On June 23, the U.S. Supreme Court rejected an attempt by Virginia state government to derail a new type of attack on the state’s ban on ex-felon voting. In 1870, when Congress passed a bill readmitting Virginia to the union, it included a provision that Virginia’s Constitution “must never be changed so as to deprive any citizen or group of citizens the right to vote”, except that it said Virginia could continue to bar voting by persons who had committed a common law felony.

Back in 1870, there were no drug laws. Two Virginia voters, who had been convicted of a drug felony, brought a federal lawsuit saying that because their crimes were not felonies in 1870, therefore under the terms of the readmission act, Virginia could not deprive them of the ability to vote. The lower courts agreed to let the case move forward. Virginia tried to get the U.S. Supreme Court to short-circuit the lawsuit, saying that the 1870 readmission law cannot be enforced by a lawsuit brought by individuals. But the U.S. Supreme Court refused Virginia’s request.

If the lawsuit eventually wins, similar lawsuits will probably be brought against several other southern states whose re-admission law had a similar provision. The case is O’Bannon v King, 24-964.