Last Friday, Virginia Governor Terry McAuliffe restored voting rights to more than 200,000 people with previous felony convictions. It’s a momentous stroke in both scope and effect; with an eye towards the 2016 races, The New York Times estimated its electoral impact as “small but potentially decisive.” But the significance of McAuliffe’s efforts goes far beyond a single election. It instead marks an exorcism for one of Jim Crow’s last vestiges in Virginia’s state charter—and a reminder of how many of its legal aftereffects still linger today.
Many of Jim Crow’s most pernicious aspects were swept away in a Second Reconstruction of sorts during the civil-rights movement of the 1950s and 1960s. But those efforts had little effect on the criminal-justice system and its role in enforcing white supremacy, both in the South and beyond it. Disenfranchising people with criminal convictions was one of many vote-suppressing tools deployed in the state’s 1902 constitution, which was explicitly drafted and ratified to destroy black political power in the Old Dominion.
The path to Virginia’s Jim Crow constitution began with its Reconstruction constitution. In 1868, delegates gathered to draft the state’s first constitution since the end of the Civil War. Led by John C. Underwood, a domineering federal judge and enthusiastic abolitionist, the convention produced a charter that guaranteed the vote to every 21-year-old male citizen, regardless of his race. (Convention delegates rejected Underwood’s efforts to include women’s suffrage, however.) Restrictions on the electorate were minimal. A set of clauses excluded only people convicted of corruption or treason, participants in duels, and “idiots and lunatics” from voting.
Virginians approved the “Underwood Constitution,” as it became known, by a wide margin in 1870. But their progress towards multiracial democracy only lasted a generation. Redeemer Democrats began to supplant Republican officeholders, both in Virginia and throughout the South, in the 1880s and 1890s. Once in office, they steadily repealed Reconstruction-era reforms and enacted Jim Crow laws aimed at suppressing black political power. Control of the Virginia General Assembly allowed them to pass restrictive election laws, but by 1900, those efforts culminated in an effort to eliminate the black franchise once and for all.
“The safety and perpetuity of our free institutions depend upon the purity and inviolability of the ballot,” said John Goode, president of the 1902 constitutional convention and a former colonel in the Confederate Army. Threatening the ballot’s “purity” were black voters enfranchised during Reconstruction. By ratifying the Fifteenth Amendment to protect their right to vote, Goode argued, the Republican Party “not only committed a stupendous blunder, but a great crime against civilization and Christianity” against the South.
“The negro had just emerged from a state of slavery. He had no education. He had no experience in the duties of citizenship. He had no capacity to participate in the functions of government,” he told the other delegates. “Under the circumstances existing at the period of reconstruction, the bestowal of universal suffrage upon the negro was a grievous wrong to both races.”
The ideal solution, he argued, would be the repeal of the Fifteenth Amendment, a view shared by many of his contemporaries at the convention. Northern and Western states opposed such an effort, but Goode suggested the rest of the country might agree to it after the Civil War’s hatreds faded. “Until that auspicious day shall come, we must adapt ourselves to the conditions in which we are placed,” he declared.
Black political suppression was neither an accident nor a mistake; it was the central purpose of the convention. Newspapers plainly reported it and politicians eagerly campaigned on it. “I told the people of my county before they sent me here that I intended, as far as in me lay, to disenfranchise every negro that I could disenfranchise under the Constitution of the United States, and as few white people as possible,” R.L. Gordon told his fellow delegates during the suffrage debates.
That proved trickier than expected. Delegates faced two balancing acts when crafting the suffrage provisions. The first one was constitutional. The Fifteenth Amendment prohibited states from denying the vote to black Americans because of their race, and the delegates had to craft exclusionary measures that targeted black voters without explicitly referencing them, lest the U.S. Supreme Court intervene.
But the Court had already cleared a possible path for the delegate’s efforts. In 1890, Mississippi had enacted a constitution to eliminate the black franchise with literacy tests, poll taxes, and a grandfather clause. Those methods were challenged before the U.S. Supreme Court eight years later by Henry Williams, a black man convicted by an all-white jury, whose members were drawn from the state’s voting rolls.
The Supreme Court unanimously upheld the conviction in Williams v. Mississippi, ruling that the provisions did not violate the Fourteenth Amendment’s equal-protection clause because they were written in a race-neutral manner. Mississippi’s suffrage requirements “reach weak and vicious white men as well as weak and vicious black men,” Justice Joseph McKenna wrote for the Court, “and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”
Virginia’s delegates referenced the Williams decision throughout their debates. They were also well aware of the racial imbalances in the state’s criminal-justice system. Fears of black criminality suffused the argument against black enfranchisement. Gordon told the convention that in the South, six whites out of 10,000 were in prison compared to 29 blacks out of 10,000, “showing that since these people have been made free, instead of improving, the record of crime show that they are retrograding.”
Previous Virginia constitutions also included language about disenfranchisement for criminal acts. The 1830 constitution limited it to “infamous crimes,” for example, while its 1851 successor drafted by reformers added bribery and the 1870 charter targeted treason and corruption. What set the 1902 constitution apart was the breadth of crimes it included. Drawing on language from other states’ constitutions, the convention approved a clause that disenfranchised Virginians convicted of numerous crimes, including “treason or of any felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery, or perjury.”
Overall, disenfranchising criminals was one of the less contentious debates at the convention. The delegates often argued instead about the second balancing act they faced: disenfranchising as many black voters as possible without disenfranchising large numbers of white voters as well. Many delegates had no problem with also excluding poor and illiterate white voters in large numbers, but enough of them raised concerns about it to drag out the debates.
The final suffrage article once again limited the franchise to men 21 years of age and older. It imposed a poll tax, from which Civil War veterans were exempt. To weed out illiterate voters, it required prospective registrants to apply without assistance and in their own handwriting. And to grant local officials the latitude necessary to exclude any black Virginians who met the other requirements, it required voters to answer any questions posed to them by an election official.
Some delegates feared the provisions would exclude too many prospective white voters. But its drafter, future U.S. Senator and Treasury Secretary Carter Glass, claimed otherwise. The suffrage article “does not necessarily deprive a single white man of the ballot, but will inevitably cut from the existing electorate four-fifths of the negro voters,” he told his colleagues to applause. “That was the purpose of this convention; that will be its achievement.”
“Will it not be done by fraud and discrimination?” another delegate asked.
“By fraud, no; by discrimination, yes,” Glass replied. “But it will be discrimination within the letter of the law, and not in violation of the law.”
Unlike its 1870 predecessor, no referendum on the Jim Crow constitution was held before it went into force. The effects were immediate and profound for black voters as well as white ones, despite Glass’s claims. In his book on Jim Crow’s effects in Virginia, the historian J. Douglas Smith summed up the new charter’s radical impact:
While 264,095 Virginians voted in the presidential election of 1900, only half that number, almost all of them white, bothered four years later. By the end of 1902, determined registrars and literacy tests had eliminated all but 21,000 of an estimated 147,000 blacks of voting age from the registration lists; three years later, the new poll tax cut that number in half. The electorate was so thoroughly eviscerated that throughout the first half of the twentieth century the Democratic Party regularly elected its gubernatorial candidates with the support of less than 10 percent of the adult population. From 1905 to 1948, state employees and officeholders accounted for one-third of the votes in state elections. So few Virginians voted in the first half of the twentieth century that political scientist V.O. Key quipped that “by contrast Mississippi is a hotbed of democracy.”
Change did not come until the civil-rights movement. By the late 1960s, Virginia had lost most of its disenfranchising tools to court decisions and federal legislation. The Supreme Court struck down grandfather clauses under the Fifteenth Amendment in 1915 and abolished state and local poll taxes in 1966. The Voting Rights Act of 1965 eliminated literacy tests and required Virginia and other states to seek approval from a federal court or the U.S. attorney general before implementing changes to its election laws. In 1972, Virginia enacted its current constitution, cutting the 35,000-word Jim Crow charter down to a more streamlined 18,000-word text. Many of the defunct measures to constrain black voting were erased along the way.
But the felon disenfranchisement provision remained and excluded hundreds of thousands of Virginians from the polls. 48 states have similar restrictions, although only a handful of them include lifetime bans. The Sentencing Project estimates that almost 6 million Americans can’t cast a ballot because of post-conviction restrictions imposed upon them.
Now, Virginia is rolling back more than a century of racial disenfranchisement conducted beneath the thinnest veneer of legitimacy. But similar provisions remain intact in many other states, where legislators were not always so explicit about their motives. And even with McAuliffe's orders, the progress is tenuous. His successor could choose not to reinstate the rights of future ex-felons; Kentucky experienced a similar backslide last December. In North Carolina, meanwhile, a federal court recently upheld a sweeping set of voting-rights restrictions. As R.L. Gordon might have put it, instead of improving, the record of voting rights show that they are retrograding.