Virginia Lawyers Weekly VA Lawyers Weekly
Justice William Mims, R, asks a question during a hearing before the Virginia Supreme Court on Tuesday, July 19, in Richmond. (Photo by Joseph Mahoney, Richmond Times-Dispatch)
A Republican legal challenge to Democratic Gov. Terry McAuliffe’s politically charged blanket rights restoration for convicted felons could be decided on how the case reached the doors of the state Supreme Court.
The justices conducted oral arguments in the voting rights case Tuesday. It was one of two constitutional clashes heard at a special summer session of the court.
Standing questioned
While GOP leaders contend McAuliffe tossed both law and tradition to the wind with his unprecedented mass declaration of rights restoration, a state lawyer urged the court to first focus on whether legislators used the proper procedure to object.
“Standing is the threshold question,” state Solicitor General Stuart Raphael told the justices. “There is no cognizable legal injury here,” he said.
Republicans took their objection directly to the Supreme Court by seeking a mandamus order to cancel the new voter registrations authorized by McAuliffe. They claim all voters have been harmed by dilution of their votes with an unwarranted expansion of the electorate.
“It is inherent in the right to vote to have the right to cast a full vote,” said Washington lawyer Charles J. Cooper on behalf of the GOP plaintiffs, responding to an early question about standing from Justice Cleo E. Powell.
Challenge to blanket order
Aside from the standing question, the attorneys also skirmished on the constitutional issue of the governor’s power to grant mass clemency.
Republicans insisted the Constitution does not grant the authority to restore rights on an “en masse, blanket basis.”
“Under our constitution, felons are not fungible. It is the exceptional felon that qualifies for restoration,” Cooper said.
He pointed to constitutional language requiring governors to report to the General Assembly the “particulars of every case” when granting clemency.
“It’s hard to imagine language that more clearly implies that the governor must act on a case-by-case basis,” Cooper said.
But the overall clemency power is broadly stated, Raphael responded.
“There’s no hook in that language where you can hang their arguments,” he said.
List remains secret
While lawyers for both sides agreed that the issues before the court did not involve McAuliffe’s refusal to release a list of 206,000 felons whose rights he deemed restored, at least two justices expressed concerns about the secret nature of the list.
“The governor’s failure to provide that public document may be the fulcrum on which standing turns,” said Justice William C. Mims. “I, for one, do not understand how a document of such importance can be shielded from the litigants and from the citizens of Virginia,” he added.
Justice D. Arthur Kelsey also questioned why the list could not be disclosed.
The governor’s April 22 order declared that every Virginia felon who had completed their sentence and any court-ordered requirements as of that date could vote, run for office, serve on a jury and become a notary. Registrars are using a look-up feature tied to the list of 206,000 names to determine who is eligible.
More than 11,600 people have registered to vote as a result of the order.
Cooper said after the hearing that he hopes for quick action by the court. Registrars send absentee ballots for the November election on Sept. 25, he said.
Another legal action also aims to undo McAuliffe’s blanket restoration order. The conservative legal advocacy group Judicial Watch filed a challenge in federal court.
Tuesday’s hearing of the restoration challenge filled the courtroom, with folding chairs added to increase capacity. Among the spectators was a man in colonial garb, capped with a tricorn hat. (He removed the hat before the gavel sounded.)
Several dozen supporters of the rights restoration order demonstrated outside the state Capitol before the hearing.
Legislative privilege tested
The justices heard a second case Tuesday with constitutional implications.
A group of legislators and their Capitol staff are resisting an effort to force disclosure of planning materials for a Senate redistricting map.
They contend the courts should test legislation by what it says, not by the largely unseen process behind it.
The voters challenging the redistricting map contend legislative privilege does not extend to paid political consultants and other third parties.
Additional reporting by the Associated Press. Updated July 20 to correct Mims quote.
