This article actually gives a lot of good context regarding the issue.
Responding to the announcement, Brian Coy, a spokesman for McAuliffe, a Democrat, said: The Governor is disappointed that Republicans would go to such lengths to continue locking people who have served their time out of their democracy. While Republicans may have found a Washington lawyer for their political lawsuit, they still have yet to articulate any specific constitutional objections to the Governor exercising a power that Article V Section 12 clearly grants him.
That appears to refer to the
following language in the states constitution: The governor shall have power
to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution.
To be clear, this whole conflict is less about McAuliffe passing a law that is unconstitutional and more about whether the interpretation that his action is based on is unconstitutional.
A Republican lawsuit would be the second major legal fight over Virginias election rules this year. Democrats are challenging the states 2013 voter ID law.
The disenfranchisement issue has come up before in recent history, except the tables were turned.
His predecessors and previous attorneys general examined this issue and consistently concluded Virginias governor does not have the power to issue blanket restorations, Norment said. By doing so now with the acknowledged goal of affecting the November election, he has overstepped the bounds of his authority and the constitutional limits on executive powers.
This is interesting to me. I would like to see where this goal of "affecting the November election" is acknowledged. I understand the suspicion that this whole thing is a move of political expedience, but without proof positive that this is the primary motivator for the EO, I'm skeptical. I must admit, however, that even if it
were a political powerplay, I am fundamentally for the restoration of voting rights of felons for reasons I've stated already.
That appeared to refer to a conclusion reached by Mark Rubin, a top lawyer for McAuliffes predecessor as governor, Democrat Tim Kaine.
A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers, Rubin wrote in 2010. And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.
McAuliffe clearly doesn't see this as a rewrite of the law. Again, no law is being changed or passed here; it is merely being interpreted differently. IANAL, but from what I read from this and other articles, he is right in that there isn't any need to alter the law for what he is doing, and I don't think the GOP has a case here. But we'll see what happens.
Rubin didnt immediately respond to a request for comment. But William Hurd, a Virginia election lawyer who served as the states first Solicitor General from 1999 to 2004, said in an interview that other administrations had reached the same conclusion. I do think it is significant that for many years, governors of both parties have not thought they had the sweeping authority that this governor believes he has, said Hurd.
A 2013 bipartisan commission appointed by then-Attorney General Ken Cuccinelli to consider ways of restoring felon voting rights concluded that the governor can restore rights on an individualized basis, not via a sweeping order. [A] court likely would find it difficult to sustain a Governors exercise of this clemency power in so sweeping a manner that the Constitutions general policy of disenfranchisement of felons is voided, a report issued by the panel concluded. Earlier that year, Republicans in the legislature blocked an effort to amend the states constitution to restore the rights of non-violent felons who had paid their debt to society. That measure was supported by then-governor Bob McDonnell, a Republican.
I found this curious, so I did a bit more digging. Turns out that
Politifact covered his about-face on the issue. This was, in fact, a case of someone's views evolving over time, and Cuccinelli appeared to be sincere about wanting to restore voting rights (he was also met with suspicion from VA Democrats). I haven't looked too deeply into the findings of his commission, but it gels with earlier statements in the article.
Still, Coy, the McAuliffe spokesman, noted that Rubins letter on behalf of the Kaine administration cited no specific language in the state constitution or in Virginia law to support the view that a broad restoration of felon voting rights exceeds the governors authority. And he said McAuliffes order was in sync with the Cuccinelli panels finding that rights restoration must be on an individualized basis. Thats because McAuliffe will regularly sign a document that restores rights to any former felon who fits the criteria, so the process wont technically be automatic. Coy said McDonnell did the same thing during the final year of his governorship, though McAullife has somewhat expanded the pool of ex-felons who are eligible.
I'm not entirely clear on this or how it's in sync with the idea of restoring rights on an "individualized basis," but I suppose that will be tested in the coming months.
Virginias felon voting ban, like those of several other states, is derived in part from its 1902 constitution, which had the explicit purpose of disenfranchising African-Americans. Previous versions of the state constitution had disenfranchised people for certain crimes, but the 1902 constitution greatly broadened the number of crimes that led to disenfranchisement, as well as including a range of other devices to limit black voting, including a poll tax and a literacy test. Asked by a journalist whether this amounted to discrimination, one of the most influential members of the convention that produced the constitution, Carter Glass,
replied:
Discrimination! Why that is exactly what we propose. To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.
That's pretty damning from a moralistic standpoint on why felons should be denied voting IMO. Virginia's disenfranchisement of felons clearly comes from a point of racial animus--perhaps not entirely, but in no small part. Permanently barring those that they despised from participating in their society under the guise of justice. Other innocent and/or white lives might get caught in the crossfire, but that's a small price to pay for ensuring continued hegemony.
I really think that it's morally reprehensible that we enshrine within law the creation of a permanent undercaste of people, especially when the roots of these laws are laid so bare. But that aside, I'd be interested in seeing how this whole situation plays out. The only foul play that could be perceived here is the EO's proximity to the general election.
