A voting rights game-changer in Virginia
Plus, Amanda Carpenter debates the impact of a second Trump term
This week, a federal judge ruled that our case challenging the lifetime ban on voting in Virginia for everyone convicted of any felony will proceed.
This case is a big deal not just because it could re-enfranchise thousands of people whose right to vote has been taken away. It also represents a new and promising legal strategy that could change the game on felony disenfranchisement.
I asked Jared Davidson, Protect Democracy’s lead counsel on the case, to explain the legal theory in terms that even non-lawyers can understand:
Following the Civil War, the Reconstruction Congress was very concerned about protecting the newly established civil and political rights of Black men in the South. One particular concern was that white politicians antagonistic to Black voters would seek to manipulate state criminal codes by expanding what felonies triggered disenfranchisement — in short, subjecting Black men to sham criminal trials with the specific purpose of stripping them of their newly established voting rights.
To guard against this racist voter suppression tactic, Congress passed a series of laws called the Readmission Acts which set forth very specific terms for former Confederate states’ “readmission” to Congress. Pursuant to the Readmission Acts, Confederate states were prohibited from amending their state Constitutions to strip citizens of their voting rights for crimes unless those crimes were “felonies at common law” when the Acts were passed, in 1870. At that time, there were only nine such felonies — all serious crimes like murder and kidnapping.
Despite the clear limitations imposed by the Readmission Acts, the former Confederate states, including Virginia, have altogether ignored their legal obligations and have dramatically expanded the list of crimes that trigger disenfranchisement. One small but important example, in 1870, it was not a felony to possess many substances that states now criminalize as illegal drugs. However, throughout the South today, people are routinely stripped of their voting rights after being convicted of drug-related felonies. This is in direct conflict with the plain text of the Readmission Act. Moreover, and as intended, these disenfranchisement provisions have disproportionately stripped Black Americans of their voting rights. In Virginia alone, more than 300,000 Black voters are disenfranchised for life.
In this lawsuit, we are simply trying to uphold the legal obligations that Virginia agreed to as a condition for its reentry to Congress after the Civil War. Although this is a new legal theory to push back on racist efforts to disenfranchise Black voters, it is also very straightforward. Just because the law has not been enforced is no excuse. The explicit text of the statute itself could not be clearer.
A 150+ year-old law always intended to protect Black voters from discrimination, but that had effectively been forgotten about. Virginia has been plainly violating the law for over 100 years without consequence. And because other former Confederate states are subject to similar Readmission Acts, this is a case that could significantly reshape the fight against unlawful restrictions of voting rights across the South.
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But don’t get too lost in the legal theory — this is fundamentally about real people and their rights. Tati King, one of the plaintiffs, on why he decided to sue in Virginia:
I am bringing this lawsuit to right a wrong that has affected me for my entire life: I have never been granted the right to vote because of mistakes made when I was younger. I’ve served my time, I pay my taxes and I am an active member of my community, but I still have no say in the laws that impact myself and my family.
I want to use my voting rights to set an example for my children and my grandchildren: I teach them to understand the value of their rights and be responsible citizens, but also to know the value of second chances. I’m in my 50s now, and I want to give back and do something good for future generations. Instead, it feels like I am serving a second sentence with no opportunity for my voting rights to be restored.
Virginia has not only taken away my rights, but has silenced the voices of many other Black and formerly incarcerated Virginians for generations, which has an unjust impact on our community. As people who have experienced the criminal justice system, we have unique experiences and perspectives that we should be able to express at the ballot box.
An ongoing Reconstruction revival
As Ian Bassin and Kristy Parker wrote in The New York Times last August, we’re in the middle of a Reconstruction revival. Laws that were designed to rebuild our democracy after slavery and the Civil War, like the Readmission Acts, are taking on new life in the Trump era.
One of the laws Trump is charged with violating in his quest to overthrow the last election dates back to Reconstruction. The Klu Klux Klan Acts, passed in the 1870s, have reemerged from obscurity to help prevent voter intimidation today.
This revival isn’t lawyers resurrecting old statutes out of the blue — as Ian and Kristy write, this is all part of the same, continuous struggle to make the promise of Reconstruction real:
These battles are the newest iterations of the Reconstruction-era clashes. Just as the integration of freed Black people into our democracy in the 1870s was met with fierce resistance, so too did the election of the nation’s first Black president give rise to a revival of open bigotry. And just as the enactment of laws in the 1870s to enforce equal citizenship was met with intransigence, so too today should we expect to see their enforcement resisted.
The outcome of these legal clashes will determine the future of the country’s experiment in self-government. Either these laws will finally be fully realized and usher in a true multiracial democracy or the 150-year resistance to Reconstruction will prevail and white Americans reluctant to share power will reinforce their dominance over a diversifying nation. Authoritarianism rather than democracy would then be the order of the day.
You can follow this case, with the latest updates from our legal team and our co-counsel at the ACLU of Virginia and WilmerHale, as this develops here.
Amanda Carpenter debates the risk of a second Trump term
If you have a free half-hour this week, watch this video. It’s a live forum with Protect Democracy’s Amanda Carpenter, one of the authors of The Authoritarian Playbook for 2025, and the Heritage Foundation’s Mike Gonzalez, one of the contributors to Project 2025.
Or listen to it as a podcast here or read the transcript here.
It’s a rare instance where the information bubbles popped, if only for an afternoon. Above all, that’s a huge credit to the host, Margaret Hoover, and her PBS Firing Line team (if you have time, give them some appreciation here).
Two telling insights from the conversation.
The “deep state” myth is pervasive. The conceit behind Heritage’s program is that Trump’s first-term agenda was stymied by unelected civil servants (not the rule of law and high-profile Republican appointees, like John Kelly and Mike Pence, who refused to break laws on Trump’s behalf). This feeds into a second, even more dangerous myth.
Our institutions survived a first term — why would a second be different? Well, the answer is pretty simple: people. The people who put their constitutional oaths before Trump’s orders last time won’t be around next time. Because the Republican Party no longer has room for principled conservatives (like Amanda Carpenter) who are unwilling to pursue power at any cost.
Look for more on both of these dangerous myths, coming soon.
What else we’re tracking:
Speaking of the “deep state” myth, The New York Times Opinion Video team this week takes the question seriously — who exactly are the civil servants who could be targeted and purged in a second Trump term? Turns out, they’re pretty great. And their work is often critical. Watch here.
Hugely undercovered story of the week: Mike Pence will not support Donald Trump. Per Jonathan V. Last: “No American vice president has ever said that the president he served under is unfit to serve. It is the most devastating possible observation from the most credible source in existence.”
Not a lot of inspiring stories for democracies globally these days. But here’s one: Inside Guatemala’s liberal uprising, by Quico Toro.
Donald Trump has again promised to pardon those convicted of crimes on January 6th, calling them “hostages.” Tom Nichols breaks down why this pledge is so dangerous. (Read our explainer on the constitutional limits to the presidential pardon power here.)
State attorneys general are increasingly entering the legal fray to chip away at voting rights protections, reports States Newsroom. According to Cameron Kistler: “The tools that you’d use to ensure free and fair elections are slowly being pulled away.”
Daniella Ballou-Aares, John Pleasants and Peter Brack in The Fulcrum: “It’s an important time for business leaders to stand strong as guardrails of democracy, and to take action to preserve the core system that lets so many flourish.”
Democracy dies in silence: Hong Kong’s new security laws are a dramatic culmination of Beijing’s takeover — yet they passed with little tumult. Why? Per NYT: “The most vocal pro-democracy activists and lawmakers are now either in prison or self-imposed exile.”
This briefing often focuses on big, institutional democracy issues — marble columns and so on. But a healthy democracy also relies on all of us, as people, in our everyday lives. “Remaking the Space Between,” a new book from Diana McLain Smith, explores how we each can do our part to bridge the fissures in our fractured society.