What Defines a Virginia Voter? Amendment Would Expand Voting Rights

The results will bypass voting machines to confirm the results of the election.

By Megan Schiffres

December 26, 2020

The General Assembly will consider another constitutional amendment on voting rights when they meet in January.

RICHMOND-The General Assembly will consider a constitutional amendment to expand voting rights in Virginia when it meets next month. Under the amendment, the voting rights for people with felony convictions and ‘mentally incompetent’ people will be restored.

If passed, people would only need to be a citizen of the United States, at least 18 years old, and a resident of the Commonwealth in order to vote in Virginia. 

The amendment’s sponsor is Sen. Maime Locke (D-Hampton), who said through a spokesman she did not wish to comment on it. 

Representatives of several voting rights organizations already support the proposed amendment. These organizations include the Advancement Project, the Lawyers Committee for Civil Rights Under Law, and the League of Women Voters 

“Generally we think this bill would go on to do some really important things for the state. Especially for the Black population of Virginia,” said Ajay Saini, counsel for the Lawyer’s Committee for Civil Rights Under Law. “From our perspective, this is a really important racial justice issue that should be addressed by the legislature.” 

The Rights of People With Felony Convictions

According to the Advancement Project, in 2016 Virginia disenfranchised 7.8% of its population by banning people with felony convictions from voting. That year, Virginia took the right to vote from 21.9% of the African American population. 

Virginia incarcerated 29,336 people in 2019 and had 69,626 under supervision. In 2017, Virginia’s incarceration rate per 100,000 people was higher than the national average by almost 70 people. 

In the Commonwealth, anyone with felony convictions automatically loses their civil rights. The rights they lose include the right to vote. They also lose the right to serve on a jury or run for office. People with felony convictions can not become a notary public or carry a firearm in Virginia. Only the governor himself can restore these rights, not including the right to carry a firearm. 

Virginia is one of only 11 states that disenfranchises people with felony convictions after they have completed their sentence. 

“The fact that this language still exists in Virginia makes it quite unique amongst states. For requiring people with felony convictions to jump through these hoops,” said Saini.

RELATED: Northam Announces He’s Restored Voting Rights to Over 22,000 Former Felons

Voting Rights During the Jim Crow Era

Legislation barring people with felony convictions from voting has its roots in racism. During the Jim Crow era, these restrictions became enshrined in state constitutions throughout the South.

Then and now, people of color face incarceration at disproportionate rates. So, these laws disenfranchise minority voters. 

In 1902, the legislature revised the Constitution of Virginia. That year it added several amendments which further restricted the voting rights of minorities. These restrictions included literacy tests, the creation of poll watchers, and poll taxes. It also barred people with felony convictions from voting. 

“Carter Glass at this Constitutional Convention explicitly told the audience as they were considering adopting this disenfranchisement law that it will eliminate Black Virginians as a political factor in the state in less than 5 years. That was what front of mind for them at the time. And huge portions of the population of Black Virginians afterwards indeed were disenfranchised as a result of this law.

“There’s a direct racist intent that was buried in the foundation of Virginia’s disenfranchisement law,” said Jess Unger, staff attorney for the Advancement Project. 

With the exception of poll taxes and literacy tests, these restrictions remain on the books in Virginia’s constitution. According to Executive Director of the American Civil Liberties Union (ACLU) of Virginia Claire Gastañaga, the restoration of rights to people with felony convictions is a racial justice issue. 

“We see this as one of the most important racial justice initiatives certainly currently pending,” Gastañaga said. 

‘Mentally Incompetent’ People‘s Rights

Who qualifies as ‘mentally incompetent’ isn’t specified under Virginia law. The term only appears in the section of the Constitution that Locke proposes to strike.

However, the Virginia Code does define an “incapacity”. The Code defines it as an adult incapable of receiving information, incapable of meeting the essential requirements of their health, and incapable of managing their financial, property, or legal affairs. However, what qualifies as incapable is open to interpretation. 

“Given the vagueness of the definition, there is not fixed set of conditions or diagnostic criteria that make someone incapacitated by default,” said guardianship lawyer Neal Walters. 

‘An Extreme Deprivation of Somebody’s Rights’

Most people who a judge declares ‘mentally incompetent’ in Virginia receive a guardian. People with full guardians have even less civil rights than people with felony convictions. 

“You lose all your civil rights. You can’t marry, you can’t vote, you can’t sign agreements,” said forensic clinical psychologist and lecturer at the University of Virginia’s Institute of Law, Psychiatry, and Public Policy Sara Boyd. “It’s an extreme deprivation of somebody’s rights.”

According to Boyd, people with guardians also typically lose the right to make their own financial and medical decisions. In most states, they also lose the right to pursue employment and apply for government benefits. 

Guardianships happen when a court appoints someone to supervise another person’s life and choices. Their purpose is to ensure people with disabilities receive care and protection. The most common form of guardianships in the U.S. are full guardianships, but partial options are available. 

According to the AARP, 1.3 million adults are under guardianship in the U.S. 

Abuses of Power

Judges typically appoint family members to serve as guardians. However, the court can pick anyone to take over another’s every responsibility and right. According to experts, there is insufficient oversight of guardians, who frequently abuse their power over their wards. 

A 2010 study by the U.S. Government Accountability Office found hundreds of allegations of physical abuse, neglect, and financial exploitation over two decades. 

In Virginia, the only training guardians receive is a 12 hour course every 2-3 years. Guardians only have to file one report every year on the health and status of their ward.

“As to what review these forms are given after submission, I have no idea. My personal belief is that in most jurisdictions the review of the report  is nonexistent or perfunctory at best. Actual oversight is also nonexistent until a problem arises,” Walters said. 

It Could Happen to You

You might assume these guardianships are for people with incurable, chronic, and progressive conditions like dementia and Alzheimers. But you’d be wrong. Due to the vague wording of its definition, many people who most would consider competent have their rights taken away. 

Lots and lots of people who are really impaired and probably your average layperson would say, ‘oh this person definitely has to have a guardianship’ who did not have guardians. And other people who have relatively better adaptive functioning, had been able to make a lot of decisions and function pretty independently in their lives, still ended up with a guardian,” said Boyd. 

People with severe mental health conditions can also have their civil rights taken away.

According to Boyd, is it shockingly easy to place someone under guardianship in Virginia. Because of a lack of accommodation for people’s mental or physical disabilities, they often don’t have the chance to object. 

“In Virginia, to have a guardian appointed for you is not that hard. It’s not nearly as hard as it should be. Basically people can file a petition for guardianship and then you can choose to dispute it. So if you don’t understand what’s happening, you’re not going to be in a very good position to dispute it. Or to know how to go about disputing it,” Boyd said. “I’ve spoken to people where they didn’t even know that they have guardians. They didn’t even know what they had lost in terms of their decision making.” 

If someone does not contest a petition for guardianship within 60 days, they will lose all their civil rights. At no point in the guardianship appointment process does it require permission from the person losing their rights. 

“They often don’t know what their due process rights are. And they’re frequently overlooked and they’re treated as, their participation is treated as optional and not very important,” said Boyd. 

My Orthopedist Says I’m Incompetent

The requirements to show someone is ‘mentally incompetent’ in Virginia is also dangerously lax. 

Under Virginia Code, petitioners only have to file a report with the court to get approval for their guardianship. These reports include information about what the petitioner thinks the condition of their potential ward is. 

However, approval from psychologists and other mental health professionals is not necessary for approval of the petition. Under the Code, any licensed physician or licensed professional skilled in the assessment and treatment of physical or mental conditions, can sign off on taking away someone’s fundamental rights.

“Because of the way the law is written in a lot of states, you can have an orthopedist do this evaluation. Even though that is not their area of specialization. And lots of states have written their laws this way. So that basically anybody with a medical degree or a degree in psychology can do an evaluation and sign off on it. But they may not actually be very well positioned in terms of training and experience to assess these things,” Boyd said. 

These reports do not require an actual diagnosis with a mental or physical illness. Instead, an evaluation is the only documentation the court requires. 

Although an appeals process exists, Boyd said she has never heard of a case of someone regaining their rights after a judge rules them ‘mentally incompetent.’

“I’ve never known anybody who’s actually succeeded at it. But supposedly you can. I’ve not seen people succeed with it,” said Boyd. 

The Sexist and Racist History of the Mentally Incompetent Label 

Changes to the Constitution of Virginia in 1902 not only prevented people with felony convictions from voting. They also also added language to excluding ‘idiots and insane persons’ from voting. 

People of color were disproportionately labeled as ‘idiots and insane persons.’ Women too faced unfair persecution under this law.  

“In Virginia we had all these people that people labeled feeble-minded or imbeciles or whatever. And it wasn’t just about somebody’s intellectual ability or having what we would today consider a disability. They also counted what they called moral imbecility which can include being a woman who has a child when she’s unmarried. So there were lots and lots of women who were institutionalized for reasons that had nothing to do with actual disability. But they were still characterized as feeble-minded. They were sterilized. And then the part of it that a lot of people don’t talk about is, what they did is they essentially trafficked these women to work in the homes of wealthy people in Virginia,” said Boyd. 

The current language of the Constitution of Virginia went into effect in 1970. However, many of the most horrifying remnants of its original purpose remain. 

According to Boyd, forced sterilization of people with guardianships in the Commonwealth continues to this day. 

“They can also put you on a medication that effectively sterilizes you as long as you take it. So you don’t have a choice with birth control,” Boyd said. 

Voting Rights Will Have to Wait

The process of enshrining this amendment into the Constitution of Virginia is a long one. It starts with passing by both houses of the General Assembly. Then, the amendment needs approval by a second session of the General Assembly. This approval must occur after the House of Delegates has an election. If the legislature still approves, the amendment becomes part of the ballot in 2022. Voters across the Commonwealth then affirm or deny the amendment. Only after it receives affirmation can the amendment take effect. 

Getting Voting Rights Restored

Contact the Secretary of the Commonwealth by calling (804) 692-0104 . You can also visit their website https://www.restore.virginia.gov/ to file a petition for the restoration of your rights. 

Are you or someone you know under guardianship and need legal help? Contact DisAbility Law Virginia. They are the designated disability Protection and Advocacy organization for the Commonwealth of Virginia

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