Just in case you had any doubt about his intentions in declaring April to be Confederate History Month, Virginia Governor Bob McDonnell took a second giant step back in time this week. Not only is the Confederacy to be celebrated in Virginia, but its Jim Crow legacy is making a comeback too.
Governor McDonnell plans to require everyone seeking to have their voting rights restored following a non-violent conviction to write an essay outlining their contributions to society and the “reasons why you believe the restoration of your civil rights is justified.” Applicants are thus asked to provide evidence that may – or may not – be evaluated under a completely arbitrary and ever shifting paradigm. In other words, prove the unprovable.
Virginia is one of only two states remaining (Kentucky is the other) that deny the right to vote for life to everyone with a criminal conviction, unless the individual applies for, and is granted, clemency from the governor. Virginia would also be the only state in 2010 to require a written essay.
The roots of Virginia’s criminal disenfranchisement law are firmly planted in Jim Crow. During the Virginia Constitutional Convention of 1901-02, delegate Carter Glass (later a prominent U.S. Senator) described the criminal disenfranchisement provision as part of a plan to “eliminate the darkey as a political factor in this state in less than 5 years, so that in no single county…will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”
The law certainly has had its intended effect. More than 300,000 people have lost the right to vote for life in Virginia. One in five African-Americans, and one in four African-American men, is permanently disenfranchised in the Commonwealth. African Americans make up one fifth of Virginia’s population, but over half of those denied the right to vote are African-American.
The application to get one’s right to vote back has always been onerous in Virginia, and the number of people “approved” each year is tiny. Former Governor Tim Kaine approved the most applications in history, a whopping total that amounted to less than 2 percent of the disenfranchised population.
But McDonnell’s newest requirement is not just another box to check in a bureaucratic process. It introduces an entirely arbitrary and subjective standard that allows the most powerful elected official in the state to play fast and loose with one of America’s most fundamental rights. This essay exam is no different than the arbitrary, unpassable tests that politicians and government officials employed for decades after Reconstruction to keep African-Americans from voting. And it is no different than the notorious literacy tests employed during the same period. If you can’t read, you can’t write. All of these nefarious tricks were outlawed by Congress with the Voting Rights Act of 1965.
Another piece of federal legislation, the Democracy Restoration Act, is now pending before Congress. That bill would restore the right to vote in federal elections to every American citizen who is out of prison, living in the community.
According to the Washington Post, McDonnell’s administration said the new essay requirement is designed to “put a human face on each applicant.” The thing is, each applicant already has a human face. Each one is a person. Each one is an American. Each one is a Virginian. The Confederacy lost the battle to deny the rights of citizenship to African-Americans. No celebration of Confederate History Month, and no imaginary time machine, can change that.
Erika L. Wood is Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.