By Christopher Zoukis

Gov. Terry McAuliffe

A sharply divided Virginia Supreme Court late last month reversed an executive order from Democratic Gov. Terry McAuliffe’s restoring voting rights for about 206,000 ex-felons, saying the April 22 order exceeded his lawful authority under the state’s constitution.

The 4-3 decision on July 22 upheld a challenge filed a month earlier by Republican leaders of the state legislature. Even though the court held McAuliffe’s sweeping order invalid, the governor says he will restore ex-felons’ voting rights, even if he has to issue 206,000 individual orders.

McAuliffe’s sweeping “Restoration of Rights” order would have categorically restored voting rights for all Virginia ex-felons who have completed their sentences plus any parole or probation. Besides voting rights, his order would also have restored the right to serve on juries, hold public office, and become a notary public. It explicitly stopped short of restoring the right to own guns, but eased the process for applying to have gun rights restored

The court’s majority opinion, delivered by Chief Justice Donald Lemons, interpreted a section of the state constitution providing persons convicted of a felony loses their right to vote until their civil rights are officially restored, along with another provision which prohibits any suspension of laws or their execution without the consent of elected representatives.

Although Gov. McAuliffe contended he had “absolute” power to make clemency decisions –despite another provision requiring him to tell the state legislature his “reasons” for any pardon he issues, along with the “particulars of every case” — the court majority disagreed.

It noted none of the state’s 71 previous governors in its 240-year history had ever issued a clemency order of any kind “to a class of unnamed felons without regard to the nature of their crimes or any other individual circumstance,” nor had any previous governor ever argued he had unchecked clemency powers. Frequent attempts to change the constitution’s disenfranchisement of felons had never been approved by the legislature.

The court also observed all previous governors who had considered whether the governor’s clemency powers were unlimited had decided against that position. Among McAuliffe’s predecessors who had decided a governor is not empowered to issue blanket clemency orders, the court majority noted, was current Senator (and Democratic vice-presidential nominee) Timothy Kaine. Although Kaine disliked felon disenfranchisement, he recognized removing it by executive order would be rewriting the state constitution, not exercising his clemency powers.

McAuliffe, a former Democratic National Committee chairman, issued his executive order shortly after the Virginia legislature adjourned for the year, declaring the action to be his “proudest moment” since becoming governor. He also attacked Republicans for what he termed their “overtly political action” in suing to block his rights restoration order. For their part, state GOP leaders branded McAuliffe’s action as intended to produce new voters likely to back the White House campaign of Hillary Clinton, whose unsuccessful 2008 campaign McAuliffe headed.

The court’s decision also ordered state election officials to drop from the rolls of qualified voters approximately 13,000 former felons who had registered to vote after the governor’s initial April 22 order and two monthly updates the governor subsequently issued. But McAuliffe said if he’s not allowed to issue a blanket rights restoration, he will proceed with issuing individual restoration orders.

 

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).