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July 23, 2016

Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights

As reported in this local article, the "Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office." Here is more about the ruling:

In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons. The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.

As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.

McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.

The court majority found that McAuliffe did indeed overstep his authority. “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion. “To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”

In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.

“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”...

Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law. “He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”

In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.” Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.

Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact....

Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground. “The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.

McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority....

The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va. Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists. The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.

The full opinion from the split Virginia Supreme Court is available at this link.

July 23, 2016 at 04:19 PM | Permalink


Logically, I agree with the majority here yet at the same time I am no way surprised by the fact that the governor is now going to robo sign 13,000 applications. I don't know what the right answer is, honestly. On one hand I agree that the governor should be required to make a case by case analysis but on the other hand in the modern era what does that even mean? It is difficult for me to fathom how the VA Constitution, for example would require the governor to spend an hour on each case. On the other hand, failing to cabin the governor's power in some way makes today's decision nothing more than a pro forma requirement. What is the point of the drama if the governor can dodge it so easily?

Sigh. This is why we can't have nice things.

Posted by: Daniel | Jul 23, 2016 5:54:50 PM

I can understand how something can be unconstitutional because it make something too easy, though if the workaround is not that hard, that might not amount to much.

The opinion started with one of those "we really don't want to but are compelled to strike this down" prologues that is a bit hard to take. Maybe, it's totally on the level, but tends to be hard to take totally seriously. Taking everything into consideration, including the ability to work around, tend to think separation of powers disputes should be settled politically if it is so close that it is turns on one vote. Individual rights cases are of a somewhat different caliber.

Posted by: Joe | Jul 23, 2016 8:05:14 PM

Daniel, the answer is that the Va Constitution presupposes that elected officials will conduct themselves in the spirit of the requirements. McAuliffe is a typical 'rat who doesn't care about the rule of law.

"Taking everything into consideration, including the ability to work around, tend to think separation of powers disputes should be settled politically if it is so close that it is turns on one vote."

Silliness, if I ever saw it.

Posted by: federalist | Jul 26, 2016 10:01:51 AM

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["non-silliness"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the [comment] involved in this case is not that."

(Justice Stewart did flesh out his definition in his dissenting opinion in Ginzburg v. United States, something that tends not to be referenced, since it sort of ruins the joke.)

Posted by: Joe | Jul 26, 2016 4:54:16 PM

Joe, if you can't see how dumb the idea of thinking that a majority of judges on a court should not act when a political actor has violated the Constitution to affect an election because a minority wants to ratify the lawlessness, I can't help you.

Posted by: federalist | Jul 26, 2016 5:15:19 PM

It assumes the conclusion to say that it "violated the Constitution" especially "taking everything into consideration." Traditionally, judges have assumed political actors did not violate the Constitution unless there was a very clear case. Their colleagues narrowly dividing on the question would be one bit of evidence that the matter is unclear. Separation of powers disputes particularly are left to the other branches given each branch has means of defense. A single individual however might need more protection. This is not something only I think. It's standard stuff.

Posted by: Joe | Jul 26, 2016 6:06:13 PM

Courts are called upon to deal with separation of powers all the time. The issue here is the court's interference with a core function of the executive, i.e., restoration of voting rights.

As for the assumption--here, the issue is cut and dried--there is no dispute about the facts or anything like that--the question is a quintessential legal one.

What's laughable is that you think that courts should shrink from doing their duty (remember, McAuliffe's actions are clearly aimed at influencing an election) simply because a minority would rule the other way.

Posted by: federalist | Jul 27, 2016 11:12:59 AM

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