored by Youngkin without success.
And while it’s Virginia’s constitution which grants governors purview over restoration of rights that is at the core of the Readmission Act case, Youngkin has been at the center of legal challenges to restorations under his administration.
A once automatic process, Youngkin’s administration adjusted it last year to a petition-based one. As restoration numbers have dropped under his tenure as governor, various lawsuits have sprung up seeking answers about criteria for restorations.
While a case by a man who sought answers about his restoration rejection was dismissed, the judge presiding over that case opined that “much like a monarch, the governor receives petitions for relief, may or may not rule upon them, and, when he does rule, need not explain his reasons.”
Judge Gregory was curious about criteria Tuesday as well.
“Do we know what the governor’s role is, really?” he posited. “Do we have facts, depositions about how that works and ‘how does he filter them out?’”
He then suggested that a deposition would be the “best way” to glean information “for the only person that can restore rights.”
The court made no decision on the merits of the interlocutory appeal. From there, the Readmission Act case could potentially continue to be discussed and advance closer to a ruling.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX