It is impossible to understand the United States without understanding the Civil War and Reconstruction. The American constitutional order went through more changes during those two decades than in the other 230 years of its existence combined. Now the Supreme Court may soon have another opportunity to revisit their contested aftermath.
A group of Virginia election officials asked the justices last month to effectively nullify one of the Reconstruction-era laws that set the terms for the state’s postwar readmission to the Union. In doing so, they hope to maintain a strict regime of disenfranchising Virginians with felony convictions that the Reconstruction-era Congress sought to prevent. Should the justices let the lower court’s decision stand, it could breathe new life to a long-forgotten congressional effort to protect multiracial democracy in the South.
The case springs from a decade-long conflict over the Virginia state constitution and its strict felon-disenfranchisement provision. Twenty-four states impose some sort of legal barrier on their residents’ right to vote after being convicted of a felony. Many of those states restore a prisoner’s voting rights after they complete their sentence, including probation and parole. Others make it permanent for certain crimes.
Virginia is an outlier: Anyone convicted of a felony in the state is automatically and permanently disenfranchised upon conviction. (They are also excluded from jury service and certain other civic rights and duties.) Under the state constitution, which was most recently rewritten in 1971, Virginians with felony convictions can only regain their right to vote after their “civil rights have been restored by the governor.”
This discretionary power has led to uneven policy approaches over the last decade by Virginia’s chief executives. Republican Bob McDonnell spent his tenure as governor from 2010 to 2014 working to modernize the state’s patchwork criminal databases, hoping to make it easier to identify Virginians who would be eligible for having their rights restored. His successor, Terry McAuliffe, a Democrat, initially issued an executive order in 2016 that sought to restore voting rights en masse, which was estimated to affect roughly 200,000 Virginians at the time. The Virginia Supreme Court overturned his order later that year and held that governors must restore voting rights on an individual basis.
In response to the ruling, McAuliffe spent the rest of his term approving Virginians’ restorations by signing individual orders almost every day. By the time he left office after the 2018 election, he had restored voting rights to exactly 173,166 Virginians. His successor, Ralph Northam, a fellow Democrat, said that he had restored voting rights for an additional 69,000 Virginians by 2021. Glenn Youngkin, a Republican, has moved at a far more glacial pace. After restoring more than 4,300 Virginians’ rights in his first year, he dismantled the accelerated procedures adopted by his predecessors and restored a mere 1,641 people’s rights in 2024.
The Supreme Court has long held that felony-disenfranchisement measures do not typically violate the federal Constitution, citing the widespread historical practice in the eighteenth and nineteenth centuries. In 2023, however, voting rights groups brought a novel legal challenge to Virginia’s disenfranchisement clause in federal court by arguing that it violated the Virginia Readmission Act of 1870. The somewhat obscure Reconstruction-era federal law imposed certain conditions on the formerly rebellious state before it could regain its representation in Congress.
The Civil War is often described as a conflict between “the Union” and “the Confederacy,” with two competing groups of states that were organized under two different “national” governments. Legally speaking, however, the Confederate States of America never existed. No foreign government ever recognized it as an independent country. The Supreme Court ruled in the 1869 case Texas v. White that secession had been unconstitutional and that the “Confederate states,” including Virginia, never actually left the Union during the Civil War.
How those states would be governed after the war was the principal question of Reconstruction. In 1867, Congress passed its first Reconstruction Act to divide the South into five military districts and place them under martial law. The goal was to “readmit” the states into the Union by drafting new state constitutions that, among other things, enfranchised the formerly enslaved Americans. Since those states had never legally left the Union, readmission in this context meant the restoration of both civil government in each state and, most importantly, their representation in Congress.
Congress reserved the right to approve the newly drafted state constitutions and compel changes before readmitting their representatives. In the Virginia Readmission Act, Congress required Virginia to never deprive any citizen from holding office on “account of his race, color, or previous condition of servitude” and forbade the state from amending its constitution to “deprive any citizen or class of citizens” of the “school rights” provided by that state constitution. The implicit goal was to ensure that free Black Americans could fully participate in postwar civil society.
Most importantly, at least for this lawsuit, the Virginia Readmission Act required that Virginia’s state constitution “shall never be so amended or changed as to deprive any citizen or class of citizens of the right to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law.” To that end, the state’s 1870 constitution only disenfranchised Virginians for a handful of specific high crimes like bribery, embezzlement, and treason, in addition to other common-law felonies.
After Reconstruction ended in the late 1870s, however, Redeemer governments in Virginia sought to roll back the state’s expansive franchise. Those efforts culminated in the state’s 1902 Constitutional Convention, which suppressed Black voting power in Virginia by enacting the usual menu of Jim Crow tactics, including poll taxes, literacy tests, and grandfather clauses. It also added provisions to deny the vote to anyone convicted of certain non-felony crimes like “petit larceny” and “obtaining money or property under false pretenses” that could be arbitrarily applied to Black Virginians.
Most of those barriers were dismantled by the Supreme Court’s civil rights rulings and federal voting rights laws in the 1950s and 1960s. The felon-disenfranchisement provision reached its current form when Virginia rewrote its constitution for the most recent time in 1971: “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.” Its breadth and the wholly discretionary nature of its relief are unmatched by any other state.
In their 2023 lawsuit, a group of Virginians and voting rights organizations argued that the 1971 language violated the Virginia Readmission Act of 1870. They claim that the federal law only allows Virginia to disenfranchise for felonies that would have existed at the time. “In 1870, ‘common law’ felonies were widely understood to be a distinct category of crime from ‘statutory’ felonies,” the complaint explained. “The nine ‘common law’ felonies were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.”
Virginia’s current criminal statutes include numerous felonies that were not treated as such in the Reconstruction era. Some of the individual plaintiffs pointed to the state’s drug laws, since controlled-substance crimes would not emerge for another few decades, to address opium. “In fact, Virginia first criminalized drug sales in 1904, punishing as a misdemeanor certain sales of opium, and then made possession of cocaine with intent to distribute a statutory felony in 1908,” they claimed.
The Fourth Circuit Court of Appeals rejected part of their lawsuit, arguing that the plaintiffs could not use Section 1983—the primary legal mechanism for federal civil rights claims—to sue Virginia or state officials on these grounds. But it allowed the claims to go forward under a Supreme Court precedent known as Ex parte Young. In that 1908 case, the high court held that litigants could sue a state in federal court in some circumstances for allegedly violating a federal law, even if that law does not provide an explicit right to do so.
The defendants, which currently include the state Board of Elections and its members, had argued for a narrow interpretation of Young. They argued, among other things, that Young did not apply if Congress had a different enforcement mechanism in mind when drafting the law in question. In this case, they pointed to Congress’s ability to expel Virginia’s congressional delegation as an alternative way to enforce the law. They also argued that there were no “judicially manageable standards” for a federal court to use when crafting a remedy, which the Supreme Court has previously required in Young cases.
In its 18-page ruling, the Fourth Circuit panel concluded otherwise. It rejected the notion that Congress’s expulsion power was envisioned as the remedy, calling it a “far cry” from the usual practice of finding a more explicit means to enforce the law. The panel also found it feasible to craft a consistent rule to enforce the law. “To be sure, interpreting and applying this statute may not always be easy,” the court conceded. But it added that interpreting federal statutes is “a familiar judicial exercise, one for which there is a superabundance of tools that federal judges employ every day.”
The defendants asked the Supreme Court to intervene in March, describing the lower court’s ruling as a threat to state sovereignty. “The Fourth Circuit’s ruling that the Readmission Acts are judicially enforceable invites courts to wade into the political decisions that restored the rebel states to federal representation more than 150 years ago, calling into question Congress’s continuing determination that the states have republican governments and are entitled to representation,” they told the justices in their petition for review. “This alarming consequence flows from the lower court’s misinterpretation of the Readmission Acts, which Congress never intended private parties to enforce.”
The implications of the Fourth Circuit’s ruling go far beyond the Old Dominion. As the Virginia officials noted in their petition, they are not the only state for whom Congress drafted a Readmission Act during Reconstruction. The attorneys general for Texas and 16 other states filed a friend-of-the-court brief where they raised a cavalcade of objections to the Fourth Circuit’s ruling beyond its interpretation of Young.
“Judicial enforcement of the Acts against the States would also violate the anticommandeering doctrine, allow Congress to control voter qualifications, and violate the equal-sovereignty doctrine by treating the ten covered states different [sic] from all others,” Texas Attorney General Ken Paxton told the justices in the brief. (Tennessee, the eleventh state held by Confederates, had already regained congressional representation before the Readmission Acts were passed.) He also argued that the dispute was a “political question” reserved for the elected branches.
If the Supreme Court declines to hear the case or sides with the lower court, the Fourth Circuit’s decision will radically reshape Virginia’s approach to felon disenfranchisement. It could also have significant consequences for the other nine states. Paxton noted, for example, that Mississippi and Texas would be bound by similar language on disenfranchisement from the Readmission Acts. While the two states have less restrictive disenfranchisement measures than Virginia, allowing the ruling to stand could expand them even further.
Paxton also pointed to a 2020 Fifth Circuit ruling that allowed a Young claim under the Readmission Acts to go forward against Mississippi. Like its Virginia counterpart, the Mississippi act included a provision requiring the postwar state constitution to create a “uniform” system of free public schools. Subsequent versions of the Mississippi state constitution dropped the “uniform” part, which the plaintiffs claimed had led to significant disparities in school funding and quality, depending on the community’s racial makeup and income level.
“School litigation is complicated enough under state law—it does not need a federal overlay,” Paxton claimed, quoting from a dissenting Fifth Circuit judge. “But litigants could see the Fourth Circuit’s decision, as well as the Fifth Circuit’s, as an opportunity to combine the Readmission Acts with Ex parte Young to ‘pave the way for federal court orders to effect a major restructuring of state school funding.’ The Court should reject such efforts.”
These arguments will likely meet a friendly ear at the high court. The six-justice conservative majority has spent the last two decades dismantling federal protections for voting rights and civil rights, often by invoking the doctrines cited in the states’ briefs. Chief Justice John Roberts all but pulled the equal-sovereignty doctrine out of thin air to gut the Voting Rights Act of 1965, in 2013. Just last year, the court effectively wrote the disqualification clause out of the Fourteenth Amendment, a postwar measure to keep rebels and insurrectionists out of public office, to avoid applying it to then-candidate Donald Trump.
The justices have already signaled some interest in the case. After the Virginia officials filed their petition in March, the plaintiffs waived their right of response, a common time-saving move in appeals that the responding side thinks are unlikely to succeed. The court specifically requested that the plaintiffs file a response less than two weeks later. That does not guarantee the court’s intervention down the road, by any means. But it signals that at least some of the justices may be interested in taking it up. They will likely announce a final decision on whether to hear the case by the end of the current term in late June.
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