Dear friend:
Tomorrow, July 19, at 9:00 a.m., the Virginia Supreme Court will hear oral argument in our suit to stop Governor McAuliffe's blanket restoration of rights to felons. We will be at the Court early, but doors open at 7:30 a.m., and the public is welcome. The Court is at 100 North Ninth Street, Richmond, just down the street from the Capitol.
What can you expect to hear?
Background
The Virginia Constitution prohibits a felon from voting "unless his civil rights have been restored by the Governor." A separate provision gives the Governor the power to "remove political disabilities consequent upon conviction." Restored rights include the right to vote and the right to sit on a jury, and past governors have only used this power to restore rights, but only on a case-by-case basis.
On April 22, McAuliffe issued an executive order to restore these jury and voting rights to every felon who had completed his prison sentence and any post-release supervision. Because he treated all felons the same, the Governor didn't make allowances for the violence of the offense, the number of offenses, or even whether an offender had paid his victim's medical bills.
Those of us in the General Assembly saw this order as unconstitutional overreach and decided to sue to block it. We found two legislators and four Virginia voters who agreed to serve as petitioners. Because of the need for an immediate resolution, we filed directly in the Virginia Supreme Court. If the Court rules in our favor, the blanket restoration would be invalidated, though McAuliffe would still have the authority to restore rights on a case-by-case basis.
Subsequent Developments
After issuing his order, McAuliffe created a list of newly enfranchised felons for registrars. However, reporters have found numerous errors in the list, including a murderer serving a life sentence, two fugitives who committed sex crimes against minors, and 132 sex offenders locked up in Virginia's Nottoway rehab center. A FOIA request also proved that McAuliffe gave advance notice to Democratic voter drive groups, while keeping registrars and prosecutors in the dark.
Legal Arguments
The Constitution expressly prohibits a felon from voting unless "his" rights have been restored. Every prior Governor has interpreted this to mean that restoration can only occur after individualized review, and legal advisors to Governor Kaine and Governor McDonnell explicitly rejected the constitutionality of a blanket restoration.
Attorney General Herring argues that the Constitution grants the Governor the power to decide whether, when, and how to grant clemency. Herring also encourages the Court to dismiss the suit on procedural grounds.
What ought to happen?
First, the Court should take this case and resolve the issue. While a court can often find procedural excuses to avoid ruling, Virginia has pending jury cases (including a death penalty case) and the coming 2016 election. Virginia needs to know – right now – if McAuliffe's order is Constitutional.
Second, the Court ought to rule in our favor. When considering how to apply two constitutional provisions, the Supreme Court is obliged to give both of them meaning and force; it should not adopt an interpretation that would eliminate part of the Constitution. To allow McAuliffe to perform a blanket restoration would enable him to ignore the felon voting prohibition altogether and would effectively rewrite the Constitution.
The best way to give meaning and force to both these provisions is for the Court to allow restoration, but only on a case-by-case basis. Such a ruling would prevent unconstitutional overreach while preserving the Governor's clemency power. As we say in our brief, "Governor McAuliffe is entitled to disagree with the policies of Virginia's Constitution, but he is not entitled to nullify those he dislikes." You can read the brief, here.
Hope to see you tomorrow at the Court!
Sincerely,
Rob Bell
Delegate, 58th District | |
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