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May 24, 2016

Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons

As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws.  Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy.  Here are the details:

Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.

The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.

Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....

The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.

McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.

“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...

The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...

McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.

The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.

Prior related posts:

May 24, 2016 at 09:12 AM | Permalink


In what universe did Republicans and lawheads grow up. When you have done your time, you have paid your debt to society. In America, in any civilized country, you are supposed to be allowed to repent (in a penitentiary, doing your penitence) so that you can come out and try citizenship again. When did this Puritanical nightmare of a country come to believe that after committing a crime--even a violent one--you not only need to do years in prison, but then you need to have your life destroyed forever after?

Incredible. Tragic. A society is judged by the way it treats its criminals. And so we shall be.

Posted by: Stephen Douglas | May 24, 2016 12:32:07 PM

The "civil death" when you are convicted of a crime idea has ancient roots in this country. It goes beyond (some) Republicans and lawheads, unfortunately.

Posted by: Joe | May 24, 2016 12:56:33 PM

I support felons having voting rights but even I am skeptical that the governors strategy was kosher. If the Executive can do this via the clemency power what else can the Executive do? Why not pardon all murderers en masse? There has to be a limitation somewhere and I always understood it to be the individual analysis.

Posted by: Daniel | May 24, 2016 5:16:16 PM

@Joe: Yes, I know civil death, the Medeival concept took root in Puritan America early on. My point is: Should it prevail? And should those who continue to cry for its absolutely ridiculous, harmful to our society, precepts prevail? Is it the 21st century? Or is it the 11th century. When is it the time for all people to reject this anti-social atrocity? Europeans have rejected it. Are we that different? If so, how? By holding onto the false notion of civil death we relegate our country to the dustbin of history, left in the dust by the social evolution of the rest of enlightened humankind. Is that leadership? Is that the behavior, the policies of an exceptional people? Exceptional in exactly what? In punishment, torture, punitive measures that make all of us unsafe? Who support this? Those thaqt do lose all credibility. They care not for their society. They are the detritus of civilization, more intent on destroying it than in seeing its evolution and its prosperity.It becomes time to repudiate this at every point, at every word spoken by these numbskulls. Civil Death is not just nonsense, it is toxic poison.

Posted by: Stephen Douglas | May 24, 2016 7:25:08 PM

You said this: "When did this Puritanical nightmare of a country come to believe that after committing a crime--even a violent one--you not only need to do years in prison, but then you need to have your life destroyed forever after?"

But, your follow-up is noted.

Posted by: Joe | May 25, 2016 12:04:15 AM

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