House Joint Resolution No. 2

Right to Vote

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  • Jan 14 – Passed the House of Delegates: HD60 Wyatt – N     HD69 Downey – Y     HD70 Simonds – Y     HD71 Anderson – Y     HD86   Thornton – Y     HD87   Ward – Y
  • Jan 16 – Passed the Senate: SD23 Locke – Y      SD24 Diggs – N      SD26 McDougal – N

Click on the picture to open the document as posted on the Virginia Legislative Information System.  (Note: the document as posted is in markup to show the changes to the current text).  On this page look for underlined blue text like “Click on the picture” in the previous sentence.  Those are links to source websites.

Summary As Introduced

Qualifications of voters; right to vote; persons not entitled to vote. 

  • Establishes voting as a fundamental right for all Virginians who meet constitutional voter qualifications.(The proposed amendment contains the qualifications to vote – click on the thumbnail to read)
  • Prohibits laws that abridge the right to vote, with limited exceptions.Denies voting entitlement to individuals convicted of a felony only during incarceration.
    • Automatically restores voting and all political rights upon release from incarceration, with no additional action required.
    • Eliminates the current requirement that the Governor or another authority restore civil rights after a felony conviction.
  • Denies voting rights to individuals adjudicated by a court as lacking the capacity to understand the act voting during the period of incapacity.
    • Restores voting rights once a person’s capacity is legally reestablished.
    • Replaces the current standard of “mental incompetence” with a “capacity-to-understand-voting” standard.

What’s On This Page?

  1. Observations
  2. Comparison table – current law and proposed amendment
  3. Discussion Points
  4. Key questions for voters

Observations

  • The sole requirement for restoration of voting and all political rights is “upon release from incarceration.”
  • The individual released from incarceration and on probation is still serving a portion of the sentence until the probationary period is over.
  •  Individuals will also get voting rights back if they owe money, including: fines, fees, costs, or restitution.
  • Voting is self-explanatory.  But what are “political rights”? 
    • Hard to find in the Constitution or Code
    • Can generally be defined to include: jury duty, holding public office, and becoming a Notary Public.

Comparison Between Current Virginia Law and the Proposed Amendment

 

Legal basis    Current: : Voting qualification rules are in Article II of the Virginia Constitution and in statute. Under current law, a person with a felony conviction loses the qualification to vote and remains disenfranchised unless civil rights are restored by the governor or other appropriate authority. (Constitution of Virginia)    Proposed: Amendment would modify Article II of the Virginia Constitution to make the right to vote “fundamental” and specify that voting rights are automatically restored upon release from incarceration (not necessarily the entire sentence), with no need for gubernatorial or other restoration. (Proposed Amendment)
 
Felony disenfranchisement    Current: A person convicted of a felony is disqualified from voting indefinitely until civil rights (including the right to vote) are restored by the governor or appropriate authority.  (Constitution of Virginia)    Proposed: A person with a felony conviction would not be entitled to vote only while incarcerated, and upon release from incarceration all political rights (including the right to vote) would be automatically restored without further action. (Proposed Amendment)
Mental incapacity provision    Current: Currently, if someone is adjudicated “mentally incompetent,” they are not qualified to vote until competency is reestablished. (Constitution of Virginia)       Proposed: The amendment clarifies that a person adjudicated by a court to lack the capacity to understand the act of voting cannot vote during that period but can regain the right once capacity is restored as prescribed by law. (Proposed Amendment)
Governor’s role    Current: The governor has discretion to restore civil rights (including voting) to individuals with felony convictions on a case-by-case basis. (Constitution of Virginia)    Proposed: The constitutional amendment removes gubernatorial discretion for restoring voting rights for people who have completed incarceration — making it automatic upon release. (Proposed Amendment)
Automatic restoration    Current: Not automatic. A person must seek restoration of civil rights from the governor or authority after completing their sentence. (Constitution of Virginia)    Proposed: Yes, automatic upon release from incarceration — no petition or approval needed. (Proposed Amendment)
Broader scope of right to vote    Current: Voting is recognized as a qualification, but the Constitution doesn’t explicitly call it a fundamental right that cannot be restricted except in specified circumstances. (Constitution of Virginia)    Proposed: Every person who meets constitutional qualifications has a fundamental right to vote and that this right shall not be restricted by law except as explicitly stated (e.g., during incarceration). (Proposed Amendment)

Discussion Points

  • Fundamental right: Virginia does not publish a general definition like a dictionary entry. Instead, the term appears within specific constitutional provisions or court interpretations. Virginia courts treat certain rights as fundamental because they appear in the Virginia Bill of Rights (Article I). When Virginia labels something a fundamental right, it means:
    • The right receives the highest level of legal protection.
    • The government may not deny, burden, or infringe it unless:
      • There is a compelling state interest, and
      • The restriction uses the least restrictive means.
  • Qualification vs fundamental right: This is a structural change to the constitution. “Every person who meets these qualifications shall have the fundamental right to vote in the Commonwealth…”
    • It redefines the constitutional status of voting from a permitted activity contingent on meeting criteria (qualifications) to an affirmative constitutional guarantee once those criteria are met (with explicit, narrow exceptions). (Current Constitution, proposed amendment)
    • This kind of rewriting affects how the courts interpret election laws and challenges to them going forward.
  • Qualification vs. entitlement.  Under the amendment: “No person who has been convicted of a felony shall be entitled to vote…” (italics are added words)
    •  Incarceration removes entitlement to vote.
    • This matters legally because other election roles, such as Officer of Election, rely on “qualified voter” status, not voting entitlement.

Key Questions for Voters

  • Does the amendment clearly define which rights are restored (e.g., political rights), and does it align with broader principles of equal civil participation?
 
  • How does labeling voting a fundamental right effect how courts will interpret future election laws? Does this raise the bar on how easily election regulations can be changed?
 

  • Should persons released from incarceration be also required to complete their entire sentence (e.g. probation, restitution, etc.) before voting rights are restored?

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