Governor McAuliffe's Gambit

A move to restore voting rights to Virginians with felonies has signaled a new way forward in the commonwealth.

Over a century ago, Virginia first enshrined felon disenfranchisement in its constitution. A Jim Crow-era provision stated that all people who had been convicted of felonies were barred from voting without first receiving formal restoration of their rights from the state’s governor. Its rationale was explicitly racist. The policy resulted in generations of disenfranchisement, and years in which Virginia was a leading state in denying people with felonies civil rights.

Governor Terry McAuliffe provided an abrupt change last week with a surprise executive order that used his power as governor to immediately re-enfranchise all people with felonies who had completed parole. Over 200,000 people immediately gained the right to vote, a number that could stretch even higher, because McAuliffe has pledged to issue regular executive order updates that continually grant the franchise over the rest of his term in office. McAuliffe, a Democrat, has been accused of political engineering in an election year. His decision has major implications for the future of politics in the Old Dominion.

Just how might the sudden entrance of over 200,000 people into the electorate change its composition? Virginia is well-known now as a so-called “purple state,” and Republican and Democratic nominees for many state and federal offices are usually separated by razor-thin margins. President Obama won by around 150,000 votes in Virginia in 2012. McAuliffe himself won by 56,000 votes in 2013 over Republican challenger Ken Cuccinelli. If people with felonies became a single voting bloc and were all registered to vote, they would comprise 4 percent of all registered voters, a group large enough to decide many races in the state.

Of course, people with felonies do not constitute a coherent voting bloc—they have varied backgrounds and beliefs. Much of the Republican uproar around McAuliffe’s order as a political move to benefit Democrats, however, serves as a tacit recognition of the strong racial bias of incarceration. Data from the Sentencing Project show that over half of the population affected by felony disenfranchisement in Virginia is black, a share much higher than the overall demographic share of black people in the state. Virginia is among the worst three states at overall disenfranchisement of black people—Kentucky and Florida also have laws that allow almost no pathway for automatic restoration of rights. Black voters do tend to vote Democrat, and Virginia naturally leans Democratic by affiliation. Any significant infusion of black voters into the electorate could solidify Obama’s 2008 and 2012 results, which showed that mobilizing black voters can deliver it to Democrats.

Is the move politically motivated? Republicans could argue that any move to increase turnout—from making registration easier to increasing early voting and absentee voting—has a political payoff for Democrats. Although polls already have Clinton well in the lead in the 2016 presidential race, Republicans might argue that McAuliffe is influencing congressional races, local races, and ballot measures that are up for grabs this fall as well. Also, McAuliffe’s Lieutenant Governor Ralph Northam has indicated his interest in running for governor in 2017, a year in which state House of Delegates seats will be up for election. So, even if the move isn’t politically motivated, it has certain partisan political implications.

Generally, the argument that voting should be difficult has picked up steam in conservative circles. As much of the South turns blue by partisan affiliation, naked efforts to dilute demographic power and decrease turnout serve to maintain Republican strangleholds on most gubernatorial and legislative races in the country. Their concern in Virginia may be premature, however, at least for the 2016 races. Even groups inclined to register newly enfranchised voters may find the effort to track down and register so many people in just a few months overwhelming. Parties are privy to less voter information in Virginia than some other states, and successful mass registration would have to rely on comprehensive data on ex-felons. Also, people with felonies simply vote less frequently than other voters in general, owing to demographic factors including youth and education. While it’s certainly within the realm of possibility that McAuliffe’s move will have a long-term impact on federal, state, and local races, Democrats will have to work hard in the state to capitalize on it.

Those efforts are vital to the long-term viability of McAuliffe’s executive order. There are already grumblings that the governor’s actions are unconstitutional and rely on a technicality to change the spirit of the state constitution. Past Democratic efforts to overturn felony disenfranchisement have focused on amending the constitution, as some scholars and lawmakers have concluded that it does not grant a governor the power to order what McAuliffe did. The governor’s move to include all people with felonies, including violent felonies, in his sweeping order may cost him some of the political capital necessary to implement it. It’s likely that the constitutionality of the action will be determined in court, a decision which could put newly registered voters in legal limbo. Assuming the order is upheld, the fact that McAuliffe cannot actually change the state constitution means that the future of re-enfranchisement will depend on governors consistently issuing new monthly updates. Virginia governors cannot serve consecutive terms. If a Republican wins the office in 2017, or a Democratic successor has a change of heart, it would reset Virginia’s clock.

This new group of potential voters might have a say in the long-term prospects of disenfranchisement in the state. While pressure to end mass incarceration and police brutality has been a significant national policy motivator, most of the room for reform is at or below the state level. If mobilized and registered, the people impacted firsthand by Virginia’s criminal policy might be the most motivated group to vote for measures and politicians––including the governor, state delegates, sheriffs, and commonwealth’s attorneys––that push for reforms and perhaps even a constitutional amendment to end disenfranchisement. However, there is also a risk that negative sentiments about allowing people convicted of violent felonies to vote will drown out any of these effects.

The immediate political ramifications of McAuliffe’s executive order are unclear, even though its potential is certainly evident in a state that seems destined to continue to produce close races. The surprisingly risky move from the governor is a sudden reversal of Virginia’s history of disenfranchisement and a glimpse of a future that is finally free from the explicit racial animus of its post-Reconstruction nadir. Even if the restoration of the franchise is short-lived, if people with felonies vote in 2016 and the foundations of the Commonwealth do not tremble and it does not fall into the sea, supporters of felony disenfranchisement may be forced to confront the discomfiting fact that felony disenfranchisement is not undergirded by moral judgment or practical reality, but by race. McAuliffe’s gambit will at least provide the opportunity for that bit of reflection, and that bit of reflection is no small thing.