Virginia Republicans are considering efforts to block Democratic governor Terry McAuliffe’s new executive order restoring the voting rights of the state’s former felons. McAuliffe’s order, announced on Friday, would give nearly 206,000 violent and nonviolent convicts who have served their time the ability vote.
Speaker of the Virginia House of Delegates Bill Howell, a Republican from the Fredericksburg area, told THE WEEKLY STANDARD there was little the legislature could do to stop the executive action. The state’s constitution, he said, allows governors broad clemency power. But, Howell said, that power doesn’t include blanket clemency in the manner of McAuliffe’s order. Some Republicans are considering pursuing a legal challenge to the order.
Howell said there are already lawyers doing pre-trial discovery work to determine who might have standing in such a lawsuit. “It’s a question for the courts,” he said, not the legislature.
Rob Bell, a Charlottesville-area Republican delegate who is running for attorney general in 2017, told TWS the question before any litigation proceeds is who—county clerks, members of the assembly, or individual voters—would have standing in a suit. The primary issue, Bell said, is the constitutionality of McAuliffe’s order and the fact that the legislature was unable to debate making changes to the law.
Virginia is one of the few states where convicted felons are not qualified to vote or enjoy other civil rights (like serving on a jury or running for office), unless granted clemency in individual cases by the governor. Past governors, both Democratic and Republican, have granted clemency in this way, sometimes on a large scale. In 2013, Republican governor Bob McDonnell (now a convicted felon himself) announced more than 6,800 nonviolent ex-felons had their voting rights restored under his administration.
But neither McDonnell nor his Democratic predecessor Tim Kaine issued blanket clemency for felons, nor did either governor pursue clemency for violent offenders. In fact, legal counsel to both governors advised them that blanket clemency was in violation of the Virginia constitution. McDonnell’s Republican attorney general, Ken Cuccinelli, headed an advisory commission that published a written report in 2013 declaring the governor “cannot institute by executive order an automatic, self-executing restoration of rights for all convicted felons” but “may exercise his discretionary clemency power in a more expansive manner to restore civil rights on an individualized basis.”
And in 2010, Kaine’s counsel Mark Rubin wrote a letter to the head of the Virginia chapter of the American Civil Liberties Union, who had requested Kaine restore voting rights to ex-felons in his final days in office. Rubin wrote that he and the governor had concluded doing so would “not be proper” because doing so would be an incorrect reading of the constitution’s clemency provision and would “rewrite the law” of the state through executive order. “[The] notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling,” Rubin wrote.
Beyond the constitutionality questions, though, Bell said he’s concerned about the “poisonous” policy implications of McAuliffe’s order, which he notes is written broadly enough to apply to felons who may have served time but have not paid restitution to their victims—contradicting McAuliffe’s own defense that all those with their rights restored will have “paid their debt to society.”
