VA Supreme Court to hear Republican challenge over ex-felons' voting rights

In April, Democratic Governor Terry McAuliffe signed an executive order restoring the vote to felons who have completed their sentences. 

Mark Gormus/ Richmond Times-Dispatch via AP
The crowd cheers during Gov. Terry McAuliffe's announcement on the restoration of rights to felons in Virginia at the Capitol in Richmond Va., on Friday, April 22, 2016. More than 200,000 convicted felons will be able to cast ballots in the swing state of Virginia in November's election under a sweeping executive order by McAuliffe announced Friday that restores their rights to vote and run for office. On Tuesday, the state's Supreme Court will hear a challenge to the order from Republican lawmakers.

Cheryl Fleming can't wait to vote in November. The 54-year-old who lives in Fairfax County had her voting rights restored in April by Gov. Terry McAuliffe after losing them in 1989 for forging checks to buy drugs. She has never seen the inside of a polling booth.

"I was so excited I was screaming in the house," Fleming said of hearing that she got her voting rights back. "I've put my life back together and this was still being held against me," said Fleming, who now works as an Uber driver.

If Republican lawmakers are successful in their legal challenge to McAuliffe's executive order, Fleming and more than 200,000 ex-felons who've completed their sentences could again be stripped of the ability to vote.

At issue when the Virginia Supreme Court meets Tuesday to hear the case is whether the state's constitution allows governors to restore political rights en masse or requires them to be handled on a case-by-case basis.

Republicans say McAuliffe clearly violated the constitution, pointing to the words "person" and "his civil rights" in the document as evidence that governors can only "remove political disabilities" individually. That's the conclusion reached by two previous administrations that studied the issue, Republicans note.

"Gov. McAuliffe is entitled to disagree with the policies of the Virginia Constitution, but he is not entitled to nullify those he dislikes," attorneys for GOP House Speaker William Howell, Senate Majority Leader Thomas Norment and other voters write in their lawsuit.

The debate over voting rights "goes beyond partisan politics," as The Christian Science Monitor's Patrik Jonsson reported in April, after McAuliffe signed the order:

It's also about how society views lawbreakers – as redeemable, or as deserving life-long punishment.  

While the franchise debate is a contentious one, a growing number of states, many of them with Republican governors, are rethinking the extent to which voting is a privilege that can be taken away from citizens who break laws. Evidence from the American Parole and Probation Association suggests that restoring the franchise reduces recidivism. Though a future Republican governor in Virginia could undo McAuliffe’s order, past Republican governors have also taken steps to ease the impact of the 1902 amendment that barred felons from the vote. ...

McAuliffe made the state the 20th to ease voting restrictions for ex-felons in the past two decades. Fourteen states allow felons to vote after their prison terms are completed even while they remain on parole or probation. Only two, Maine and Vermont, allow incarcerated Americans to absentee-vote. Three states – Florida, Kentucky and Iowa – still permanently revoke voting rights for felons.

McAuliffe's administration and backers say there's nothing in the constitution that says – or even implies – that governors must restore a person's rights on a case-by-case basis. Just because no governor has done it before doesn't mean it's not allowed, the administration says, arguing that if the constitution's writers would have made it clear if they wanted that to be the case.

Republicans want the Supreme Court to prohibit election officials from registering felons and to cancel all such registrations made since McAuliffe's April 22 executive order. As of July 11, nearly 9,500 ex-felons who had their rights restored by the governor since April 22 had registered to vote, election officials said.

The governor also faces a federal lawsuit from the conservative legal advocacy group Judicial Watch over his executive order, which also allows former felons to run for public office, serve on a jury, and become a notary public.

McAuliffe has said he will restore all roughly 206,000 former felons' political rights individually if he has to.

Republicans have accused McAuliffe – a close friend of Democratic presidential hopeful Hillary Clinton – of trying to add more minority voters to the rolls to help his party keep the White House in November. Virginia, which is one of only four states that remove voting rights for felons for life unless a state official restores them, is a critical swing state where a few thousand votes could have an impact.

McAuliffe supporters say that what has been lost in the political wrangling is its real positive impact the governor's action will have, particularly on minority communities. 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.

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