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.