The Virginia Supreme Court on Friday ruled against Gov. Terry McAuliffe’s executive order seeking to reinstate the right to vote to approximately 206,000 Virginians who had been convicted of a felony but had completed their sentences.
Writing for a 4-3 court, Chief Justice Donald W. Lemons held that the “assertion that a Virginia governor has the power to grant blanket, group pardons” is “irreconcilable” with the Constitution of Virginia.
The ruling is a political setback to Democrats and was issued in the critical state about an hour before Hillary Clinton announced she would choose former Virginia governor and current Sen. Tim Kaine as her running mate. The court’s opinion actually mentions Kaine, noting that when he was governor he contemplated a similar executive order but in the end was advised that he couldn’t issue such a sweeping action.
“Never before,” Lemons wrote, “have any of the prior 71 Virginia governors” issued such a clemency order of any kind, “whether to restore civil rights or grant a pardon, to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request.”
In a statement, McAuliffe vowed to sign nearly 13,000 individual orders to restore voting rights to felons, a process that some voting rights experts say could be cumbersome and complicated.
“I will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote,” McAuliffe said. “And I will continue to sign orders until I have completed restoration for all 200,000 Virginians. My faith remains strong in all of our citizens to choose their leaders, and I am prepared to back up that faith with my executive pen.”
Clinton praised McAuliffe for his “dauntless leadership.”
“This is what dauntless leadership looks like. Thank you, @GovernorVA—proud to call you a friend. -H,” Clinton tweeted Saturday morning.
The challenge was brought by citizens and Republican state officials who argued in court papers that Virginia’s Constitution forbid “this unprecedented assertion of executive authority.”
“The governor simply may not, with a strike of the pen, unilaterally suspend and amend the Constitution,” argued Charles J. Cooper, a lawyer for the petitioners. Cooper also emphasized that Kaine had concluded that Virginia’s Constitution “does not permit blanket restoration.”
McAuliffe’s action attracted immediate criticism when he issued the order in April. Writing in the National Review, Kevin D. Williamson called McAuliffe a “Clinton henchman.”
“Virginia is a swing state,” Williamson wrote, “and Governor McAuliffe is therefore determined to deliver it to her.”
Election law expert Rick Hasen called the opinion a “big blow both politically to Democrats (who would have gotten a boost from the restoration of voting rights to felons who had secured their sentences) as well as to the cause of felon re-enfranchisement generally.”
