Changing the Virginia Constitution is difficult by design. A proposed amendment must twice pass the General Assembly — doing so in consecutive terms — before voters decide if it will be enshrined in the commonwealth’s governing document.
Lawmakers began that process in January by advancing three amendments mostly along party lines, with the Democratic majority approving measures that Republicans largely opposed. The fate of those proposals hinge on November’s election, lending greater weight to the decisions voters will make this fall.
The authors of Virginia’s Constitution, like the framers of the federal Constitution, recognized the importance of an amendment process for future generations to make structural changes to the commonwealth’s system of government. But like the Founding Fathers, they also thought it important that the process require considerable effort.
As such, any proposed amendment must first pass the General Assembly before an election — either for the House or for the House and Senate — ushered in a new legislature. Then the amendment must win approval a second time before it appears on the ballot, where voters decide whether it is accepted or rejected.
In recent years, the amendment process has largely been used to make small tweaks to the Constitution, generally about tax policy. Aside from the 2020 vote to approve a redistricting commission to handle reapportionment after the 2020 Census, Virginians have rarely been asked to consider truly consequential changes.
However, the measures approved this year are different.
The first amendment, HJ1, is a direct response to the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which effectively overturned the court’s landmark 1973 decision in Roe v. Wade. It asserts that “every individual has the fundamental right to reproductive freedom and that the right to make and effectuate one’s own decisions about all matters related to one’s pregnancy cannot be denied, burdened, or otherwise infringed.”
Virginia is one of only two states where neither the right to an abortion or restrictions to the procedure are enshrined in the state Constitution. The proposed amendment would establish that right and ensure that reproductive access would not be a political football tossed back and forth in each legislative election.
The second amendment, HJ2, addresses another area in which Virginia’s law deviates sharply from that of other states. It would establish a fundamental right to vote and would automatically restore that right to individuals who are convicted of a felony but who have completed their sentences.
Currently that power is vested in the governor, and each governor has used that authority as he sees fit. While three former governors — Republican Bob McDonnell and Democrats Terry McAuliffe and Ralph Northam — sought to expedite the restoration of rights for thousands of formerly incarcerated Virginians, Gov. Glenn Youngkin has been far stingier, throttling the process and restoring the civil rights of far fewer people than his predecessors.
Virginia is the only state which vests the governor with that power; other states restore civil rights automatically upon the completion of a sentence. This amendment would bring the commonwealth in line with its peers.
Finally, the third amendment, HJ9, would repeal the Marriage Amendment approved by voters in 2006 that defines marriage as being between one man and one woman, and establish a fundamental right for two individuals to marry, including people of the same gender. While the Supreme Court’s 2015 decision in Obergefell v. Hodges effectively nullified Virginia’s prohibition on same-sex marriage, the court’s willingness to overturn Roe suggests that established precedent may not be as firm as once thought.
While the language of these measures won’t appear on the ballot this fall, the issues are very much part of this year’s legislative campaign since the balance of power in the General Assembly will determine whether these proposals receive another vote.
The House elections themselves are consequential and voters have a responsibility to make informed choices when they head to the polls. But these constitutional amendments further raise the stakes, and should be an important consideration for those who cast a ballot this fall.
