Will Virginia Supreme Court restore felon voting rights?

Virginia’s Supreme Court is hearing arguments in a challenge from Republicans to an order from Gov. Terry McAuliffe that restored voting rights to 206,000 Virginians who have served their prison terms.

Steve Helber/AP/File
Virginia Gov. Terry McAuliffe, shown here addressing the Virginia Assembly on Jan. 13, 2016, issued an order that restored voting rights to Virginians previously convicted of felonies that is now being challenged in court.

The Supreme Court of Virginia heard arguments Tuesday in a lawsuit filed by Assembly Republicans who are seeking to block an executive order from Democratic Gov. Terry McAuliffe that restored voting rights to more than 206,000 Virginians who had previously been convicted of felonies.

State Republicans say Mr. McAuliffe exceeded his authority with the order and the state's constitution only allows governors to restore rights, including voting rights, on a case-by-case basis. The executive order granted voting rights to those who had served their time and completed any parole or probation requirements by the date of his order.

The executive order revised the state's previous policy, which required all citizens with felony convictions to apply for voting rights restoration before being permitted to vote. With the order, Virginia joins 39 other states and the District of Columbia in allowing citizens with past criminal convictions to vote, and more than 11,000 felons in Virginia have since registered.

The state's high court did not make a ruling after hearing initial arguments on the case Tuesday. Lawyers for the Republicans challenging the order are pushing for a decision before the 2016 election.

Legal Question

McAuliffe argues he does have the power under the Virginia Constitution to restore voting rights to felons who have fulfilled their debt to society, and University of Virginia Law School professor A. E. Dick Howard, whom McAuliffe calls "Virginia's foremost constitutional scholar" in the state – and helped write the current version of Virginia's Constitution – came to a similar conclusion.

"Looking at what the Constitution does say and doesn't say, historically the power of conferring pardons, remitting fines, commuting sentences, that cluster of powers is a power give by the Constitution, both at the federal and state level ... and the only limits to that power are spelled out by the Constitution itself," Mr. Howard tells The Christian Science Monitor. Since the Constitution doesn't spell out a restriction to that power, Howard says McAuliffe acted within the Constitution with his order.

Virginia House Speaker William Howell and the other challengers allege in the lawsuit, however, that the governor only has the right to restore voting rights on an individual basis.

"While the governor does have the authority to individually give pardons and restore civil rights, he can't do it en masse, which is the way he did it," Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, a conservative think tank, tells the Monitor. "It's not just these Republican legislators who believe in this correct interpretation of the law, prior governors, both Democrat and Republicans, had that same view of the law, as did prior attorney generals."

In 2010, then-governor and current Democratic US Sen. Tim Kaine followed the advice of his senior counsel, Mark Rubin, who urged not to issue a blanket order as it would be against the Constitution. In 2013, a commission appointed by then-Attorney General of Virginia Ken Cuccinelli found that a governor could restore voting rights in an individual basis, but not with a wide-reaching order. 

The case is "a true toss-up," Henry Chambers, a professor at the University of Richmond School of Law, tells the Monitor. Reading between the lines of the Constitution, the court may decide that the restoration of rights is comparable to clemency, which clearly is a case-by-case decision. However, the Constitution doesn't say the restoration of rights has to be done on a person-by-person basis, instead saying the governor can do so when the governor sees fit.

"This really is a fascinating question, that doesn't have clear law on either side," he said.  

Voting Rights

Only three states – Florida, Kentucky, and Iowa – currently bar felons from voting permanently, as the Monitor has previously reported. Virginia became the 20th state to make it easier for felons to vote in the past two decades, and 14 states allow felons to vote after their prison terms are completed even if they remain on parole or probation.

The majority of the 206,000 potential new voters are African-American, as the Monitor reported, a group that overwhelmingly supports Democrats. This has led to the two parties fighting over the laws regulating voting rights for released offenders. In Virginia, both parties have accused the other of taking their sides of the debate for political reasons. 

Restoring voting rights empowers low-income, predominately African-American communities, Tram Nguyen, co-executive director of New Virginia Majority, tells the Monitor, and encourages the community to participate in the political process and push for other reforms. When New Virginia Majority's organizers brought the news into the low-income, predominately African-American communities, Ms. Nguyen says there was a sense of disbelief and joy.  

"I was so excited. A lady came to my neighborhood and was telling me about it, and I was like, 'what?' I did not believe her," Louise Benjamin, a Virginian who got her voting rights restored by the order, tells the Monitor. "I was so overwhelmed.... I was crying." 

Analysis from the governor's office found that a majority of those whose rights were restored were nonviolent offenders, and many had been out of prison for 10 years or more. 

"I'm just overwhelmed, I'm thankful for having another chance," Viola Brooks, another Virginia resident whose voting rights were restored by the executive order and has since registered to vote, tells the Monitor. "To me, it's important that each citizen should be allowed to vote.... Those who don't have a serious crime deserve a second chance and I'm thankful and grateful for it." 

Ms. Brooks says she had lost her voting rights for around 20 years after spending almost a year in prison before regaining them with the order. 

Research of re-integration of offenders shows McAuliffe's decision to restore voting rights will lead to positive effects on the state, Christina Mancini, a professor at Virginia Commonwealth University who studies criminal justice, tells the Monitor. 

"Voting rights are really one part of that, being re-integrated, presenting these folks with opportunities to reform and make good in society," she says.  

Even if the court rules against McAuliffe, he clearly has the power to make individual orders for each of the individuals effected, Rebecca Green, the co-director of the election law program at William & Mary Law School, tells the Monitor. 

"Just having a voice, and being somebody, can make a difference," Ms. Benjamin says. 

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