RICH MEAGHER: The last of our amendment panels will discuss Ballot Question 3, a proposed amendment to the Constitution of Virginia that concerns what its sponsors say is "the fundamental right to vote in the commonwealth."

Joining us is Dean Mirshahi, Reporter for VPM News, and Henry L. Chambers Jr., Hank Chambers, the Oliver Hill Faculty Research Scholar and Professor of Law at the University of Richmond.

Please join me in welcoming our panel.

(audience applauding) So Dean, let's start here, right?

This amendment concerns a process that can get a little bit complicated with rights restoration.

Who are we talking about with this amendment?

What kind of folks and their rights are involved and what is the amendment trying to change?

DEAN MIRSHAHI: Yeah, so it is a complicated process.

Virginia's constitution says that if you are convicted of a felony, you lose your right to vote, run for public office or be on a jury.

And the only way you can get these rights back is if the governor allows you to have them.

So you have to petition the governor in order to get these rights back.

This amendment would make that process automatic, taking it completely out of the governor's hands.

It does a couple other things.

The question itself has a couple of questions in it.

You know, we all remember that from school, one question with a bunch of questions in it.

So there are other things that are involved in that, but the main crux of it is making that process for people with felony convictions automatic once they're released from prison.

RICH MEAGHER: Yeah, and we should point out just as a technical matter, right?

This amendment concerns the right to vote, but these other rights you talked about are contingent on the right to vote.

So it is the right to be a juror, the right to be elected to office and a notary public, the right to be a notary as well.

DEAN MIRSHAHI: Yes.

MEAGHER: And so those are contingent on the right to vote.

So you lose the right to vote, you lose these other rights as well.

So this would make that restoration automatic.

So Hank, this amendment wants to change a process that seems pretty different from the way it's done in other states.

Why do we do it this way currently?

HENRY CHAMBERS: Well, we do it this way 'cause by God we're Virginia.

(audience laughing) And it doesn't matter what everyone else does.

We're just a little different in that way 'cause we're just a little closer to God.

No, seriously, historically in Virginia, we've looked at the right to vote as really being a privilege.

So historically there's always been a desire to pull people toward the right to vote as opposed to simply giving it to them and providing it to them and treating the right to vote as though it's lodged in the people of the commonwealth.

So if you start with a notion that you only get the right to vote if it's affirmatively provided to you, then you also get the notion that it can be taken away from you or limited to you for various different reasons.

So historically, that's how we've done it.

So when we think about the notion of restoring rights, you can only restore rights if you've taken them away.

And there are a number of jurisdictions that never take the right to vote away from folks regardless of what crime they may have been convicted of committing.

So in Vermont, in Maine, in Washington, DC, you don't lose your right to vote just because you have committed a criminal violation or a felony.

There are other states where you may lose the right to vote while you're incarcerated, and there's some states where you lose the right to vote if you are under the regulation of the penal system, so if you're on probation or parole.

But in Virginia, our take has been automatic.

We take your right to vote away, and you don't get it back until the governor says, "Yes, you shall have the right to vote."

As though we are in, well, I'll leave that to the side.

Until the governor says, "You have the right to vote."

Then you can get your right to vote back.

RICH MEAGHER: Right, and so this is a kind of individual appeal process, but that process got changed a little bit or accelerated over the last decade or so based on who was in office.

Is that right?

HENRY CHAMBERS: That is exactly right.

It has been, and I'll use a technical legal term here, bonkers in terms of how we decide who gets their right returned or not.

There were a number of democratic governors who thought that the right to vote should be restored, but they were reluctant to do so.

Some might say because they were worried about their future electoral prospects.

Then you had folks like Governor McDonald, decidedly not a Democrat who thought, well, maybe we ought to provide some additional rights to restore some rights, thinking about redemption and issues along those lines in terms of religious thoughts, things along those lines.

Then you got folks like Governor McAuliffe who said why not?

Let's go ahead and do it all.

And I'm gonna do it with an auto pen, essentially.

I am going to automatically provide the restoration of rights.

Virginia Supreme Court said, "No, you can't do that.

You've gotta sign them on your own."

You've gotta use your mind to think about whether you actually wanna provide the ability for folks to get their rights back.

So that occurred.

Then you had a couple of additional governors who went back and forth in terms of whether they wanted to restore rights or not.

But at the end of the day, the Virginia Constitution always provided for a restoration of rights by the governor through the governor's discretion.

And that's the piece of the puzzle that's being challenged here.

RICH MEAGHER: So we can get to that idea of discretion shortly, but the argument for this amendment has always seemed fairly clear to me, which is this idea that's argued, I think in other states, that once people have done their time, right, they've paid their debt, they should return to full life, right.

And their rights should be restored.

But there are some folks who do oppose this amendment.

Dean, what are some of the arguments they're making against voting "Yes" here?

DEAN MIRSHAHI: Yeah, so some of the opponents, people who spoke with Jahd for that wonderful Amending piece, they talked about having issues or concerns about people who have broken the law, who are now being allowed to elect lawmakers.

There's also been questions and concerns about, because this amendment makes it automatic once you're released from prison, there's no requirement to pay any kind of restitution or fees or fines.

There have been people who have said that would actually kind of limit how, you know, victims are, you know, able to get restitution.

And there's been concerns about whether or not, you know, that is something that could move forward, and that is something that is in this amendment.

It would remove that - any kind of other barrier for that process.

And supporters of this amendment have said, you know, essentially that is just creating another barrier for people who may not be able to pay and who have kind of compared it to - akin to a poll tax in a way.

RICH MEAGHER: Yeah, so if someone is being asked as part of their sentence to make restitution, and this does happen in criminal cases, but they're unable to pay, then they haven't paid their debt, right?

But this amendment would presumably allow those folks still to gain back their right to vote.

DEAN MIRSHAHI: Yes, and to go into what Hank was saying about the discretion of the governor, the previous governor, Governor Youngkin, made sure that people were paying and they had to verify that they've paid their fees and fines.

The current governor, Governor Abigail Spanberger, this has expanded in her time.

She has gotten rid of that question on her application, on the application for a restoration of rights in that process now.

RICH MEAGHER: Now, Hank, you used that technical term earlier, "bonkers".

And one of the reasons why this amendment is so complicated is that it is happening in the context of active legal decisions, right, that have been issued, and court cases that are occurring like right now that are changing the things on the ground, right, that are changing the nature of this process, particularly in terms of what kinds of felonies bring someone into the purview of this rights issue.

What's going on with all these court cases?

HENRY CHAMBERS: Sure thing.

What's going on with all these court cases?

That's like saying, "Hey, law professor, just go nuts."

So here we go.

We'll simplify it to a degree.

You're right that it seems messy, but let's step back just a little bit and unmessify it.

We go back to the 14th Amendment.

14th Amendment, ratified 1868 after the Civil War, there was a discussion that suggested that the right to vote would be provided to essentially African American men.

I mean, it wasn't that specific, but essentially African American men, but that if the right to vote was denied because of criminal behavior or for criminal punishment, then we're not gonna treat that as being discriminatory.

So that's embedded in the 14th Amendment.

In the 15th Amendment, ratified 1870, it says you can't limit the right to vote based on race, previous condition of servitude.

Race, color or previous condition of servitude.

So you add those two things together.

Well, Virginia in 1870 needed to get back into the union.

I mean, we had said we were leaving, and then we fought a war and we lost it.

I know, spoiler.

We lost the war.

We had to get back into regular relations with the rest of the union.

So there's the 1870 Readmission Act.

The 1870 Readmission Act says, look, you can disfranchise people, but only for crimes that are felonies at common law.

In other words, don't go around making up a bunch of crimes that you're only gonna apply to Black folks and then disfranchise them saying, "Hey, we're allowed to disfranchise people based on criminal violations."

No, you can only do it on the basis of these particular felonies.

That's what the 1870 Readmission Act said.

Let's just say Virginia and the courts simply ignored that until some folks in 2023 filed suit and said, "Well, hold on a second.

This Readmission Act still exists, so it shouldn't be the case that you can disfranchise anybody who committed a felony.

It should only be that you can disfranchise people who committed felonies that were felonies at common law in 1870."

And Judge Gibney said, local federal judge said, "Yeah, that's right."

So now the question is which felonies qualify as felonies for which Virginia can disqualify people for voting?

And that list has been whittled down to just a few.

So we could walk through that a little bit more, but we'll leave it at that.

So the whittling down is such that under law, as Judge Gibney has noted, the current constitutional language should not be deemed to be operative because there are various felonies that are not considered or were not considered felonies of common law in 1870 for which Virginia has said you cannot vote.

Well, Judge Gibney says that's not right.

You don't lose your right to vote if you have committed X felony that wasn't a felony back then.

So there's a lot of crazy going on.

And if you wanna see that crazy, go to the Department of Elections page where they lay some of that out, and you realize that there are a lot of people who are ex-offenders who had their rights taken away, but who automatically have gotten them back now, because they never should have had their rights taken away.

But that is creating a crazy quilt that folks are gonna have to navigate as they go through the process of becoming voters again in the 2026 elections.

RICH MEAGHER:: Yeah, Dean, I think VPM reporters, maybe even yourself included, right, have been reporting on these voters trying to come back online over the last couple of years to be part of the electorate.

And that has been a messy process, right?

DEAN MIRSHAHI: Yeah, we've been following this case for some time now.

As Hank was saying, Judge Gibney actually ruled that, "Virginia, no, you've actually been breaking the law for over a century now, and that you need to only disenfranchise someone for 11 crimes."

I mean, you can only disenfranchise someone for 11 crimes.

There was a lot of back and forth.

The plaintiffs and defendants and the state went, kind of, "What crimes apply, what modern day crimes apply, how long can the list be?"

The AG's office, AG Jay Jones's office said that potentially up to 284 modern day crimes could apply.

And then that led Judge Gibney to say, "Well, no, I said 11, and that's it."

So after that point, a new order came, and in the process of dealing with that, the AG's office concluded that it's not even 11.

There's only three now.

It's murder, involuntary manslaughter and manslaughter that can disenfranchise someone from voting.

That is on the webpage that Hank was mentioning, that kind of confusing language.

So that's where we are at the moment.

HENRY CHAMBERS: Let me throw in this piece of the puzzle.

The 11 common law felonies are arson, burglary, escape and rescue from a prison or jail, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy, and suicide.

What you see on those lists is that those are general descriptions of crimes.

And the question is, are the crimes that we have on the books in Virginia precisely the same as those crimes as generally conceived of?

And what the AG's office was doing the first time with their 284 is they were saying we're gonna take every crime that kind of sort of seems like one of those 11.

And if it kind of sort of seems like one of those 11, it's covered.

And they got to about to 284.

Well, when Judge Gibney said, "Come on, I said 11, I meant 11.

"11 is less than 284."

Then the AG's office I think said, "Fine."

We're gonna look at what crimes we have today that are precisely the same as one of the 11 crimes from before.

And they said, "Eh, we only have three.

We have murder.

We have involuntary manslaughter.

We have voluntary manslaughter.

Peace."

AUDIENCE MEMBER: (inaudible) I'm sorry.

No, no, questions from the audience are perfectly legitimate, because I'm also a criminal law professor.

The notion is that the specific elements of rape in 1870 are different than the specific elements of rape today.

So it looks slightly different.

And the AG's office said, "Well, look, if it's slightly different, given that Judge Gibney already yelled at us once in print, we're gonna go in a different direction and say is it precisely the same as at common law?"

And the answer is it's not.

If you go back and look at what rape was defined as at common law, you look at it and go oh, that's weird.

It's got some elements in it that are really weird.

And we have different elements, slightly different elements now, and it's that slight difference that has led the AG's office to say yeah, only three.

MEAGHER: So what happens if the amendment passes, right?

So it seems like when this amendment even was introduced two years ago, that there was a wider effect expected than what there might be today.

Dean, I'll start with you on that.

And so who is affected?

How many people do we even know what this will actually do if it's passed?

DEAN MIRSHAHI: Well, it would essentially make that process, again, automatic.

And while the numbers are really kind of unclear at this point, I saw a 2024 estimate that says 260,000 people don't have their right to vote because of a felony in Virginia.

Now that I'm sure is updated since, now that not every, any felony kind of strips your right to vote, only three.

So there's still kind of a lot of questions in terms of the actual number, but making that process automatic, making it so once they're released from prison, they don't have to go to the governor, don't have to apply in any kind of way, they automatically get their voting rights back.

RICH MEAGHER: Now there is a provision that we haven't talked about because we want to complicate this even further about incapacitated voters.

Dean, what's that language about?

DEAN MIRSHAHI: Yeah, so there's also a part, the amendment also asks if Virginia should update kind of outdated language about people who are incapable of voting.

If a court finds that you're incapable of voting, essentially regardless of any reason, they can stop you from voting and make it, kind of, impossible unless you go back to the court and petition and ask them to give it back to you.

This would eliminate that portion of it, would update it to include essentially - if a court finds that you don't understand, I guess, the concept of voting, then you can be having your voting rights removed, and then you would have to go through the process of getting that with the court instead of it just being kind of a broad restriction on anyone who is found incapable of doing a lot of things, having voting put into that kind of bucket of what they're not allowed to do.

RICH MEAGHER: Yeah, and Hank, we had talked about this a little bit before the panel.

You have an interest in this section of the amendment language, right?

HENRY CHAMBERS: Absolutely, because I'm not sure what exactly it does.

I know what they're trying to get at, but I'm not sure how it's gonna really work out.

So right now, the notion is no person adjudicated to be mentally incompetent shall be qualified to vote until his competency has been reestablished.

So notions along the lines of if, for example, you are under guardianship or what have you, there's been a process to determine competency for various reasons.

Separate from voting, just competency for various reasons.

And we understand that.

We understand that there may well be folks who are incapacitated, et cetera.

Now it would read, "No person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting."

One, I don't know what that means.

I mean, I can give you four or five different possibilities, but I don't know exactly what that means.

But the other piece of the puzzle is when will a court engage in the process of determining whether someone has the capacity to understand the act of voting?

That is, that's not really a thing.

The mental incapacitation is a thing for other purposes, but the idea that anyone's going to convene a court just to figure out, can you understand the act of voting, that's a little surprising.

So I suspect that there's a little bit more in terms of administrative code issues that they're gonna have to figure out to figure that one out, assuming anyone really wants to have courts doing that as a very narrow specific thing.

RICH MEAGHER: So I wanted to go back to this broader question about voting rights, and put it in a little bit more context.

I mean, you hinted at this with our Virginia being closer to God, but this idea of the rights, voting rights is something that Virginia wants to kind of draw people towards, I think was the language you used for it.

How does that fit into the broader context and understanding of rights and voting rights?

Is Virginia out on its own here?

Is Virginia part of some states?

Is this part of a longstanding American tradition?

I'm just trying to get a sense here of where the original approach came from and this new approach that is trying to change the way we do rights restoration.

HENRY CHAMBERS: Yeah, no, it's a good point.

In the US, we always had a limited vision of who could vote, and it was state-by-state.

So in fact, I should clarify.

In 1776, there were some states that allowed free Black folks to vote.

And a lot of people think, well, at the beginning, only white men with property.

That's just not true.

It was state-by-state.

And depending on the state, you had free Black folks voting.

There were some states that also allowed women who otherwise qualified to vote.

Now there were property limitations, et cetera, but that was the deal.

So if you start with the concept that not every citizen gets to vote and that some non-citizens were also allowed to vote up through essentially World War I, then you have - that's the crazy quilt.

So each state is told, "You can do whatever you want."

So when Virginia says, "Well, we can do whatever we want," we simply were more restrictive than other folks, than many other states when it came to voting, in part, I think because we viewed civic obligations as being a little bit different.

We thought that only certain people should be allowed to vote because voting was so important.

Also, one of the reasons why we held onto the poll tax longer than a lot of other places.

We just had that feeling in Virginia.

So we've always been a little bit on the outlier edge, so it's not really a surprise that we still are on the outlier edge, but in the last 10 or so years, we have started to loosen up a bit and decided that we want to provide the ability to vote to folks in an easier fashion.

For example, the No-Excuse Absentee Voting that we're talking about, same sex, eh, same sex, same day registration for voting, lots of things where the legislature has said, "We want to expand people's ability to vote."

And I think this is probably of a piece.

Whether that's what people want to do, that's up to them, but at least folks are being given the opportunity to possibly change how we think about things in Virginia.

RICH MEAGHER: So I have really kind of one final question for you, and I want to phrase it particularly for both of you.

And it's not about like whether you should vote "Yes" or "No."

You know, I think it was Jahd earlier who said when he talks to normal humans, right, not as a reporter, I think probably folks who know a little bit about this stuff might have friends, family who look to us to just let us know what's going on.

So I think really what I'm looking for is if somebody comes to you and says, "Dean, please, you know something.

what should I know about this amendment before I make the decision about whether I should vote for it or not?"

DEAN MIRSHAHI: Well, a lot of people I've spoken to actually, because I do speak with a lot of folks who do come up to me, they really don't know about the process.

I mean, a lot of people don't have maybe friends or family who've been incarcerated, don't understand the process that we have to go through.

We obviously see voting as a right, we just register, and that's how it goes.

But for people who have had felony convictions and are released, there's a long process for them or it was in the past.

So this would just make it automatic.

Also, going into the amount of people who have been impacted by this, hundreds of thousands of people have lost their right to vote because of a felony conviction, that's typically what I mention.

I mention because a lot of them were like, "First of all, what are these amendments?"

And, you know, they wanna figure it out and try to understand it.

But really trying to explain to people that there is an actual process that people have to go through.

It is not automatic.

You actually have to hope and petition the governor, and maybe you will get them restored, maybe you won't.

There's been times when people haven't.

So that's typically what, like I just give a little explainer about what it is and what it means.

RICH MEAGHER: Great, and I'll ask the same question of you, Hank.

HENRY CHAMBERS: Sure, I think people need to sit down and ask themselves what do you think the right to vote is about?

What do you think citizenship is about?

And what do you think incarceration is about?

Because those things are intertwined in some ways.

What does it mean for someone to no longer be incarcerated and to walk the streets with the rest of us?

Does it mean that they are the same as the rest of us and ought to have the same rights or does it mean that they shouldn't?

I'm not telling you which way to go on that one, but that's what folks have to sit down and ask themselves.

And while asking themselves, they may wanna also talk to fellow citizens as well as fellow non-citizens and ask what's the right to vote about, and how should it be doled out?

Or should it not be doled out?

Should it be something that you get because you're a citizen and a resident of the commonwealth?

RICH MEAGHER: Hank Chambers.

Dean Mirshahi, thank you so much.

(audience applauding) (light music)