Last week I kicked off this election preview by offering some general thoughts about the three state Constitutional amendments on the ballot, and previewed Question/Amendment 1, which is about reproductive rights. Below: the other two ballot questions.
Ballot Question 2: Marriage Equality
Oh how the times have changed.
The Constitution of Virginia has been amended an average of roughly once per year since the latest version was ratified in 1971. Many of the most recent amendments are tiny affairs: property tax rebates for first responders, veterans, or their surviving families. These “support the troops” efforts, while a big deal to the few families affected, are largely symbolic. We don’t often see the kind of substantive change that marks a significant reform or addition of new ideas and policies to the state constitutional framework – just another reason that this year’s THREE such additions are such a big deal.
One big exception to this no-big-deal rule before this year happened 20 years ago: an amendment that added language to the Constitution that said that marriage could only be “a union between one man and one woman.” It never came close to failing; roughly three-fourths of legislators voted for it, and voters approved it by 57%. Looking back, though, we can see this amendment as not just the last gasp of a Red Virginia, but also a kind of last gasp of national opposition to gay rights and marriage equality especially.
Polling data on same-sex marriage is a pretty stark “X”, which is hard to find over such a short period of time. Even with some slight narrowing in recent years, the country has completely changed its mind on the issue, with two-thirds of Americans now supporting marriage rights for same-sex couples. There’s a lot of reasons why this happened, including the longstanding efforts of gay rights activists. I also think as more states allowed such marriages to happen, and the sky didn’t exactly fall out, opponents lost the battle (and maybe lost the thread).
Still, the war continues. Ballot Question 2, which essentially proposes to erase the “mistake” of the 40th amendment from just 20 years ago, is probably very much in line with where Virginia and America are right now. But there are opponents, like the Family Foundation of Virginia, who still argue that marriage should remain between a man and a woman.
While again, I don’t think most people agree, opponents are also raising concerns about the amendment “enshrining gender ideology” into the Constitution as it bars denying marriage licenses on the basis of “sex, gender or race.” The mention of race is a wise move by the amendment writers, especially in the state where loving someone of another race (literally Loving) became legal. But including gender makes it more complicated. Because, as opponents recognize, Americans are definitely NOT on the other side of the X on trans rights.
As a side note, this is hard for me as an academic with some sociological training. Trans folks are kick-starting important conversations about the overlap of, and differences between, biological sex, sexuality and gender. But not everyone is ready to have that conversation. (When I tell people “gender is a performance,” some of them, including my most progressive students, look at me sideways.) It’s complicated and a work in progress, which is frustrating, to say the least, for LGBTQ+ advocates.
Still, even with how far that conversation has gone and yet to go, I find it hard to believe that adding gender to this marriage amendment will suddenly lead to spate of trans women in sports controversies (which aren’t really happening anyway) or bathroom assaults (which aren’t happening at all). It’s possible this amendment could be the thin end of the wedge, but it’s a long way from there to get to trans rights being protected in the Constitution.
Still, even if opponents had some ground to stand on here, a “trans gambit” — which, not coincidentally, Republicans are trying across the country this fall — is unlikely to work in Virginia. Why? Winsome Earle-Sears tried it last year to bolster her failing campaign, and it didn’t seem to get her any traction. Whether or not Virginia is as blue a state as I often claim it is — and, as Glenn Youngkin showed, there are ways to turn some moderate voters away from the Democrats — this year doesn’t seem one where concerns about gender are going to drive a big NO vote here or a Republican vote in other races.
Instead, the most resonant argument seems to me to be that 20 years ago, Virginians supported a rear guard Constitutional change that almost immediately became outdated. More importantly, while our language is out of step with where most of the country is, it is not necessarily out of step with the conservative majority on the U.S. Supreme Court. So removing that outdated language before any decision comes along to overturn marriage equality (like Dobbs did to Roe v Wade) seems to me a compelling closing argument for many Virginians.
Ballot Question 3: Felon Voting Rights
This one’s complicated.
On the basics, it’s not that hard to understand. Virginia, like many states, takes away the right to vote from convicted felons. Unlike most other states, however, Virginia does not automatically restore the right to vote for these felons once they complete their sentence. In Virginia and only two other states (Kentucky and Iowa), these returning citizens have to send a personal appeal to the Governor to get their voting rights (and, by extension, some other rights) restored.
I might argue that most Governors since Bob McDonnell have basically treated this process as an inconvenience, trying to fast track restoration. Glenn Youngkin, however, showed what happens if a Governor doesn’t want to participate. Youngkin essentially turned the process into a mystery box, a black hole of restoration requests. So now advocates want to take the process completely out of the Governor’s hands, so that a future Youngkin can’t block restoration. So: Ballot Question 3 would change the Constitution so that voting rights would be restored automatically once a person leaves incarceration. Get out of jail, get your right to vote back.
Recent litigation has already led to many, many Virginians having their rights restored. (This is part of the complication.) It turns out that the original law that removed rights from felons specified only a certain KIND of felony – a “common law” felony in 1870 – applied here. So many of the crimes defined in later law shouldn’t have been covered. Essentially, Virginia has been violating the law by removing voting rights from thousands, if not millions, of returning citizens over the past 150 years. The proposed amendment would just cover those last few felonies that WERE part of the common law back then.
Advocates of the change also point to history. They argue that this process is a remnant of the days when southern party machines and segregationists limited voting rights, especially Black Americans but also poor white folks, in order to maintain power. And it makes sense to me, at least, that if we have a criminal justice system that is supposed to punish AND rehabilitate, then the ability to participate should come back with your freedom to leave your cell. Laws like “ban the box” make the case that someone who has done their time, has paid their debt and should get another chance. On this logic, voting rights should be no different.
There are, of course, objections. Even if you buy the rehab argument, some folks note, the proposed amendment automatically restores rights immediately upon release from incarceration, even if there are other restrictions and sentence “leftovers.” Returning citizens on parole or who owe restitution of some kind, this line of objection goes, have not yet paid their debt to society. That’s worth some further discussion, I suppose, but not likely to affect enough cases to make it a determining factor for most voters.
There are other arguments about violent felons and victim’s rights that point to these last few felonies from 1870 as the most serious ones. These objections are also at least understandable – for most folks, there IS a difference between a conviction for drugs and one for murder. But if we really believe that the justice system is supposed to account for those differences, I don’t know how we get to a point where we can say “this case is too egregious for rights restoration.” Or, more importantly, why we should let Glenn or Abigail make that call. They are elected officials, I suppose, but they not judges in the criminal justice system, so it’s still a bit archaic and/or odd to put them in that position. The whole thing as we have it currently, just doesn’t make a lot of sense.
Another way to think about this is to look at the entire amendment. It includes an update to language in the Constitution about those deemed unfit to vote, changing the term “mentally incompetent” to a more modern (and accurate) “lack the capacity to understand the act of voting.” Advocates argue the individual appeal process is equally archaic.
Virginia Democrats have dramatically expanded voting rights and voter access since they first landed a trifecta during the Northam administration. So they have spent a decade telling Virginians — in some sense, training them — to think of voting rights and expansion as an important thing. I think these “trained” voters will follow them here and support the amendment.
And, really, that’s the bottom line on ALL THREE amendments. While I generally avoid predictions, what will happen in a likely blue wave year on three key issues that Virginia Democrats have trumpeted for years? It would be a HUGE surprise if any of these failed.
Coming up next: those pesky Virginia Congressional races.
RICHARD MEAGHER is Professor and Chair of Political Science at Randolph-Macon College in Ashland, Virginia; he writes the RVA Politics newsletter on Substack.
