Order for Blanket Restoration of Felon Rights Invalid

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The Supreme Court of Virginia grants a writ of mandamus to overturn an Ex­ecutive Order that restored voting and other civil rights to some 206,000 Vir­ginians convicted of a felony who have completed their sentences and periods of supervised release; petitioners – leg­islative leaders and Virginia voters – have standing and the governor’s clem­ency power is broad, but not absolute, a majority of the court says.

General rule

Article II, Section I of the Constitu­tion of Virginia sets out a general rule of law and then provides for an exception: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate au­thority.” (Emphasis added by court). On April 22, 2016, Gov. Terence R. McAu­liffe issued an Executive Order that in­verts this rule-exception sequence. The practical effect of this Executive Order effectively reframes Article II, Section 1 to say: “No person who has been con­victed of a felony shall be disqualified to vote unless the convicted felon is incar­cerated or serving a sentence of super­vised release.”

The Executive Order restored the convicted felons’ rights to vote, to hold public office, to serve on a jury and to act as a notary public. The governor in­dicated he would issue similar orders at the end of each month to restore the rights of Virginians who had been convicted of a felony but who had since completed their sentences of incarcera­tion and supervised release. The gover­nor issued such orders on May 31, 2016, and on June 24, 2016.

The major question before the court is whether the executive order “suspends” a general principle of voter disqualifi­cation and replaces it with a new prin­ciple of voter qualification that has not yet received the “consent of the repre­sentatives of the people.”

Never before have any of the prior 71 governors of Virginia 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. To be sure, no Virginia governor, 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 this case, Gov. McAuliffe asserts that his clemency power in this matter is “absolute” under Article V, Section 12 of the Constitution of Virginia. We re­spectfully disagree. The clemency power may be broad, but it is not absolute.

Standing

Whether petitioner – the Speaker of the Virginia House of Delegates, Major­ity Leader of the Virginia Senate and four other Virginia registered voters – have standing to seek mandamus and prohibition relief is a threshold issue and a question of law. The standing is­sue here implicates the capacity of Vir­ginia citizens, who have a legal right to vote, to challenge an executive action which allegedly allows for the registra­tion of unqualified voters.

Applying the principles enunciated in Wilkins v. West, 264 Va. 447 (2002),we conclude that each petitioner, as a Vir­ginia registered voter planning to vote in the 2016 general election, is directly affected by the allegedly unconstitu­tional expansion of the statewide elec­torate and has standing to challenge the Executive Order and respondents’ registration of allegedly unqualified voters.

We find no merit in respondents’ argu­ment that Va. Code § 24.2-431 provides the exclusive remedy for petitioners’ allegations and that recognizing their standing in this action would improper­ly circumvent that statutory remedy.

Historical view

In 2010, then-Gov. Tim Kaine con­cluded the voter-disqualification provi­sion did not authorize a “blanket use” of the restoration power to “benefit un­named individuals.” Because his view explains the uniform practice of all gov­ernors to date, the political process has been steadily churning on this issue for decades. Since the 1980s, multiple un­successful attempts have been made to amend the Virginia Constitution on the subject of restoration of civil rights. None of these efforts would have been necessary if the power sought had al­ways existed, unnoticed and unclaimed, since 1870, as Gov. McAuliffe contends.

Further, the governor’s assertion of “absolute” power to issue his exec­utive order runs afoul of the separa­tion-of-powers principle protected by Article I, Section 7 of the Virginia Con­stitution. The governor’s executive or­der has the attributes of an ultra vires assertion of the suspending power that has been forbidden by our Constitution since 1776. We declare the Executive Order issued on April 22, 2016, as well as those issued on May 31, 2016, and June 24, 2016, to be in violation of Ar­ticle I, Section 7 (the anti-suspension clause) and Article II, Section 1 (the voter-disqualification provision) of the Constitution of Virginia.

Writ of mandamus issued.

Dissent

Mims, J.: Because the court’s holding that petitioners have standing is not supported by our precedents limiting the extraordinary remedy of manda­mus, and because the General Assembly by statute has established the standing requirement and mechanism for chal­lenges to voter registration, I must re­luctantly dissent.

Petitioners have not identified any historically recognized common law right of action to challenge the registra­tion of voters – reinstated or otherwise. Nor can they rely on a statutory right.

I would defer a decision in this mat­ter to allow the parties to take evidence regarding the potential impact of the Executive Order on an expedited basis, should they so choose and thereafter provide further briefing on the question of standing.

Powell, J., joined by Goodwyn, J.: I agree with the majority that the dom­inant role in the articulation of public policy in the commonwealth rests with the elected branches. I also agree that our role is not to judge the desirability or the wisdom of policy choices. Finally, I agree that our proper role is to inter­pret the law. I would further add that, in the present case, our role is limited to interpreting the law with regard to Gov. McAuliffe’s April 22, 2016, Executive Order as written and the subsequent similar orders that are now before us.

I disagree with the majority’s conclu­sions 1) that petitioners have standing to seek mandamus and prohibition re­lief; 2) that the Executive Order was unconstitutional and constituted “an unlawful executive suspension of laws” in contravention of Article I, Section 7 of the Constitution of Virginia; and 3) ordering all election officials to ignore the Executive Order and rescind any voter rights restored as a result of the Executive Order.

I would hold that the Executive Or­der and subsequent similar orders do not violate the Constitution of Virginia and therefore I would deny the writs of mandamus and prohibition.

Howell v. McAuliffe (Lemons) No. 160784, July 22, 2016; Upon a Petition for Writs; Charles J. Cooper, Michael W. Kirk, David H. Thompson, William C. Marra, Haley N. Proctor for appellant; Stuart A. Raphael, Solicitor General; Mark R. Herring, AG; Trevor S. Cox, Dep. Solicitor General; Matthew R. Mc­Guire, AAGA; Anna T. Birkenheier, AAG, for appellee. VLW 016-6-059, 63 pp.