For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote. When the United States started to readmit the rebellious slave states after the Civil War, Congress feared that the former Confederate powers would invent new crimes with which they could disenfranchise Black Americans. To help ensure the right to vote across the Commonwealth, Congress passed the Virginia Readmission Act of 1870. That Act prevents Virginia from changing its constitution to deprive any citizen of the right to vote, “except as a punishment for such crimes as are now felonies at common law.”
Several times, Virginia has rewritten its constitution contrary to the statute. Each new version has disenfranchised people for offenses other than felonies at common law, and Virginia now automatically disqualifies all felons from the ballot box.
The Plaintiffs, Tati Abu King and Toni Heath Johnson, have lost their right to vote under this provision. They brought the instant class action to enjoin election officials from enforcing Virginia’s felon disenfranchisement provision.
The Plaintiffs proffered two expert witnesses, Prof. Carissa Hessick and Prof. Edward Ayers. The Defendants moved to exclude both.
Law And Legal Expert Witness
Carissa Byrne Hessick received her undergraduate degree from Columbia University in 1999 and her law degree from Yale Law School in 2002. She has been researching and teaching criminal law since 2005. Currently, she is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.
Prior to joining the faculty at the University of North Carolina, she served as a Professor of Law at the University of Utah’s S.J. Quinney College of Law, a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Climenko Fellow and Lecturer on Law at Harvard Law School. From January through May of 2024, she served as the Fulbright Distinguished Chair in Arts, Humanities, and Social Sciences at the Australian National University.
History Expert Witness
Edward L. Ayers is a professor at the University of Richmond. He is the Tucker-Boatwright Professor of the Humanities and President Emeritus at the University of Richmond, as well as the executive director of New American History and former co-editor of American Panorama, two digital projects based at the University. Ayers is also a co-host of BackStory: the American History Podcast, a nationally syndicated podcast, made possible through Virginia Humanities.
Discussion by the Court
Hessick
Hessick analyzed the history of Reconstruction and concluded that the law of the Reconstruction Era distinguished between common law felonies and statutory ones.
From this premise, Hessick offered a definition of “felonies at common law” and compiled a list of such felonies at the time of Reconstruction. Hessick then used comparative techniques to categorize Virginia’s modern felonies as common law felonies or not common law felonies, according to whether today’s crimes descend from Reconstruction Era common law felonies.
First, the Defendants argued that the Court must exclude Hessick’s evidence because she offered an inadmissible legal conclusion by defining the phrase “felonies at common law” in the Virginia Readmission Act. Second, the Defendants argued that Hessick used an unreliable methodology in her report because she could not classify some modern felonies, and her first-of-its-kind analysis made peer review difficult.
Hessick offered a reliable analysis generated largely by traditional, primary-source historical research. Moreover, Hessick’s conclusions did not affect the result in this case: The Court has reached its own conclusion about the law. Again, the Rule 702 inquiry here “is much less critical . . . because there is little danger of prejudicing” the Court sitting as both trier of fact and law—and the Court, which has now heard “the expert’s testimony or opinion,” has determined it has no effect on the Court’s legal analysis.
Ayers
As with Hessick, the Defendants contended that Ayers presented an inappropriate legal conclusion on the meaning of the disenfranchisement provision in Virginia’s Constitution.
The Defendants further labeled Ayers’s evidence irrelevant because it focuses on “racial discrimination in the south,” and “[P]laintiffs are not bringing a racial-discrimination claim” or claims involving other states’ regimes. The Defendants also questioned Ayers’s methodology.
The Court’s analysis of Hessick’s relevance applied with equal force here. To the extent the Court has relied on Ayers’s offerings, they have merely provided a largely undisputed context of Congress’ concerns about the expected legal shenanigans of the readmitted states: Ayers comments on the legal and political regime in place during the Reconstruction Era, colored by unsurprising discriminatory motivations.
The Court acknowledged that Ayers considered racial history in and beyond the Commonwealth’s borders. But again, “because there is little danger of prejudicing the judge,” the Court can determine what weight this portion of Ayers’ evidence deserves in resolving any factual disputes.
Finally, the Court rejected the Defendants’ allegations that Ayers departed from his “normal methodology” in preparing for this case. Ayers consulted with and cited to a variety of historical sources. Ayers further detailed his reliable methodology, at length, during a deposition.
Held
The Court denied the the Defendants’ motions to exclude the testimony of Professor Carissa Byrne Hessick and Dr. Edward L. Ayers.
Key Takeaway
An expert may meet Rule 702’s relevancy requirement even if he or she offers a legal conclusion. In this case, Ayers considered racial history in and beyond the Commonwealth’s borders. The complex legal concepts involving voting rights and constitutional law make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury.
Case Details:
| Case Caption: | King V. O’Bannon |
| Docket Number: | 3:23cv408 |
| Court Name: | United States District Court, Virginia Eastern |
| Order Date: | January 22, 2026 |
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