Something remarkable has happened to Virginia’s voter rolls this year, and unless you read Virginia public radio or a handful of legal blogs, you probably missed it. I know I did.
On January 22, 2026, Senior U.S. District Judge John A. Gibney Jr. of the Eastern District of Virginia ruled in King v. O’Bannon (Civil Action No. 3:23cv408) that Article II, Section 1 of the Virginia Constitution, the provision that automatically strips the vote from anyone convicted of a felony, violates a federal statute most Virginians have never heard of: the Virginia Readmission Act of 1870. The judge certified a statewide class, granted summary judgment to the plaintiffs, and entered a permanent injunction. That injunction remains in force today.
By September, Virginia’s Department of Elections had mailed notices to 234,852 people telling them their felony convictions should never have cost them their right to vote. As of September 15, the department’s published guidance lists only three felonies that still disqualify a Virginian from voting: murder, voluntary manslaughter and involuntary manslaughter.
Read that again. Under the state’s current guidance, a person convicted of a drug distribution felony, a gun felony, perjury, felony fraud, felony assault, or most of the other offenses in the Virginia Code is now eligible to register and vote, with no petition to the Governor required.
The Law Behind the Ruling
When Congress readmitted Virginia to representation after the Civil War, it attached conditions. The first of those “fundamental conditions” reads:
“That the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.”
The key words are “as are now felonies at common law.” Judge Gibney held that Congress froze that phrase in 1870. Virginia later rewrote its Constitution in 1902 and again in 1971, and the 1971 version disqualifies anyone “convicted of a felony,” with no distinction between common-law and statutory crimes. The state’s own election officials admitted in discovery that they “do not make any distinction between ‘common law’ felonies or non-‘common law’ felonies in practice.” The court found that this put the Virginia Constitution in direct conflict with federal law, and under the Supremacy Clause, federal law wins.
Conservatives should notice the method. The defense asked the court to read “felony” flexibly, borrowing the Supreme Court’s “historical analogue” approach from the Second Amendment case United States v. Rahimi. Gibney refused, writing that unlike the Second Amendment, “Congress meant to trap the definition of ‘felonies at common law’ in amber.” Whatever you think of the outcome, the opinion is built on text, original public meaning and period sources like Blackstone, Hale, Hawkins and Wharton. This is not a living-constitution ruling.
The opinion also does not hide from the history. It quotes Carter Glass at the 1902 Constitutional Convention describing the new suffrage article as a plan aimed at “the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”
What the Injunction Actually Means
Because so little of this has been explained to the public, here is what the injunction does, in plain terms.
Who is bound. The order runs against the members of the State Board of Elections, the Commissioner of the Department of Elections, and the general registrars named in the suit, in their official capacities. Because the court certified a class of “all citizens of the Commonwealth of Virginia who are currently, or in the future will be, disqualified from voting under Article II, Section 1 of the Virginia Constitution because they were convicted of a crime that was not a felony at common law in 1870,” the relief covers every such Virginian, not just the two named plaintiffs, Tati Abu King and Toni Heath Johnson.
What is prohibited. Election officials may not deny or cancel a voter registration on the basis of a felony conviction unless that conviction is for one of the eleven crimes that the court found were felonies at common law in 1870: (1) arson; (2) burglary; (3) escape and rescue from a prison or jail; (4) larceny; (5) manslaughter; (6) mayhem; (7) murder; (8) rape; (9) robbery; (10) sodomy; and (11) suicide. Every other felony conviction is off the table as a basis for disenfranchisement.
What is not required. The list is a ceiling, not a floor. The court said plainly that it does not require Virginia to disenfranchise anyone for those eleven crimes. In its words, “Virginia can freely choose to disenfranchise a person convicted of one of the eleven common-law felonies. But Virginia may not use any other felony conviction as a grounds for disenfranchisement.” The opinion also notes that some items on the list, such as consensual sodomy and suicide, are no longer punished in Virginia at all.
How “common law” is applied. This is where the state stumbled. Attorney General Jay Jones’s office tried to map the eleven historic crimes onto 284 modern Virginia statutes, arguing, for example, that an illegal use of tear gas that maims someone could count as common-law mayhem. In an August 19 order, Gibney rejected that approach, holding that a conviction under a modern statute is not the same thing as a conviction for the common-law felony. “This case is simple,” he wrote. “The Virginia Readmission Act gives a straightforward rule, and this Court’s injunction reflects that rule.” Within a month the Department of Elections scrapped the 284-crime list and published the three-crime list described above.
When it took effect. The court set a compliance date of May 1, 2026, to stay clear of the Purcell doctrine that discourages courts from changing election rules close to an election. The parties later agreed to move it to June 1. Implementation was rocky. Registrars were told for a time to put felon registrations “on hold,” and the judge found the state had lagged, “sometimes egregiously so.” The state has since reported that about 998 registrations were improperly denied or canceled under its earlier guidance.
What it does not do. The injunction does not let people vote while they are incarcerated; the judge declined to take up that question when the ACLU raised it in March. It does not award damages, which sovereign immunity bars. And it does not repeal Article II, Section 1. The provision stays on the books, but officials are forbidden to enforce it beyond the limits the Readmission Act allows. The Governor’s clemency power to restore rights remains available to anyone still disqualified.
Why it is still in place. Virginia lost an earlier round at the Fourth Circuit in December 2024, and the Supreme Court declined to hear the case. After the January 2026 ruling, the Commonwealth, now under Governor Abigail Spanberger and Attorney General Jones, chose not to appeal. That decision matters. It means the injunction is final and binding in Virginia, but no appellate court has ever tested Judge Gibney’s reading of the Readmission Act. The United States Department of Justice, notified under Rule 5.1 that the state was challenging the constitutionality of a federal statute, also declined to intervene before the deadline.
Where Was Everyone?
This is a story about a quarter of a million potential voters in a swing state, decided under a Reconstruction statute that hadn’t been seriously enforced in more than a century, in an election year. It should have been everywhere.
It was not. The Washington Post ran a story on the January ruling, and Courthouse News, Democracy Docket and the Election Law Blog noted it. After that, the coverage came almost entirely from Virginia outlets: VPM, the Virginia Mercury, WHRO and Cardinal News. Those reporters did the work. But the follow-up developments that matter most, the AG’s 284-crime list, the judge’s August rebuke, the collapse of the disqualifying list to three crimes, and the 234,852 notices mailed by the state, drew little if any attention from the national networks or the major national papers.
Readers can draw their own conclusions about why. The story does not fit neatly into anyone’s preferred narrative. For those who cheer expanded voting rights, it is awkward that the expansion came not from the people or the legislature but from a single federal district judge, and that the state’s top lawyer declined to seek review of a ruling that now permits people convicted of rape and robbery to vote. For those who oppose it, it is awkward that the ruling rests on plain text, original meaning and a federal statute Congress passed and never repealed. When a story is inconvenient for everyone, it tends to go unreported.
Why It Matters Beyond Virginia
Virginia is not alone. Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Texas were all readmitted under acts containing identical or nearly identical language. Because Virginia did not appeal, Gibney’s ruling sets no binding precedent outside the Commonwealth, but the roadmap now exists, and civil rights litigators know it.
Virginians will also face the issue directly at the ballot box on November 3. Ballot Question 3 would amend the Virginia Constitution to restore voting rights automatically to people who have completed their felony sentences. Whatever happens with that amendment, the federal injunction remains in place, and the Readmission Act limits any future rewrite of the suffrage article as well.
However you come down on felon voting, the people of Virginia deserved to hear about this from more than a few public radio stations. A change this large to who may cast a ballot should be debated in the open, not discovered after the fact.
Sources: Opinion, King v. O’Bannon, No. 3:23cv408 (E.D. Va. Jan. 22, 2026), ECF No. 222; reporting by VPM, the Virginia Mercury, WHRO, Bolts and The Washington Post.
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