Key to restoring voting rights lies in state constitution

After Iowa and Florida took actions to restore voting rights to tens of thousands of ex-offend ers, folks in Virginia began to ask, "Why not here?"

To be sure, Govs. Mark Warner and Tim Kaine have relaxed Virginia's voter-restoration laws, which along with Kentucky's are deemed the most restrictive in the U.S.

As a result, about 6,000 nonviolent felons have had their voting rights restored under those two Democrats. But that represents a trickle compared with the splash that Republican Gov. Charlie Crist of Florida created last spring when he restored voting rights to some 115,000 ex-offenders. In 2005, Democratic Gov. Tom Vilsack of Iowa issued an executive order restoring voting rights to 50,000 ex-offenders.

The Kaine administration, however, says the Constitution of Virginia is ambiguous on this issue of executive clemency. Bernard Henderson, senior deputy secretary of the commonwealth, says that if Kaine instituted a more sweeping rights-restoration policy, it likely would be challenged in the courts.

Some 950,000 ex-offenders in Florida have served their time. Ryan King, a policy analyst for the Washington-based Sentencing Project, said Crist instituted a "virtually paperless" restoration procedure for certain categories of nonviolent ex-offenders. The restoration is "much closer to automatic" than in Virginia, where restoration is done on a case-by-case basis.

The Sentencing Project estimated in 2004 that Virginia had disenfranchised about 377,000 ex-felons, a figure state officials dispute as too high. Those officials say there's no way to know the total. A disproportionate majority of the disenfranchised are black; a century-old amendment to the state constitution was expressly done to strip the vote from black Virginians.

Henderson said some would read the state constitution and see allowance for more sweeping voter restoration; others would argue that it requires a case-by-case evaluation.

The dispute would like take months, or perhaps even years, to resolve. "For however long it takes for the courts to do that, nobody's going to get their voting rights restored," he said.

"There's a risk there," Henderson said. "The question is, do we want to take that risk and perhaps drag out the ability of those who want to have their rights restored, and have that dragged out for indeterminate months, or maybe even years?"

Larry Sabato, director of the University of Virginia Center for Politics, senses the ghost of Willie Horton. What if one of the re-enfranchised offenders committed a crime?

"Ever since Michael Dukakis, I think there's been a real hesitancy on the part of Democrats to be in a position of being perceived as soft on crime," he said.

Crist acted in Florida out of moral revulsion over the permanent disenfranchisement of ex-offenders. You'd like to see Kaine make a bold move based on conscience.

But Henderson argues that executive orders aren't permanent and can be undone by a governor's successor. The remedy is in changing the state constitution so voting-rights can be determined by a law "that isn't dependent on the wishes and philosophy of any given governor at the time."

State Sen. Yvonne B. Miller, D-Norfolk, has attempted, without success, to do just that. But unless the House of Delegates changes dramatically, the outcome won't.

Virginia's constitution was amended long ago to suppress the black vote. Undoing this wrong will require Virginia to go through that document, rather than around it.
Contact Michael Paul Williams at (804) 649-6815 or .