Virginia is still ignoring an 1870 law designed to protect the black vote

​Virginia, you’ve come a long way, baby. And yet… Something happened in a federal courtroom last week that most Virginians probably missed.  U.S. District Judge John Gibney told Virginia — again — that it is not properly following a federal voting-rights law enacted in 1870.

Yes. 1870.

And this is not simply a disagreement over some obscure old statute.

The judge says Virginia’s interpretation of his earlier ruling may have kept hundreds of thousands of Virginians who should have been eligible to vote from participating in this month’s primary.

So how in the world did we get here?

Earlier this year, Judge Gibney ruled that Virginia had been violating an 1870 federal law intended to protect the voting rights of formerly enslaved people. In his words, the Commonwealth had disobeyed that law for “well over a century.”

He ordered Virginia to stop automatically denying voting rights to people whose convictions fall outside a limited group of felonies recognized under common law in 1870.

Virginia then identified 284 modern crimes that it argued were connected to those original offenses and could therefore still result in disenfranchisement.

Last week, Judge Gibney essentially said:

No. That is not what I told you.

And this is where the history becomes important.

Because it is easy to hear “felony disenfranchisement” and think:

They committed a crime. They lost the right to vote. So what?

Except America’s criminal justice system did not develop in a racial vacuum.

After slavery was abolished, the 13th Amendment left an exception permitting involuntary servitude as punishment for a crime.

Southern states soon enacted Black Codes that criminalized behaviors such as vagrancy, loitering, violating curfews and failing to have employment.

Newly freed Black people could be arrested, convicted and forced back into labor.

They were leased to mines, railroads, farms and private companies. Others were placed on chain gangs and prison farms.

These systems of convict leasing, peonage and forced penal labor persisted in various forms into the World War II era.

So after losing the legal ability to own Black people, parts of the South developed another mechanism:

Criminalize them.
Incarcerate them.
Take their labor.
And take their vote.

These systems of convict leasing, peonage and forced penal labor persisted in various forms until 1945.

When Congress readmitted Virginia to the Union in 1870, Black men had only recently gained the right to vote. Congress specifically restricted Virginia’s ability to create additional crimes and then use those convictions to disenfranchise its citizens.

Congress understood the danger.

Turns out, Congress knew its audience.

And while we are no longer living under Black Codes or convict leasing, the racial disparities within the criminal justice system did not magically disappear with Jim Crow.

That does not mean every conviction is unjust.

It does mean we cannot discuss felony disenfranchisement as though the words crime, race and voting rights have no historical relationship in America.

Which brings us right back to last week.

One hundred fifty-six years after Congress imposed a safeguard because it feared Virginia would use criminal law to undermine the voting rights of newly freed Black citizens, a federal judge in Richmond is still having to enforce it.

Virginia is certainly not the Virginia of 1870.

We have made extraordinary progress.

Virginia, you’ve come a long way, baby.

But history has a wicked sense of humor.

Sometimes it doesn’t stay neatly tucked away in museums, textbooks and old photographs.

Sometimes it walks into federal court in 2026, clears its throat and says:

“Virginia. We discussed this in 1870.”

And yet.

And if you think this is the only old law or policy designed to restrict the rights of African Americans that still has consequences today, you might be surprised.

There are more.

Perhaps we should talk about those, too.

Frankly speaking, 
Adrienne P. Whitaker