Right to Vote: Virginia

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First Continuous Legislative Body in New World

Virginia is the  home  of both the oldest continuous legislative body and the first elected assembly in the Western Hemisphere/New World: The Virginia General Assembly.
During the colonial period, the only elected officials in the state government were the members of the House of Burgesses. Two burgesses represented each county.  During the colonial period, three towns gained the right to each elect one burgess to the House: Jamestown (1684), Williamsburg (1723), and Norfolk (1738).

Evolution of Suffrage 1619-1776

• 1619 Beginning of representative government in Virginia
  • On July 30, 1619, following instructions from the Virginia Company of London, an assembly consisting of Governor George Yeardley, his four councilors, and twenty-two burgesses met “to establish one equall and uniforme kind of Government over all Virginia.”
  • For the election of the first burgesses in 1619, voting was limited to adult white men who were not indentured servants.
• 1619-1776. The franchise for free adult white men expanded and contracted during this period. At some points, all freemen could vote. But over this period, voting rights became explicitly tied  to the form and size of a freeman's landholdings/land leases.
  
  • 1699: the General Assembly excluded from suffrage non-land-owners, women, anyone under the age of twenty-one, and Catholics.
  • 1723: the General Assembly explicitly declared “no free negro, mulatto, or Indian whatsoever shall hereafter have any vote at the elections of burgesses, or any other election whatsoever.”
  • In 1736, the General Assembly added requirements that a person must own or lease certain amounts of property for a year prior to the election in order to prevent the leasing or subdividing of property to increase the number of voters.

Right to Vote by 1776

By the time of the American Revolution, Virginia had granted the right to vote solely to free white adult Protestant men who were either landowners or tenants of a certain sized property. The voter must reside in the county in which he wished to vote.

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Constitution of 1776

Virginia’s first constitution, adopted on June 29, 1776, maintained the right to vote in General Assembly elections “as exercised at present.” Thus, the franchise remained limited to free adult white Protestant males who were landowners or leaseholders of land of a certain size residing in the county in which they wished to vote.

Library of Virginia: 1776 Constitution

"The Constitution of 1776 continued without change the colonial practice of allotting each county, regardless of size or population, two members in the House of Delegates, and it created the new twenty-four-member Senate of Virginia. It authorized the General Assembly to elect the governor annually as well as judges of courts of admiralty, common law, equity, and appeal. It deliberately made the executive weak and dependent on the assembly and prohibited the governor from acting without the advice of a twelve-member Council of State that the assembly also elected. Suffrage remained as it had been under an act of 1736, limited to adult white men who owned or had a long-term lease on at least one hundred acres of land (or fifty acres and a house) in the country or who owned a lot or a part of a lot in Williamsburg or Norfolk..." https://www.lva.virginia.gov/constitutions/discover/

Virginia's 1776 Constitution encompassed a Declaration of Rights. The Declaration was a separate document from the 1776 Constitution, but it had constitutional status.

Declaration of Rights

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Constitution of 1830

The first post-Revolutionary War constitutional convention of 1829-1830, considered expanding suffrage to non-property owners. However, the Constitution of 1830 only somewhat relaxed the property qualification for suffrage by allowing adult white free men who paid taxes to vote, which enlarged the electorate moderately.

Expressly excluded from suffrage were:
(1) persons of “unsound mind”
(2) paupers
(3) non-commissioned officers, soldiers, seamen or marines, in the service of the United States
(4) persons convicted of any “infamous offence”

Constitution of 1851

The 1851 Constitution was in effect in the portion of Virginia that joined the Confederate States of America until government officials abandoned Richmond early in April 1865 and thereafter it could not be enforced.
It remained in effect in the loyal/liberated/occupied parts of Virginia that became West Virginia in 1863.
It was in effect until April 1864 in the loyal/liberated/occupied counties and cities of eastern Virginia that identified as part of the United States of America during the Civil War.

Under the 1851 Constitution:

• Suffrage was expanded by eliminating property requirements  and granting suffrage to white men twenty-one years and older who had been residents of the state for two years and living in the locality where they voted for twelve months prior to the election.
• Individuals convicted of bribery were added to the list of ineligible voters.
• Votes remained by public voice vote, but persons unable to speak who were entitled to vote could do so by ballot.

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Constitution of 1864
https://www.lva.virginia.gov/constitutions/discover/

In 1864, voters in the localities loyal to, liberated by, or occupied by the Union during the Civil War elected seventeen members to a constitutional convention meeting as Virginia’s Restored Government after the creation of West Virginia. The convention adopted a Constitution on April 7, 1864.

Innovations of the 1864 Consitution:

• Abolished slavery immediately within Virginia, without compensation.
• Did not extend suffrage to Black men.
  
• Cut residency requirements in half, and required voters to pay all taxes assessed upon them.
• Required loyalty oaths to be eligible to vote, and delegated to the legislature the process of how voting rights would be restored.
• Disenfranchised: (1) office holders in the Confederate government or in any state government in rebellion; (2) persons of “unsound mind”; (3) paupers (4) those convicted of bribery in an election or of any “infamous offence."
• For the first time, voting was required by ballot prescribed by the General Assembly rather than by public voice vote.

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Despite end of Civil War, the three great Reconstruction Amendments (13th, 14th, 15th) to the U.S. Constitution, the three federal Enforcement Acts of 1870 and 1871, Virginia will effectively disenfranchise most of its Black population after the withdrawal of Federal troops from the South in the last 1870's.

Prior to readmission to the Union, each state had to hold an election for a constitutional convention open to all males twenty-one years and older residing in the state for at least a year, excluding persons disenfranchised for participating in rebellion or convicted of common law felonies; adopt a constitution extending the franchise to those same voters ratified by voters and submitted to Congress for approval; and ratify the Enforcement Act of 1870.

General John Schofield, the Military Governor of Virginia, ordered a referendum to elect delegates to a constitutional convention on October 22, 1867, for which 105,832 freedmen registered to vote and 93,145 voted. Of the 104 delegates, 68—including 24 Black delegates—were Republicans who favored full political and social equality for formerly enslaved Black people and exclusion of ex-Confederates from voting and holding office. On July 6, 1869, Virginia voters ratified the new constitution, rejecting two clauses that disfranchised and barred supporters of the former Confederacy from holding public office.  The result was the Underwood Constitution.

1869: The Underwood Constitution: Expands Voting Rights in Virginia

see also:  Remaking Virginia,...

The 1869 Constitution is also called the Underwood Convention, after its president, Radical Republican federal judge John C. Underwood. The new constitution significantly expanded voting rights but proposals to declare voting a natural right and expand suffrage to women failed during the convention. 

The Underwood Constitution:

• Extended suffrage to every male citizen twenty-one years and older residing in Virginia for at least a year and in the locality in which he wished to vote for at least three months, excluding
  • (1) “idiot and lunatics”
  • (2) persons convicted of bribery in any election, embezzlement of public funds, treason, or felony
  • (3) any Virginia citizen who, after adoption of the constitution, fought, sent, or accepted a challenge to fight, knowingly conveyed a challenge, or aided or assisted in any way a duel with a deadly weapon.
• Guaranteed voting by ballot.
• Created an article on local government for the first time, the new constitution established the board of supervisors form of county government and authorized the popular election of a large number of local officials.
• Renamed the Declaration of Rights as the Bill of Rights in Article I, the new constitution added provisions that renounced the right of secession; recognized the supremacy of the United States Constitution and the laws and treaties enacted thereunder; abolished slavery and involuntary servitude “except as lawful imprisonment may constitute such;” and declared all citizens of the state “to possess equal civil and political rights and public privileges."

Readmitted to the Union:  January 26, 1870

Virginia readmitted to the Union (1/26/1870) and to representation in Congress with the conditions that:
 (1) Its constitution would never be amended to deprive any U.S. citizen or class of citizens of the right to vote except as a punishment for convicted of felonies under state law (provided that amendments could be made regarding the length of time and place of voters’ residences);
(2) It would never deprive any U.S. citizen, on account of his race, color, or previous condition of servitude, of the right to hold office under state law or require any conditions not required of other citizens,
(3) Its constitution would never be amended to deprive any U.S. citizen or class of citizens of the school rights and privileges secured by its constitution.

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During Reconstruction, Black Virginians achieved voting rights and civil rights in Virginia and the South generally. These achievement would be nullified and rights crushed in the post Reconstruction period.

Black Representatives and Senators in the U.S. Congress

In 1870, Senator Hiram Rhodes Revels of Mississippi and Representative Joseph H. Rainey of South Carolina were elected to Congress , serving as the first Black members. Twenty-two Black men served in Congress between 1870 and 1901, including John Mercer Langston of Virginia in 1890.

Black Members of the Virginia General Assembly

The first Black members of the Virginia General Assembly took their seats in 1870. Nearly 100 Black men served through the remainder of Reconstruction.

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During Reconstruction, Women Were Unable to Achieve Suffrage in Virginia

Suffrage advocacy took off in Virginia in 1870 when Anna Whitehead Bodeker, aligned with National Woman Suffrage Association,  founded the Virginia State Woman Suffrage Association. Bodeker submitted a "Defence of Woman Suffrage" to the Richmond Daily Enquirer and attempted to vote in a local Richmond election. In 1872, she was able to have a petition for women’s suffrage legislation presented to the General Assembly. It was referred to committee and then ignored.

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Violent Backlash against Black People Quickly Came Postbellum

1.  KKK and other paramilitary organizations began a “reign of terror” using the weapon of lynching and white supremacist began regaining control of southern state governments
2. The Compromise of 1877 ended Reconstruction when the federal government removed its troops from the South. Violence, fraud, corruption, gerrymandering,  malapportionment, and legislative intent to disenfranchise Black voters followed.
   
3. Erosion of the power of the federal Enforcement Acts which were written to protect the intent of the Reconstruction Amendments to the U.S. Constitution (14th, 15th).
   On March 27, 1876, the United States Supreme Court issued two opinions  declaring some of its criminal provisions unconstitutional. This would cripple the Enforcement Acts and the ability of the federal government to protect Black voting right.  
   1. United States v. Cruikshank: Eight white men from the Colfax massacre appealed their convictions for conspiring to hinder citizens in the enjoyment of rights or privileges guaranteed by the federal Constitution or laws, including the rights to lawfully assemble, vote, and bear arms as guaranteed under Section 6 of the Enforcement Act. The Court overturned the convictions, ruling that the First and Second Amendments did not apply to the actions of states or private citizens, only to the actions of the federal government. Finally, the Court ruled that the only voting rights that Congress had authority to protect were the right to vote in a federal election and the right to vote free of racial discrimination, neither of which it ruled applied in this case.
   2. United States v. Reese: involved the appeal by two Lexington, Kentucky, municipal inspectors of their convictions under Sections 3 and 4 of the Enforcement Act of 1870 for refusing to receive and count the vote of William Garner. The Court ruled that the Fifteenth Amendment “does not confer the right of suffrage upon anyone,” but merely prevents the federal government or states from giving preference to one United States citizen over another “on account of race, color, or previous condition of servitude.” Applying strict construction to the Enforcement Act’s criminal provisions, the Court found that Sections 3 and 4 exceeded the scope of the Fifteenth Amendment because they did not repeat the amendment's words about race, color, and servitude, and were thus unconstitutional.

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VIRGINIA CONSTITUTION 1902

Post-Reconstruction Virginia quickly moved to enshrine disenfranchisement of the Black vote. [Disfranchisement of African Americans voters in Virginia, 1901.The Gilder Lehrman Institute of American History]

The Virginia Constitutional Convention of 1901 drafted a new state constitution to disenfranchise African Americans, without technically appearing to violate the 14th and 15th Amendments of the U.S. Constitution. The methods of disenfranchisement were: poll taxes, onerous residency requirements,  and literacy tests. The Constitution banned from the ballot box:

1. “[i]diots, insane persons, and paupers”
2. those disqualified from voting by conviction of a crime prior to adoption of the constitution whose disabilities had not have been removed;
3. those convicted after adoption of the constitution of treason, any felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery, or perjury;
4. any Virginia citizen who after adoption of the constitution fought, sent or accepted a challenge to fight, knowingly conveyed a challenge, or aided or assisted in any way a duel with a deadly weapon

Additionally, the Constitution set up or required:

1. Detailed voter registration system in which election officials could reject anyone
2. To register to vote, applicant must pay poll taxes for three years prior to the election that applicant wished to register for (with exceptions for Civil War veterans, Confederate and Union)
3. Applicants had to answer under oath any and all questions affecting their qualifications as an elector submitted to them by the officers of registration, with the questions and answers recorded, certified, and maintained in the official records by the officer.
4. Registered voters could not vote unless they personally paid  poll taxes at least six months prior to the election all poll taxes assessed for the preceding three years.
5. Anyone registered after January 1, 1904, unless physically unable, had to complete and cast his ballot without assistance on printed ballots prescribed by law; anyone regis
   tered prior to 1904 was allowed assistance in preparing the ballot by an election officer of his choosing.
6. The Constitution also established an electoral governing system of local electoral boards appointed by circuit courts, which in turn appointed local election judges, clerks, and registrars.135 The General Assembly was authorized to prescribe property qualifications of up to $250 for voting in local elections.
7.  The General Assembly was required to enact laws “necessary and proper for the purpose of security regularity and purity of general, local and primary elections, and preventing and punishing any corrupt practices in connection therewith,” and granted the power to disqualify persons convicted of such corrupt practices from voting or holding office
   

When the new constitution passed in 1902, Virginia proceeded to successfully strip the ability to vote from a large percentage of Black Virginians as well as some poorly educated white residents. Signs of success? 88,000 fewer voters took part in the 1905 gubernatorial election in comparison to the 1901 election. 

Additionally, the white-majority General Assembly appointed all election registrars, who administered a deliberately complicated process to register voters.

Although the 1902 Virginia Constitution remained officially on the books until 1971, some of its restrictive voting measures were abolished by courts and federal legislation in the 1960s:

• Literacy tests: such as Virginia's requiring a "reasonable explanation" of any part of the state constitution,  disappeared when the Civil Rights Act of 1964 stipulated that anyone with a sixth-grade education must be presumed literate.
• Poll taxes: the Twenty-fourth Amendment, ratified in 1964, outlawed poll taxes in federal elections
• U.S. Supreme Court, in Harper v. Virginia Board of Elections (1966): banned poll taxes in all elections.

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Slow Death of Jim Crow

These three Civil Rights Act (1957, 1960, 1964)  attempted to address voting rights, but by relying on post-discriminatory litigation, were ineffective in achieving true equality in voting.

1957 Civil Rights Act: First Federal Post-Reconstruction Civil Rights Act  

The 1957 Act was a step in the direction of enfranchising the non-White vote in the U.S., but it was not very effective in expanding the franchise. The Act created a Commission on Civil Rights to look at voting rights violations. Within the Commission it created a Civil Rights section to use litigation to enforce civil rights.

1960 Civil Rights Act

To addresses weaknesses of the 1957 Act, the 1960 legislation

• Required preservation of federal election records relating to  voting registration, poll taxes, or other voting related actions
  
• Set up penalties for altering or damaging voting registration records
• Allowed appointment of federal voting referees when a pattern of discrimination found in voting registration and casting a ballot
  

1964 Civil Rights Act

Authorized congress to alter state qualifications for voters in federal elections.

• Prohibited unequal application of voter registration requirements
• Prohibited the use of immaterial errors, such as word misspellings, to deny registration
  
• Required that any literacy, understanding, or interpretation test be given in writing (authorizing special provisions for visually or otherwise impaired individuals)
  
• Provided that a sixth-grade education was rebuttable evidence of literacy in any voting discrimination suit brought by the Justice Department
  

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The most important Federal Voting Rights Legislation since Reconstruction - Giving Teeth to the 15th Amendment after 95 Years

Just four months after public horror over the brutality seen at the Selma March, President Lyndon B. Johnson signed the Voting Rights Act on August 6, 1965.

[excerpt] National Archives. Milestone Documents

"The Voting Rights Act had an immediate impact. By the end of 1965, a quarter of a million new Black voters had been registered, one-third by federal examiners. By the end of 1966, only four out of 13 southern states had fewer than 50 percent of African Americans registered to vote." -- National Archives. Milestone Documents.  Read More.

What Happens in Virginia under the 1965 VRA

• Number of non-white voter registrations increased 68% between 1964 and 1966
  
• More black officials elected in Virginia.
• Elected a Delegate in 1967,  Dr. William F. Reid was first Black delegate in the General Assembly in 82 years.
• As of 1977, Black members were a majority of city council of Richmond
• 1983: Petersburg elected its first black mayor, Hermanze E. Fauntleroy, Jr.
  
• In 1992 Robert Cortez Scott becomes first Black member of Congress representing Virginia since 1888
  

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Virginia Constitution of 1971

A new Virginia state Constitution, ratified by the voters on November 3, 1970, took effect on July 1, 1971.

Constitution Highlights

• Updated the Bill of Rights to prohibit discrimination on the basis of religious conviction, race, color, sex, or national origin.
• Following federal law, the poll tax and other barriers to voting were eliminated.
• Article II, Section 1 granted the right to vote to citizens twenty-one and older who had been residents of Virginia for at least six months and of the precinct in which they wished to vote for at least thirty days.
  • In 1976, the residency length requirements were removed, and voters who moved from one Virginia precinct to another were allowed to vote at their old precinct until the following November election.
  • Residency requirements were changed in 1996 to merely require voters to reside in Virginia and the precinct in which they voted. This permitted the General Assembly to delineate how long voters could continue to vote in a former precinct once they moved to another and to provide for alternative registration for new Virginia residents in presidential elections.
• Convicted felons remained ineligible to vote unless their civil rights were restored by the Governor or other appropriate authority, and persons adjudicated mentally incompetent remained ineligible until competency was reestablished.
• Persons who would be old enough to vote by the November general election could register in advance and vote in any intervening primary or special election.
  • In 1972, the voting age was reduced to eighteen in conformance with the 26th Amendment. [see 1972 Va. Acts 1602-03.]
    
• In 1998, the General Assembly was authorized to provide for absentee voting for persons employed overseas, their spouses, and dependents residing with them who were otherwise qualified to vote.
• Article II, Section 2
  • Authorized the General Assembly to establish voter registration procedures and prohibited closing the registration period prior to thirty days before an election.
  • Prescribed standard registration application forms to be signed under oath to include information specified therein to be completed in person before the registrar and by or at the direction of the applicant and signed by the applicant, unless physically disabled.  Application fees were prohibited.  As a requisite to voting, however, the General Assembly was authorized to require the applicant to read and complete the application in his or her own handwriting.

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U.S. Supreme Court Case Erases Fundamental Protections Against Racial Discrimination in Voting

In Shelby County v. Holder, the U.S.  Supreme Court ended the powerful preclearance provision of the 1965 Voting Rights Act that required oversight of states with histories of racial discrimination at the ballot box. Preclearance requires pre-approval from the Department of Justice or the U.S. District Court for the District of Columbia before making legal changes that would affect voting rights.

[excerpt] LWVUS Legal Center

"In June of 2013, the Supreme Court held that the formula in Section 4(b) was outdated and could no longer be used to enforce the Section 5 preclearance system. The Court invited Congress to enact a new coverage formula. Following the ruling, many of the previously covered jurisdictions enacted anti-voter bills that would have been struck down under the preclearance system, including Alabama. The ruling is widely cited by voting rights activists and experts as one of the largest setbacks for voting rights in modern history." -- LWVUS, Legal Center

List of those states covered as a whole by Section 5 of VRA at the time of the Shelby County decision. - U.S. Dept. of Justice, Civil Rights Division

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U.S. Supreme Court Case Rules on Section 2 of The Voting Rights Act of 1965

In the opinion of the LWVUS and the LWV of Arizona, this U.S. Supreme Court decision made it more difficult to challenge discriminatory voting practices in court under Section 2 of the Voting Rights Act of 1965. Brnovich, refers to Mark Brnovich, the Attorney General of Arizona at the time of the lawsuit filing with the Supreme Court.

The case was whether limits placed by Arizona on ballot collection and out-of-precinct voting violated Section 2 of the VRA. Section 2 prohibits states and localities from imposing any “qualification or prerequisite to voting or standard, practice, or procedure… in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The Supreme Court upheld Arizona's ballot collection restrictions and out-of-precinct voting policy.

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Investigate More

• Senator Jennifer L. McClellan, The Voting Rights Act of Virginia: Overcoming a History of Voter Discrimination, 26 RICH. PUB. INT. L. REV. 111 (2023).
  Available at: https://scholarship.richmond.edu/pilr/vol26/iss1/7
• Elections in Colonial Virginia, Encyclopedia of Virginia
  
•  The Enforcement Acts of 1870 and 1871, U.S. Senate website
  
• The Fight for the Right to Vote, Pence Law Library Guides
• History of Federal Voting Rights Laws, U.S. Department of Justice
• Keyssar, Alexander. The Right to Vote: the Contested History of Democracy in the United States. New York: Basic Books, 2009.
• New Voting Restrictions in America, Brennan Center for Justice
• A Timeline of New and Old Efforts to Limit the Electoral Power of Voters of Color, CNN Politics, Brandon Tensley
• Voting Rights: a Short History, Carnegie Corporation
• Voting Rights Restoration Efforts in Virginia, Brennan Center for Justice
  
• Winning the Vote: a History of Voting Rights, The Gilder Lehrman Institute of American History

Page last updated 7/31/2023. If you see problems or inaccuracies, Contact Us