Virginia Supreme Court Lets Governor Restore Voting Rights to Felons

by | September 19, 2016

By Travis Fain

The Supreme Court of Virginia shot down GOP push Thursday to hold Gov. Terry McAuliffe in contempt of court over felon voting rights restorations.

The decision seems to finalize a partisan court battle over just how the McAuliffe administration can go about restoring voting rights in Virginia. That allows the governor to move forward with a process that has restored voting rights to more than 19,000 people in the past month.

Republican legislators called on the court in early September to force McAuliffe to "show cause" and prove he hadn't violated the court's previous order in this case, which had struck down mass restorations that the governor rolled out in April.

Speaker of the House William Howell and Senate Majority Leader Thomas K. "Tommy" Norment, who sued to have that initial mass order ruled unconstitutional, argued that the governor's subsequent move to restore rights with hasty individual orders didn't include enough of a case-by-case review to satisfy the court's order.

They suggested in a Sept. 1 filing that the governor was in contempt, and they essentially asked the court to revisit the case, calling for discovery as part of the show cause proceedings.

The court denied that request Thursday.

McAuliffe spokesman Brian Coy said that, absent any further word from the court, the administration is moving "full speed ahead" to process individual restorations for the 200,000-plus people it once hoped to cover via the mass orders.

Howell, R-Stafford, said in a statement Thursday that he was disappointed, but that he respects the court's decision.

Carl Tobias, the Williams Chair in Law at the University of Richmond, said he be believes this draws the court fight over restorations to a close.

"I do not see what more the GOP can do to stop them," Tobias said in an email.

In his statement Thursday, Howell promised "a robust discussion" during the coming General Assembly session, which starts in January, about how to change the state constitution's language on felon voting. He called the current language, "vague, vulnerable to executive overreach, and insufficiently transparent." He said that McAuliffe "stretched the bounds of the Virginia Constitution."

Virginia's constitution disenfranchises all people convicted of a felony unless the governor restores their right to vote. It does so with brief language that doesn't lay out a process for governors to follow: "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority."

McAuliffe argued that this language didn't prohibit him from restoring rights all at once to every felon in Virginia who had finished his or her sentence and supervised release. Howell and Norment, R-James City, argued that no previous governor had done this, and they said other language in the constitution indicates that individual reviews are required.

The court sided with the legislators, but didn't lay out a process. Since that July 22 decision McAuliffe restored voting rights to more than 12,500 people who registered to vote after his mass order restorations, plus another 7,000 people who requested restoration. His administration has said each case gets reviewed in a process similar to the one used by former Republican Gov. Bob McDonnell.

Norment has proposed a constitutional amendment that would remove the governor's power to restore voting rights, making restoration automatic instead for non-violent felons. The legislature would decide what crimes qualify as non-violent under his proposal, and violent felons would not have an avenue for restoration.

McAuliffe and other Democrats have blasted this plan. The state party called on Republicans Thursday to drop the idea and called the court's decision "a milestone in the fight to restore voting rights to thousands of Virginians."

Howell has said Norment's plan will be one of several reviewed as the General Assembly mulls this issue.

Changing the constitution would require two majority votes in the General Assembly -- one in 2017, and another in 2018 -- followed by voter approval in a statewide referendum.

McAuliffe said in a statement Thursday that restoring voting rights is "morally the right thing to do," a case he has made for months.

"It is my hope that the court's validation of the process we are using will convince Republicans to drop their divisive efforts to prevent Virginians from regaining their voting rights and focus their energy and resources on making Virginia a better place to live for the people who elected all of us to lead," the governor said in his statement.

Attorney General Mark Herring, whose office defended the governor's restoration process before the court, said in his own statement Thursday that the GOP contempt motion "was completely baseless and I'm glad the Supreme Court dispatched it so quickly."

(c)2016 the Daily Press (Newport News, Va.)