After his blanket felon-rights restoration order was struck down by the Supreme Court of Virginia July 22, Gov. Terry McAuliffe’s administration said it would move quickly to ensure thousands of felons hoping to cast ballots in November’s election would be able to vote.
By midweek, however, a news report questioned whether McAuliffe would be able to act as fast as predicted.
A McAuliffe spokesman said the administration expected by the end of last week to restore the voting rights of the roughly 13,000 felons who registered to vote under the governor’s April executive order.
The Supreme Court invalidated the order, saying Virginia governors cannot restore rights en masse, but must handle restoration on a case-by-case basis.
The McAuliffe spokesman said the Secretary of the Commonwealth’s office would process each felon’s paperwork individually to comply with the ruling. After those were completed, the administration said it would move to the restore the rights of the other felons it had identified.
Despite McAuliffe’s announced schedule for individual action on rights restoration, the Daily Press of Newport News reported July 27 that the Secretary of the Commonwealth’s office was still trying to determine how the case-by-case process would work.
McAuliffe was in Philadelphia for the Democratic National Convention during the early part of the week.
Court split on governor’s action
In a 4-3 decision, the Supreme Court ordered the state to cancel the registrations of the more than 11,000 felons who had signed up to vote under the governor’s April executive order and subsequent ones, which also allowed felons to run for public office, serve on a jury and become a notary public.
Top Republicans, who sued the governor over the order, called the decision “a major victory for the Constitution, the rule of law and the Commonwealth of Virginia.”
Their attorney, Charles Cooper, told the justices during oral arguments that the fact that no other Virginia governor had taken such a sweeping action proved the power did not exist.
McAuliffe’s administration and backers countered that there’s nothing in the state constitution that says that governors must restore a person’s rights on an individual basis.
The Supreme Court rejected that argument, calling it “overstated at best.”
Republicans accused McAuliffe of trying to add more minorities to the voting rolls ahead of the November election to help ally Hillary Clinton win the critical swing state of Virginia for the Democrats. Nearly 50 percent of those whose rights were restored are black, even though African-Americans make up just about 20 percent of Virginia’s population, according to an analysis done by the governor’s office.
McAuliffe denied his action was politically motivated, saying he believed that people who served their time deserve a second chance. He touted his action – which was backed by groups like the Virginia State Conference of the NAACP – as a way to help undo the state’s long history of trying to prevent African-Americans from fully participating in the democratic process
Majority looks to prior governors’ views
Chief Justice Donald W. Lemons, who wrote the opinion for the court, said the claim that governors can restore rights en masse is “irreconcilable” with the requirement that governors must report to lawmakers the “‘particulars of every case’ and state his ‘reasons’ for each pardon.”
“This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons,” Lemons wrote.
The justices stressed that previous governors have sided with the Republicans position, pointing to a letter written by a counselor to Democratic Gov. Tim Kaine in 2010 that said a blanket order restoring voting rights would be a “rewrite of the law.”
While the justices accepted McAuliffe’s argument that the novelty of his action doesn’t necessarily mean it’s unconstitutional, they said they consider Republicans’ historical argument to be “highly persuasive.”
Lemons was joined by Justices Elizabeth A. McClanahan, D. Arthur Kelsey and Stephen R. McCullough in his majority opinion.
Justice William C. Mims dissented “reluctantly” to argue that the petitioners had not established standing to challenge the governor’s order. Mims said he would defer a decision to allow the two sides to develop evidence on the standing issue.
Justice Cleo E. Powell, joined by Justice S. Bernard Goodwyn, concluded the Republican petitioners could not establish standing to pursue a writ of mandamus.
“Indeed, the petitioners’ vague voter dilution argument fails to point to any concrete evidence showing that their votes will be diluted,” Powell wrote.