When Virginia was readmitted to the Union after the Civil War, the act said that as a condition of being readmitted, Virginia could not newly deprive anyone of the right to vote, except that persons who had committed “felonies at common law” could be deprived of the vote. In 2023 a federal lawsuit was filed by Virginia felons who had committee drug law feloonies, arguing that they should be allowed to register to vote under the terms of the 1870 readmission act.

Virginia objected that the readmission act could not be used as a basis for a lawsuit, but lost on that in the Fourth Circuit. The state then appealed to the U.S. Supreme Court, but that court refused to hear the state’s appeal.

The case is back in U.S. District Court. Here is the latest brief, which was filed by the plaintiffs. It argues that the only “felonies at common law” in Virginia in 1870 were: arson, burglary, jail escape, homicide, larceny, mayhem, rape, robbery, sodomy, suicide, and treason. Therefore, the plaintiffs argue, the state can’t prevent people from registering to vote on the grounds that they committed a felony not on that historic list.

The case is King v O’Bannon, e.d., 3:23cv-408. The case is before Judge John A. Gibney, Jr., an Obama appointee.