Virginia voters will decide this election whether to adopt a state constitutional amendment that would enshrine voting as a fundamental right.
The ballot question is in three parts: “Should the Constitution of Virginia be amended (i) to provide for the fundamental right to vote in the Commonwealth, (ii) to revise the qualifications of voters so that a person convicted of a felony is not entitled to vote during his period of incarceration but is automatically invested with the right to vote upon release from incarceration, and (iii) to update the existing prohibition on voting by persons found to be mentally incompetent to instead apply to persons who have been found to lack the capacity to understand the act of voting?”
The part that would automatically restore the right to vote for people convicted of felonies upon their release from incarceration is perhaps the best advertised. But members of the disability community say requiring an extra step before taking away the right to vote for people who have been found by a judge to be mentally incompetent is an important righting of past wrongs, too.
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The amendment, if adopted, would require judges who determine that people who are placed under a guardianship are also deemed unable to understand what voting means before that right is taken away.
In Virginia, to amend the constitution, the legislature must first pass a resolution two years in a row before it’s decided by voters. Mamie Locke, D-Hampton, carried the resolution in the state Senate and said it had been a long time coming to get the change on the ballot.
“The whole purpose and point behind working on this amendment is to get rid of something that was put into the 1902 constitution and remained in the constitution even after it was rewritten in the early 1970s as a way to suppress votes,” Locke said.
That voting suppression, Locke said, includes disenfranchisement for felons — Virginia is the only state that permanently bars people convicted of felonies from voting, except at the discretion of the governor. It also included suppression of votes for people with disabilities.
“Initially, all versions of this amendment would only deal with whether or not we wanted to eliminate the felony disenfranchisement part — you know, do we do nonviolent felons, do we do all felons, what is the issue,” Locke said. “And then in 2019, we did a complete look at what the 1902 constitution said and made the decision that we need to remove all vestiges of Jim Crow from the Virginia Constitution.”
One of those vestiges, Locke said, was a section that precluded “idiots, insane persons, and paupers” from registering to vote.
“Even though Virginia went through a process of changing the language from ‘idiots and insane persons’ and all of that, it still just changed the language to say that persons adjudicated to be mentally competent could not vote,” Locke said. “We need to simply get rid of everything that came through that 1902 constitution, and you can’t pretty it up.”
Virginia’s code already takes this step, thanks to a law passed by the General Assembly this year. People who were assigned a guardianship prior to July 1 of this year can petition the court to restore their right to vote. Disability advocates say it’s worth enshrining in the state constitution, thereby becoming much harder to change.
“I think that’s really the good reason for this, is making sure that the question of guardianship is very clear, that it is not an automatic reason that you wouldn’t be able to vote,” said Tonya Milling, executive director of The Arc of Virginia, a statewide disability advocacy organization. “Unless a judge or court can show otherwise, then you’re able to keep the right to have your voice heard and counted.”
The amendment would also reflect a changing societal attitude toward people with disabilities.
“Over some generations, there’s been a better understanding of decision-making by people with disabilities,” said Colleen Miller, executive director of the disAbility Law Center of Virginia. “I would say several generations ago, the assumption was that if you have a disability that you’re therefore limited in all of your choices … just sort of a very paternalistic attitude about people with disabilities.”
Advocates like Miller say people are confused about the idea of variable capacity, where somebody can have the ability to decide some things in their lives but not others.
“The fact that you can’t make decisions about complicated medical treatments or maybe can’t make decisions about how to spend your money doesn’t mean you can’t make any decisions at all,” Miller said.
Locke said the voting rights question is an intersectional issue.
“I just think it’s important for people to understand that the 1902 constitution put folks with disabilities in the same category that they put Black people and poor people, all in an effort to suppress the vote,” she said. “Our purpose here is to remove all vestiges of that, to ensure that anyone who has the ability to vote, the right to vote, can have that right restored in a manner that brings them dignity.”
Election Day is Nov. 3.
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