Virginia NAACP President Cozy Bailey speaking to a crowd in front of the Shenandoah County Circuit Court on June 11, 2024. (Photo by Nathaniel Cline/Virginia Mercury)
The Virginia Court of Appeals determined Tuesday that the Virginia NAACP’s yearslong challenge to Gov. Glenn Youngkin over access to records concerning his administration’s changes to voting rights restorations can move forward.
Because a previous ruling by a Richmond judge that sided with the governor never addressed the attorneys fees that had been part of NAACP’s lawsuit, the appellate court has decided the case is not closed.
“We dismiss the premature appeal without prejudice and remand the matter to the trial court to consider the attorney fee issue,” the court’s judges wrote in a filing Tuesday.
The Mercury asked the civil rights group to comment on Tuesday’s ruling and their next steps concerning the case but did not hear back by press time.
Case background
The Virginia Conference of the NAACP had originally filed a Freedom of Information Act request to the governor’s office seeking further details about how it handles restoration of voting rights to people with felony convictions who have completed their sentences.
In Virginia, people with these convictions permanently lose their right to vote unless a governor pardons them or they petition a governor to restore the right. Previous governors — both Republican and Democratic — had worked to streamline the process and make it automatic upon completion of a prison sentence. The process quietly reverted to a petition-based one under the Youngkin administration, with fewer petitions granted than previous governors and unclear criteria for what would yield a “yes” or “no” from his administration.
The lack of transparency in the restoration process is why Virginia’s NAACP filed its original records request. Acting in what former Youngkin spokeswoman Macaulay Porter called “good faith,” the administration had released a document to the organization that provided some insights.
The document suggested that completion of probation or repayment of fines might be a factor in Youngkin’s approval. Further details were not disclosed. The tidbits of information Youngkin’s administration decided to share had tipped off NAACP about the existence of a database repository for restoration petitions, which their lawyers had argued should have been viewable to their client.
The district judge’s previous ruling supported Youngkin’s withholding under an exemption the state code dubs “working papers.” These are documents and materials prepared for a governor’s “deliberative use” which governors can withhold from Freedom of Information Act requests.
Several rejected applicants who spoke with the Mercury last year expressed frustration that they could not participate in the presidential and local elections that were happening and none of them knew why they’d been denied.
Some had also been part of a copy-and-paste rejection letter that was shared in a mass email that was inadvertently sent without blind carbon copying and showed all the recipients’ email addresses, which was forwarded to the Mercury. This triggered a thread of conversations between ex-felons around the state who bonded over their frustrations and shared calls to action.
The issue appeared to impact would-be voters of varying political persuasions. One person on the thread said they identified as a Republican and wanted to be able to vote for Earle-Sears this year, but their application was rejected.
Another person included on the email, Newport News resident Justin Brown, said in an interview last fall, “Once I started talking with everyone else and seeing that this is a pattern of this administration, I wanted to raise some alarm bells.”
He shared his insights with state lawmakers as they began work on an in-progress constitutional amendment to enshrine restoration of rights to those with completed sentences in the state’s constitution. It passed this year and must do so next year before appearing on statewide ballots for final approval or rejection by all voters.
In the meantime, Democratic Attorney General candidate Jay Jones is celebrating the continuation of the once-defeated case and framing it as a victory over the governor and his opponent, current Attorney General Jason Miyares.
“This is an incredible victory for all Virginians, who are one step closer to gaining the transparency they deserve in our government’s critical decision-making processes that determine our fundamental civil rights,” Jones said in a statement.
Jones, who had also been legal counsel on the case before campaigning for his statewide bid, said that he appreciates the NAACP’s efforts to “shed light on what our government is doing behind closed doors.”
As Youngkin prepares to vacate his role as Virginia’s governor, state lawmakers are in the process of advancing the bill that could allow restorations to occur as long as someone has completed their sentence.
The proposed constitutional amendment has advanced with bipartisan support, though not without reservation from some GOP lawmakers, and must pass through them again next year. If voters statewide choose not to accept it, the next governor could continue to uphold Youngkin’s voter restoration process or make changes.
Unlike her signatures expressing opposition to other advancing constitutional amendments, Earle-Sears has not indicated a position on the restoration of voting rights amendment. Spanberger has stated support for all three amendments and that she will prioritize restoring rights to eligible people as governor if the amendment fails.
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