In Virginia, Terry McAuliffe Breaks the Constitution to Plump the Democratic Vote

In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.

McAuliffe believes that ex-felons can be trusted to make decisions in the ballot booth and the jury box but apparently not to own a gun. He draws the line at restoring their Second Amendment rights; that would be a bridge too far. His order specifically does not restore their “right to ship, transport, possess, or receive firearms.” And while his order requires that felons complete probation and parole before enjoying restoration of their rights, it applies regardless of whether they have paid any court fines or restitution to victims.

What McAuliffe entirely dismisses is the principle that if you won’t follow the law yourself, you can’t demand a role in making the law for everyone else, which is what you do when you vote. Restoring a felon’s right to vote should be done not automatically, as soon as he has completed his sentence, but carefully, on a case-by-case basis, after he has shown that he has really turned over a new leaf. The unfortunate truth is that many people who walk out of prison will be walking back in; recidivism rates are high. We have both testified before Congress and written about this problem. Governor McAuliffe may be happy as long as the ex-felons who can now vote just don’t walk back into prison before November.

Having a waiting period, examining each ex-felon’s application for restoration of rights carefully and individually, and differentiating between violent and nonviolent crimes is exactly the system that Virginia had–at least until Friday’s order. In a three-page summary released by the governor’s office, McAuliffe asserts that any claim that he doesn’t have the authority to grant a blanket restoration of rights is “far-outside the weight of constitutional authority across the nation and would read into the text of the Virginia Constitution words that simply are not there.” This is just legal gibberish–the weight of constitutional authority “across the nation” has no bearing on interpreting the Virginia constitution. McAuliffe is reading into that constitution authority he does not have.

That isn’t just our opinion; it is the opinion of prior governors and attorneys general of both political parties. For example, on January 15, 2010, Mark Rubin, the counselor for former Virginia governor Tim Kaine (D., now a U.S. senator), sent a letter on the governor’s behalf to the ACLU, saying that Kaine did not have the executive power “to grant a blanket restoration of voting rights,” which the ACLU had requested. Kaine supported restoration of voting rights but refused to act because his counsel’s view was that the “better argument” was that the powers in the Virginia constitutional provision on clemency (Article 5, Section 12) “are meant to apply in particular cases to named individuals.” In fact, “a blanket order restoring the voting rights of everyone would be a rewrite of the law. . . . The notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

Similarly, then–attorney general Ken Cuccinelli (R.) appointed the Rights Restoration Advisory Committee to examine this issue. The committee included not only several Commonwealth Attorneys (i.e., the district attorneys of Virginia counties) and a professor from George Mason University but also Ashley Taylor Jr., a former commissioner on the U.S. Commission on Civil Rights, and Paul Goldman, the former senior adviser to Doug Wilder (D.), the first African-American governor of Virginia.

On May 10, 2013, the committee issued a report concluding that the governor does not have constitutional authority to “institute by executive order” a complete “restoration of rights for all convicted felons in the Commonwealth of Virginia.” Why? Because his clemency power in Article 5 must be harmonized with Article 2, Section 1, which provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored.” If, instead of acting individually to consider each “person” and “his civil rights,” the governor issues a blanket restoration, such “altering [of] the public policy of the Commonwealth as regards the disenfranchisement of persons convicted of felonies clearly would be a legislative act, not an administrative act.” It would be “difficult” for a court to “sustain a Governor’s exercise of [his] clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided.”

Yet that is exactly what McAuliffe attempts to do through his executive order, in a violation of the separation of powers. {snip}

As was completely predictable, McAuliffe played the race card on Friday, saying he was rectifying Virginia’s “long and sad history” of suppressing African-American voting power. This is a bogus and demagogic claim about a policy that applies equally to all felons regardless of race and that was established when black Virginians couldn’t even vote. {snip}

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It is estimated that McAuliffe’s action will add 3.8 percent to the 5.4 million registered voters in Virginia. {snip}

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