The third state constitutional amendment on the ballot for Virginia’s Nov. 3 special election proposes the automatic restoration of all political rights, including the right to vote, to people convicted of felonies upon their release from incarceration. It also narrows the definition of what qualifies as a mental incapacity to vote.
The proposed amendment includes the automatic restoration of “all political rights” to released felons.
According to Ballotpedia, the automatic restoration of political rights includes the right to serve on a jury, run for public office and, unlike Virginia’s current rights-restoration process, carry a firearm.
Currently, Virginia’s process for reinstating the civil rights of those convicted of felonies requires an individual petition to the governor through the Secretary of the Commonwealth.
After a review of the individual by various state agencies, the governor has discretion to restore civil rights, except for the right to carry a firearm. The individual must petition their local circuit court to restore firearm rights.
Mark Earley Jr., a partner at Avodah Legal and former member of the Virginia House of Delegates, R-73rd District, explained how the amendment, if passed, would affect the process of restoring rights to people convicted of felonies after their release.
“What (this amendment) would do is fundamentally change that process,” Earley said. “Voting rights for anyone who has committed a felony are automatically restored upon release from incarceration — so, not actually completing a sentence.”
Virginia’s current process necessitates a manual review of each petitioner on a case-by-case basis. According to the proposed amendment, the amendment replaces that system with an automatic investment of rights without further action by the individual.
“(The amendment) makes it automatic, so it erases a lot of ability for individual judgment. It erases the ability to distinguish between violent and nonviolent felonies,” Earley said. “Essentially it makes it from an individualized, petition-based process that, in my view, allows for judgment, allows for scrutiny … to basically a one-size-fits-all blanket process.”
According to Earley, the amendment could restore rights to felons who may not have been fully rehabilitated or paid their debt to society.
“(A felon) can be released, but still be on probation, still not have paid all (their) fines, restitutions — not have made (their) victim whole … but since you’re technically out and released, even though you’re under a lot of legal obligations, boom — you get your right to vote back,” Earley said.
The National Conference for State Legislators said that Virginia is one of 10 states that do not automatically franchise felons upon release.
“Functionally speaking, most modern governors have been very, frankly, lenient on this,” Earley said. “I would argue the process we currently have works. It functions. It also allows for individualized judgment and demonstrating rehabilitation.”
13 News Now reported that from 2012 to 2024, the governor’s office restored the rights of over 250,000 petitioners, with a notable decrease in restorations during former Gov. Glenn Youngkin’s term.
According to the Office of the Governor in Virginia, Gov. Abigail Spanberger’s administration has extended the right to vote to 100,000 Virginians who had been incarcerated.
The Virginia Scope said that former state Del. Paul Milde, R-64th District, who underwent the restoration process himself, opposed the amendment.
“I, like thousands of others … went through a lengthy deliberative process to regain my rights that started with completing my court-imposed sentence in its entirety, including paying restitution to the victims and fines. I was incentivized to be a better member of society because I knew there was a process,” Milde said.
WVTF News reported that state Del. Mike Cherry, R-74th District, spoke in support of the amendment.
“My perspective is that your constitutional rights should never be tied to a criminal behavior outcome. … Your constitutional rights should be very, very sacrosanct. They should be very hard to take away and you should get them back as quickly as possible,” Cherry said.
Further arguments concerning the amendment and full restoration statistics can be found in Ballotpedia’s entry about Question 3.
The other issue raised on the ballot for Question 3 is whether 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.”
Earley clarified that this change in definition would restrict the standard for prohibiting voting from broad mental incompetence to an express inability to understand the act of voting.
“The standard would be more narrow and hyper-specific, and basically says you have to be adjudicated to lack the capacity to understand voting specifically,” Earley said.
The proposed amendment would enshrine these entitlements and restrictions on voting and other rights in the Virginia Constitution.
“The constitutional language is always going to be the highest authority. So, it’s going to trump any statute, trump any regulation,” Earley said. “(It) is the fundamental, foundational governing language on an issue.”
The full text of the proposed amendment to Section I of Article II of the state constitution may be found on the Legislative Informational System website.
Rath is a copy editor for The Liberty Champion.