When Melvin Wingate was released from prison in 2001, casting a ballot was not high on his priority list.
He knew, of course, that even though he’d served his five-year sentence, his felony conviction meant he’d never be able to vote in the commonwealth of Virginia.
But he had larger concerns at the time.
“When you have a felony and are stripped of your rights, the mindset is, ‘OK, I’m going to get a job and take care of my children and wife,’” Wingate told The Daily Progress. “And I did that.”
He did more than that. After years battling addiction, Wingate said he has been clean and sober for more than two decades. He also is a pastor at Living Hope Outreach Deliverance Ministries. For work, he helps people overcoming drug addiction as a peer support specialist for Region Ten.
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Now, 22 years since being incarcerated, something has dawned on the Charlottesville resident. He wants to vote.
“When you’re young you think you’re invincible,” he said. “Lately it’s something that came across my mind. I think I should be able to have my rights.”
He is not alone.
Wingate is among three individual plaintiffs in a lawsuit filed against Virginia state officials. In an attempt to restore voting rights to people with felony convictions, it argues that part of the commonwealth’s constitution violates a 150-year-old federal law which readmitted Virginia to the U.S. Congress after the Civil War.
If the lawsuit succeeds, it could be a seismic shift in Virginia elections and beyond.
“This would be interesting precedent,” University of Virginia professor A. E. Dick Howard told The Daily Progress. “This is probably the sort of case that’s being watched very closely by people on both sides of aisle in other states.”
Article II of Virginia’s constitution says that any person with a felony conviction loses their right to vote unless it’s restored by the governor. Only two other states have such a provision.
Further, Virginia is the only state in the nation that requires a person with a felony conviction to individually petition the governor to restore that right.
“The last several governors have tried to streamline the process for auto restoration and all those efforts have been rolled back by the current administration,” Vishal Agraharkar told The Daily Progress.
Agraharkar is an attorney for ACLU Virginia which, along with Protect Democracy and WilmerHale, is serving as co-counsel for the plaintiffs.
ACLU Virginia’s ultimate goal, Agraharkar said, is to amend the state constitution to ensure a person’s right to vote can’t be taken away.
“Even a victory in this case won’t get us all the way there,” he said. “However, this would go a long way toward correcting a historic wrong that has lasted far too long and impacted too many people.”
The suit is centered on an untested legal theory.
When the commonwealth was brought back into the Union in 1870 via the Virginia Readmission Act, it was prohibited from amending its constitution to deprive citizens of the right to vote, except for punishment for crimes that were common law felonies at the time.
Those crimes were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny.
Yet today’s constitution includes a number of crimes that were not considered felonies in 1870. Among them are drug offenses and “uttering”, which is the presentation of a document known to contain forgery.
Wingate was convicted of uttering, a Class 5 felony under Virginia law.
“We’re asking the court to provide relief for everyone who has lost the right to vote for things that were not felonies in 1870,” Agraharkar said.
He said he believes this is the first time this particular legal theory has been tried. It’s anyone’s guess as to whether or not it will actually succeed.
“But the law itself is fairly clear in that the language is something along the lines of, Virginia can’t amend its constitution to take the right to vote away other than common law felonies,” Agraharkar said. “Given clarity in that language and that this law has not been repealed by congress, we’re hopeful the court will see it the same way.”
Howard has written about the history of efforts to restore voting rights to Virginia’s former felons. There’s been lots of political debate in recent years over Article II in the state constitution, he said, and this lawsuit only brings it more visibility.
“This is very much on people’s minds and has become somewhat political, which I think is unfortunate,” he said. “It seems some people assume that felons who are reenfranchised would be Democrats. I don’t see any factual basis for that.”
Howard is intrigued by the legal theory being tested, which he thinks weaves different types of arguments together.
One argument is Virginia’s long history of discrimination against Black people.
“The 1902 constitution was based on the premise of White supremacy. They eliminated practically every Black voter in Virginia,” he said. “It was hideously difficult for a Black voter to get registered.”
The case also focuses on the present-day consequences of that discrimination. Howard noted that the percentage of Black voters who are disenfranchised in the commonwealth is higher than in most other states.
“That disproportionate impact is directly traceable to a constitutional provision that was never allowed to exist in the first place,” Agraharkar said. “We hope if we get relief here it’ll impact thousands of people who have been disenfranchised and right a historical wrong.”
It’s too early to speculate how the suit will fare in court, but Howard pointed out one problem the plaintiffs may encounter: While their case focuses on the 1902 constitution, a new constitution was adopted in 1971. Howard was the executive director of the committee that wrote it.
“One thing they don’t address is what difference it makes that Virginia now has a different constitution from 1971 that supersedes and indeed rejects the legacy of post-Reconstruction in the 1902 constitution” he said.
The current constitution, he said, is “an outright repudiation of the White supremacist legacy of the late 19th and early 20th century.”
That may be a serious legal hurdle for the plaintiffs. Yet Wingate said that whatever the case’s outcome, the suit itself is monumental.
“Think about what the lawsuit stands for. What you’re suing for. You’re suing for your rights,” he said. “Think about how many people, not just Melvin Wingate, have not had an opportunity to voice their opinion.”
Since being released from prison, Wingate has been unable to vote in five presidential elections, six midterm elections and five gubernatorial elections. Despite his time behind bars and then being barred from the ballot box, Wingate said he has gone on to beat addiction, hold a stable job, raise a family and become a pillar in his community.
“If you can only see one mistake I made in life, that’s something we should look at. We should all have a second chance. How many times have we given America a second chance?” he said. “Your vote is your power. Your vote is your voice. I’m a citizen, right? Shouldn’t I have a right to voice my opinion?”
