until after the Civil War, only white men had an opportunity to vote
Source: Humanities - Picturing America, George Caleb Bingham: The County Election, c.1852
During the colonial period, only freemen (adult white men not working as an indentured servant) could vote.
Since women were never allowed to vote in colonial Virginia, they were excluded but not "disfranchised" until the 19th Amendment to the US Constitution required Virginia to allow them to vote. Native Americans were not allowed to vote even after passage of the 15th Amendment. Voting barriers erected during the days of Jim Crow applied to Native Americans even after passage of the Indian Citizenship Act in 1924.
Men of color could not be disfranchised until a new state constitution was adopted in 1869. That document theoretically gave black men (but not black women) the right to vote, but from the beginning that right was constrained by both official and unofficial actions by white men.
It is possible that one or more persons of color managed to vote in the 1620's, but in the mid-1600's Virginia's colonial leaders made clear that blacks would be enslaved for their entire lifetime and slavery would be hereditary. They would not be granted the same freedoms as white indentured servants, who were allowed to vote after completing their terms of service (their "indenture").
The prohibition against voting by women, slaves, mulattoes, Native Americans, indentured servants, and those under the age of 21 were formalized in different acts of the General Assembly passed in 1699, 1705, and 1723. The 1723 law, "An Act directing the trial of Slaves, committing capital crimes; and for the more effectual punishing conspiracies and insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free," may have included specific language in response to concerns that a non-white man had tried to vote:1
The stimulus for passing those laws may have been someone trying to violate the customs of the day, causing one or more county sheriffs to ask for official authority to block a future attempt to vote.
The first group to have the right to vote and then be disfranchised were white males living in a household with an older male. In 1655, the right to vote for members of the House of Burgesses was limited to just the heads of households.
During the Interregnum after Charles I had been executed in England, the Puritans had sent an expedition to seize Virginia from royal supporter Governor William Berkeley. After they took control of Virginia in 1652, they held an election for a new House of Burgesses. Voters were required to swear a new oath in support of Parliament rather than the king. Some royalists may have felt disfranchised, but it appears voter turnout was still high.
The legislature elected after the Puritans took control did limit the suffrage for the first time. The General Assembly decided in 1655 that only one person per family could vote in future elections, and made clear that voters had to be at least 21 years old.
As a result of the 1655 law, sons who were living with their father lost the right to participate in elections for the House of Burgesses. Young men living in homes of their older brothers, and formerly-indentured servants still living in the home of their employer, also were disfranchised.
Since all males over sixteen years of age had to pay the poll tax, the class of young males 16-20 years old experienced taxation without direct representation. They could express their concerns to the head of the house, in hopes of shaping his vote and affecting an election indirectly.
The one-vote-per-household restriction on the electorate lasted only one year. In 1656, the burgesses concluded:2
between 1619-1920, white men (and later black men) controlled who would represent all Virginians in the General Assembly
Source: Internet Archive, A school history of the United States, from the discovery of America to the year 1878 (p.40)
The second group to be disfranchised were white males without enough property (land or a lease for land) to be taxed.
In 1660, William Berkeley was restored to his position as governor in Virginia and Charles II was restored as king in England. In 1670, Governor Berkeley restricted the right to vote to white males who owned enough property that they were required to pay local taxes.
The governor was concerned about the growing numbers of former indentured servants who had completed their term of service, but had not acquired land to start their own farm. The governor prioritized maintaining peace with Native Americans, with whom he was engaged in a profitable fur trade. He was not willing to go to war so colonists could establish new farms in the backcountry.
Driving those Native Americans far away would reduce raids on the outlying "quarters" staffed with indentured servants and enslaved people, and on the small farms created by the indentured servants after their terms of service were completed. However, the governor was not willing to pay the militia to complete that expensive task.
He was willing to approve construction of new forts, which also required new taxes but provided little or no military protection. The political advanrage of building forts was that key members of the already-wealthy gentry got paid to build them. The gentry also were appointed to different colonial offices that required higher taxes as well. The elite who depended upon the governor supported him as he redistributed wealth collected from many taxpayers to just a few officeholders, but the poor farmers ultimately grew unruly. The new property requirement limited the ability of the unhappy farmers burdened with extra taxes to prevent the governor and General Assembly from "soaking the poor."
In England, the right to vote had long included a property requirement. For many locations, the minimum was 40 shillings. As inflation increased, more and more people qualified to vote. Different boroughs had separate requirements. In one, the judges allowed "potwallopers" to vote. A potwaller/potwalloper did not own or rent an entire house, but had enough control over one fireplace to boil the pot for themselves and their families.3
The property requirement was dropped briefly in 1676, when Governor Berkeley finally dissolved the "Long Assembly" and called an election for a new House of Burgesses. That was followed by Virginia's first civil war, Bacon's Rebellion.
After the rebellion was suppressed, royal instructions required reinstating the property requirement. The General Assembly passed such a mandate in 1684, and Virginians had to own a minimum amount of property in order to vote for the next 175 years.
A law passed in 1705 required that a man had to live in the county where he voted, but later laws simply defined a property rather than residence requirement. Relaxing the residence requirement allowed some wealthy property owners to vote in multiple jurisdictions, and to choose between them when running for the House of Burgesses.4
In 1736, the property minimums were defined as 100 acres of undeveloped land, 25 acres with a house and farmed land plantation, or a town house and lot. In 1762, the minimum ownership of undeveloped land was lowered to 50 acres and the minimum size of the town house was set at twelve feet by twelve feet (twelve feet square, or 144 square feet). Since normal town houses were at least twenty feet square, the 1762 law expanded the electorate.
The 1850 state constitution finally dropped the property ownership barrier to voting.
The first state constitution had been adopted in 1776, after the colony of Virginia declared independence from Great Britain. The concept of "liberty" was popularized as the rationale for revolution, but Virginia's leaders did not expand voting rights in the 1776 constitution. Instead, the Fifth Virginia Convention incorporated George Mason's Declaration of Rights with the alteration proposed by Edmund Pendleton. That modification (emphasis added) ensured that enslaved people and the poor whites would not be allowed to vote.5
The third group to be excluded were Catholics.
The Church of England was the established church in Virginia, but George Brent from Stafford County had been allowed to serve in the General Assembly after his election in 1688. After James II was overthrown in the Glorious Revolution that year, official toleration of Catholics decreased.6
In 1699, the General Assembly banned "recusant convicts" from voting. Catholics did not regain the right to vote until 1776. The Fifth Virginia Convention adopted a Declaration of Rights stating "all men are equally entitled to the free exercise of religion," and Virginia's first constitution made no reference to how religious status affected suffrage.7
Criminals were the fourth group of Virginians to be disfranchised as a class. When the state adopted its second constitution in 1830, people convicted of an "infamous offence" lost the right to vote.
That restriction has been retained and expanded in all subsequent constitutions. The 1869 constitution gave the governor the authority to restore voting rights through a pardon. In 1870, the General Assembly initiated a database documenting who was disqualified to vote, requiring that:8
members of the House of Burgesses who met in the Capitol Building in Williamsburg were elected by white, Protestant males who owned at least 50 acres or a townhouse
Source: Wikipedia, Old Capitol Building, Williamsburg
In 2016, Governor McAuliffe broke with precedent and issued a mass pardon for 200,000 people if they had served their time and had completed any supervised release, parole or probation requirements. A lawsuit challenging his authority to issue the pardon was quickly heard by the Virginia Supreme Court.
The judges ruled that the governor had the authority to restore voting rights, but pardons had to be processed individually. The governor then completed the process in accord with the court decision, and restored the voting rights to 168,000 convicted criminals in time for them to vote in the 2017 elections. The next Governor, Ralph Northam, continued the process and restored voting rights for 11,000 felons in 2018.9
The fifth group of Virginians to experience mass disfranchisement were white male Confederates during the Civil War.
The Union Army occupied a portion of Virginia starting with the seizure of Alexandria on May 24, 1861, and the Federal government recognized the Restored Government of Virginia based in Wheeling as the official state government. When West Virginia was admitted as a state in 1863, the Restored Government of Virginia moved to Alexandria.
In 1864, the Restored Government of Virginia approved a new constitution for the state. It required voters to take an "iron clad" oath designed to disfranchise all who had supported the Confederacy after January 1, 1864. Anyone who had served in the Confederate government or state government was also banned. The 1864 constitution did not attempt to disfranchise local officials, however.
the 1864 constitution attempted to block Confederates from voting
Source: For Virginians: Government Matters, Constitution of 1864
On May 25, 1865, black men went to the polls in Norfolk to vote in the first election after the end of the Civil War, to send delegates and a state senator to Richmond.
At three wards, election officials refused to let the blacks vote. In the Second Ward, votes were recorded, though on a separate sheet which was not counted when determining results that day. Simply denying the right to vote in three wards extended the traditional barrier of disfranchisement by color, while the manipulation of the voting process by refusing to count the votes of black men in the Second Ward initiated a new mechanism of controlling the vote.
In March 1867, the US Congress declared Virginia to be Military District 1 and mandated the state adopt a new constitution that allowed black adult males to vote. The Federal government did ensure blacks could vote when Virginia elected a constitutional convention on October 22, 1867. Over 20 blacks were elected to serve in the convention.
in 1870, black men registered to vote in Richmond while Federal troops were still located in the city
Source: Library of Congress, First municipal election in Richmond since the end of the war - registration of colored voters (Harper's Weekly, June 4, 1870)
One of those was Willis Augustus Hodges, elected from Princess Anne County. All of his 807 votes came from African American men voting for the first time. The candidate to serve in the constitutional convention with the second-highest number of votes was a white man. One of his 609 votes came from an African American man, and the 608 votes came from white men.
Known as "Old Specs Hodges" because he wore glasses, Frank Leslie's Illustrated Newspaper highlighted his presence in a February 15, 1868 illustration of the convention. In the 1869 election for the House of Delegates, his brother Charles E. Hodges was elected from Norfolk County/Portsmouth, and his nephew John Quincy Hodges was elected from Princess Anne County.10
Willis Augustus Hodges, wearing glasses at the 1868 convention chaired by Judge John C. Underwood
Source: Library of Congress, First municipal election in Richmond since the end of the war - registration of colored voters (Harper's Weekly, June 4, 1870)
The 1867-68 convention, presided over by Federal Judge John C. Underwood, proposed a new state constitution with the requirement that voters take the "iron-clad oath" swearing they were always Union supporters.
The proposed constitution would allow black men to vote, but disfranchise those white men who had held public office prior to the Civil War and then supported the Confederacy. The moral argument was that those men had broken their oath to uphold the Constitution of the United States.
The practical effect, which may have been a prime motivator for those in the 1867-68 convention who wrote the new state constitution, was to block almost all of the conservative white leadership from participating in the political process. If the top white leaders were disfranchised, then the Republicans and the newly-enfranchised blacks would be able to control the governor's office, the General Assembly, and local offices.
In 1869, a compromise was created to allow a separate vote on the suffrage restriction. Voters rejected the disfranchisement of Confederates, as proposed in the fourth clause of Article 3, Section 1:11
Article 3, Section 1 of the 1869 constitution included only three clauses, after voters rejected the proposed fourth clause to disfranchise former Confederates
Source: for Virginians: Government Matters, Constitution of Virginia, 1872
The US Congress accepted the new state constitution, which allowed previous Confederate leaders to be eligible to serve in public office.
Robert M. T. Hunter resigned from the US Senate and became Confederate Secretary of State, so the Underwood Constitution of 1869 would have blocked him from voting if the disfranchisement clause had been approved
Source: U.S. House of Representatives, Robert Mercer Taliaferro Hunter
The Fifteenth Amendment, added to the US Constitution in 1870, gave black men the right to vote. Exercising that right was never easy, and Federal officials failed to require compliance with the Fifteenth Amendment.
The power to disfranchise criminals was expanded in 1876 by an amendment to the state constitution, barring those convicted of petit larceny from voting. White sheriffs, working with racially-biased white judges and juries, could ensure that black men would be convicted and disfranchised at a far higher rate than white men.
White Democrats successfully kept many black men from voting for Republican candidates through multiple techniques. One was to use the registers of convicts, maintained by county courts, to challenge black men who appeared at precincts and have registrars bar those men from voting.
after the Civil War, the Republican-controlled US Congress required the former Confederate states to ratify the 15th Amendment providing former male slaves the right to vote, but Virginia used the poll tax and other restrictions to limit the effectiveness of that mandate for over a century
Source: Architect of the Capitol,
In 1902, a new state constitution was written to limit the electorate more efficiently. Carter Glass made clear the intent:12
The Supreme Court had authorized "separate but equal" treatment of the races in its 1896 Plessy v. Ferguson decision. The 1902 constitution was successful in treating white and black voters unequally:13
the 1902 Constitution was designed to limit the electorate by excluding people of color
Source: University of Virginia Library, No White Man to Lose His Vote in Virginia (1901)
One tool of the new constitution was to reinstate the requirement that voters must have paid taxes before being eligible. Rather than require voters own a minimum amount of property, a complicated scheme for paying a poll tax was created. The Byrd Organization mastered that process to control the electorate from the 1920's into the 1960's.
Until a court banned the practice in 1929, the political parties could limit voting in primaries for selecting candidates to just whites. That blocked non-whites from helping to select candidates. The Indian Citizenship Act of 1924 explicitly gave Native Americans the right to vote, but that same year the Virginia General Assembly passed the Racial Integrity Act. The registrar of Virginia's Bureau of Vital Statistic, Walter Plecker, sought to classify all Virginians as either "white" or "colored." At the time, discrimination against Native Americans in Virginia was based on a perception that they were so intermixed with blacks that Native American identify had disappeared, so the Indian Citizenship Act of 1924 would not apply.
The "grandfather clause" in the constitution allowed men to vote if they had served in the Civil War, as either a Union or Confederate soldier. This special provision "grandfathered in" white voters without requiring them to pay the poll tax. After the US Supreme Court ruled in 1915 that such clauses violated the 15th Amendment, the Virginia Attorney General commented that the clause was not needed to discriminate successfully,. He wrote in an Alexandria paper:14
the 1902 Constitution "grandfathered" those who fought in the Civil War, or whose fathers fought, to vote without paying the poll tax
Source: Library of Virginia UnCommonwealth blog, We Demand Complete Realization: The Slow Legal Fight For Enfranchisement (September 11, 2020)
Over sixty years later, the civil rights movement overturned the disfranchisement processes which had been established in the 1902 Constitution and implemented by subsequent state laws and registration/voting procedures.
In 1964, enough states ratified the 24th Amendment to abolish the poll tax in Federal elections. The Virginia General Assembly, anticipating that the poll tax would be eliminated, had adopted another new restriction on non-white voters in 1963. In a special session, the legislators passed a law requiring voters for Federal offices to file a certificate of election demonstrating their residency at least six months to each Federal election.
The residency requirement would have provided a tool to suppress non-white voters in Federal elections. The US Supreme Court ruled in 1965 that a residency mandate would make the electorate that was eligible to vote in Federal elections smaller than the electorate that was eligible to vote for the Virginia House of Delegates. That restriction violated Article I, Section 2 of the US Constitution.15
The US Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and Virginia had to relax its racial barriers to voting. Until 1971, the Constitution of Virginia included a requirement to pass a literacy test in order to register to vote. That was a "device," as described in the Voting Rights Act of 1965, that local officials used to discriminate against non-white voters and suppress their vote.
after the US Congress passed the Voting Rights Act in 1965, the number of non-white registered voters increased dramatically
Source: US Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States (p.26)
State officials claimed that the 1964 constitutional amendment eliminating the poll tax applied only to Federal elections. Voters in state and local elections were till required to pay $1.50/year for the last three years before they could vote for members of the General Assembly, boards of supervisors, or city/town councils. Accounting for inflation, in 2020 dollars that was about $130.
The remnants of the poll tax barrier lasted only two more years, however. In 1966, the US Supreme Court ruled in Harper v. Virginia State Board of Elections that the 14th Amendment blocked use of the poll tax to limit the electorate in state elections. Plaintiffs incouded Annie E. Harper and three others from Fairfax County, plus Evelyn Butts from Norfolk. She was a seamstress who had not completed high school, but demonstrated her talents as an effective activist for civil rights.
After winning the case abolishing the poll tax for state elections, she registered thousands of new voters. They helped elect the first black member of the Norfolk City Council in 1968, and the first black member if the House of Delegates from Hampton Roads in 1969.16
The 1965 Voting Rights Act initially applied to the entire state of Virginia because less than 50 percent of persons of voting age voted in the presidential election of November 1964. Section 5 of that law required Federal or court review of any change affecting voting within that "covered area."
Between 1965-2013, the US Department of Justice had legal authority to challenge actions by Virginia jurisdictions that might suppress the impact of non-whites on elections.
For example, in 1999 the polling center for the Darvills Precinct in Dinwiddie County burned down. The closest alternative site for a replacement was the Cut Bank Hunt Club, a private facility where most members were African-American. County officials proposed to move the precinct voting site to Bott Memorial Presbyterian Church, a predominantly-white organization at the extreme east end of the precinct.
That church was far from where most African-Americans lived, on the western end of the precinct. The US Department of Justice objected and blocked the shift, citing discriminatory impacts that violated the 1965 Voting Rights Act.17
The law allowed counties/cities/towns within Virginia to terminate or "bail out" from coverage by appealing to a special a three-judge panel, if the jurisdiction could prove that it had not discriminated illegally to restrict access to the electoral process within the last 10 years. Ending oversight reduced legal costs for the jurisdictions for routine decisions related to elections, such as relocating polling places or changing boundaries of voter precincts after redistricting.
Virginia sought to have the entire state freed from Voting Rights Act oversight in 1974, but that effort failed. The first local jurisdiction in Virginia to get bailout approval was the City of Fairfax, in 1997. The last to bail out was the City of Falls Church, which received approval in 2013.
in 1997, the City of Fairfax was able to bail out of oversight requirements in the 1965 Voting Rights Act
Source: US Department of Justice, City of Fairfax, Virginia v. Janet Reno (p.7)
Of the 52 consent decrees authorizing bailout, 32 were for different Virginia cities and counties (including their towns). The Shelby County v. Holder decision by the Supreme Court in 2013 ended the requirement for bailout approval.18
32 Virginia jurisdictions bailed out of oversight requirements in the 1965 Voting Rights Act
Map Source: Wikipedia, Virginia county locator maps
Not all constraints on voting qualify as "disfranchisement." Federal laws allow state and local governments to define who is a "qualified" voter entitled to participate in an election. Voter rolls may be purged to limit the names in a poll book to just those who are qualified, enabling election officials to more-quickly process voters, and states may require specific forms of identification when a voter appears in person at a precinct.
four Federal laws affect voter eligibility, and limit voter suppression techniques
Source: Joint Legislative Audit and Review Commission, Operations and Performance of Virginia's Department of Elections (Table 1-1)
At the end of October, 2019, there were 5,628,989 registered voters in Virginia. As people move out of their voting district, where they are eligible to vote changes. Most people who move fail to notify the registrar for their old residence. The Virginia Department of Elections gets data from various sources and exchanges data with other states to identify if someone has registered in another location, and thus should be removed ("purged") from the poll books for their old residence.19
over 20% of Virginia's voter registration list may be outdated each year (voter registration and removal data, FY2017)
Source: Joint Legislative Audit and Review Commission, Operations and Performance of Virginia's Department of Elections (Figure 2-1)
the Virginia Department of Elections uses multiple sources to identify if General Registrars should be alerted about a voter's eligibility
Source: Joint Legislative Audit and Review Commission, Operations and Performance of Virginia's Department of Elections (Figure 2-2)
The Virginia Department of Elections oversees local registrars and Electoral Boards because:20
Even legitimate efforts to ensure voters are qualified can become controversial. In 2019 the Fairfax County registrar rejected 171 registration applications from George Mason University (GMU) who registered using campus mailbox numbers and a general university address, rather than identify a specific dormitory name or private home address.
Registrars are required to determine the residence of voters, in order to determine in which precinct (and for which elected offices) they should vote. The university allowed off-campus students to have a campus mailbox, so the registrar was unable to accurately determine the correct voting precinct for those 171 students. The polling place at GMU's Merten Hall was not appropriate for at least the three students who registered using their campus mailbox, but were known to live in Prince William County.
Virginia allows homeless people and others to register to vote, without citing a specific physical address of their residence
Source: Virginia Department of Elections, Virginia Voter Registration Application
The Fairfax registrar agreed to allow the 171 student voters to provide a correct address by the Saturday prior to the election. A US District Court judge then ordered that any of them who failed to provide a more-specific address by that deadline could still vote on Tuesday, using a provisional ballot. Their votes would be counted if they provided the specific address by noon on the Friday after the election.21
students who physically live on the Fairfax campus of George Mason University are assigned to Precinct #134
Source: Fairfax County, Braddock Supervisor District
At James Madison University, the campus is divided into two precincts. Students must include the name of their dorm when they register in Harrisonburg, in order to be assigned to the correct precinct.
Redistricting in 2019 split the Christopher Newport University campus in Newport News. Campus housing on the west side of Warwick Boulevard ended up in the 94th District for House of Delegates, while units on the east side of the highway ended up in the 95th District. The roughly 600 students registered to vote all used the same address, where mail is sent to students. The Newport News registrar, with assistance from university officials, tried to contact all those registered voters via mailings, emails, phone calls, and text messages in order to determine whether they vote in the Wellesley precinct in the 94th District or the Boulevard precinct in the 95th District.
The "every vote counts" mantra was especially relevant in the 94th District. In the 2017 election, the race ended in a tie vote. The race was decided by placing the names of the two tied candidates into a bowl, and then drawing out one name to pick the winner.22
redistricting in 2019 split Christopher Newport University housing between the 94th District (Wellesley precinct) and the 95th District (Boulevard precinct)
Source: City of Newport News, House Of Delegates Districts - Voter Precincts, Polling Places
However, large-scale disfranchisement would be necessary to make a difference in most races. Between 2008-2017, the vast majority of contests for state and Federal offices were decided by margins of more than 1,000 votes.23
most contests for state and Federal offices between 2008-17 were decided by more than 1,000 votes
Source: Joint Legislative Audit and Review Commission, Operations and Performance of Virginia's Department of Elections (Appendix C)