The Virginia Supreme Court Friday struck down Gov. Terry McAuliffe's executive orders restoring voting rights to more than 200,000 felons, declaring that the 13,000-plus who have registered to vote must be stricken from the rolls.
McAuliffe quickly promised to sign individual orders for those who have already registered, getting around the court's objection that he had restored their rights en masse instead of with the traditional case-by-case review typical of previous governors.
McAuliffe's promise, which he made before this case went to court and then repeated Friday night, left the matter in an unsure posture. Chief Justice Donald Lemons, who wrote majority opinion for a 4-3 divided court, said McAuliffe's very broad orders had effectively suspended the state constitution's general disenfranchisement of felons.
"It seeks not to mitigate the impact of the general voter-disqualification rule of law on an individualized basis but, rather, to supersede it entirely," Lemons wrote on behalf of four of the court's seven justices.
Speaker of the House William Howell and Senate Majority Leader Thomas K. "Tommy" Norment, who took this case before the Supreme Court, called the decision "a sweeping rebuke of the governor's unprecedented assertion of executive authority."
With the victory, the Republican majority leaders succeeded in wiping away a major part of what McAuliffe has called his administration's proudest achievement. They had argued since the governor's surprise April 22 order, restoring rights for some 206,000 felons who had completed their sentences, that the act was unconstitutional.
Two secondary orders, covering people who got out of jail in later months, were cut from the same cloth.
"The Supreme Court of Virginia delivered a major victory for the Constitution, the rule of law and the Commonwealth of Virginia," the two GOP leaders said in a joint statement Friday. "Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch."
There still doesn't seem to be a rush of ex-felons registering to vote in the wake of Gov. Terry McAuliffe's blanket order restoring rights.
The total now stands at 6,054 out of the 206,000 men and women whose rights the governor restored April 22, the state Department of Elections reports.
McAuliffe...
There still doesn't seem to be a rush of ex-felons registering to vote in the wake of Gov. Terry McAuliffe's blanket order restoring rights.
The total now stands at 6,054 out of the 206,000 men and women whose rights the governor restored April 22, the state Department of Elections reports.
McAuliffe...
In a separate statement emailed later, Norment, R-James City, said McAuliffe was "blatant in his complete and unconscionable disregard for an obviously unconstitutional overreach of executive authority."
"He needs to remember this is Virginia, not New York," Norment said. "Here, our forefathers crafted the constitution with a clear delineation of separation of powers that even his mentor, President Obama, must respect."
McAuliffe, whose order seemed to have undone one of the nation's strictest felon disenfranchisement laws, called the Republican suit "a disgrace." He promised to keep signing individual orders until he's covered all 200,000-plus people affected by his initial orders.
"I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored," McAuliffe said in a statement. "The struggle for civil rights has always been a long and difficult one, but the fight goes on."
The courts two black justices, Cleo Powell and Bernard Goodwyn, filed a dissenting opinion that disagreed with the majority on every major point of law. Powell, writing for the pair, said the majority ignored the plain language of the constitution, which doesn't explicitly require case-by-case reviews in granting the governor the ability to restore voting rights.
Republicans argued that 71 previous governors, including some who supported a streamlining of the restoration process, did case-by-case reviews for violent felons. They also argued that the wording in the constitution, including the use of singular pronouns, pointed toward this requirement.
But Powell and Goodwyn said the majority's opinion places an "inconsistent limitation on the governor's authority" and "allows a court to pick and choose what parts of the constitution it is going to enforce."
By arguing that McAuliffe suspended the constitution's automatic disenfranchisement of felons, Powell wrote, the majority ignored the very next phrase, which reads, "unless his rights have been restored by the governor."
"In other words, in holding that the executive order suspends the disenfranchisement clause, the majority ignores the fact that, to the extent that it is a suspension, the language of our constitution expressly allows for such suspension," Powell wrote.
Powell and Goodwyn also disagreed with the majority on various technical but legally important points, including whether Howell, Norment and four other voters named as plaintiffs in the case had legal standing to file it. On this, Justice William Mims filed his own dissent, saying he wouldn't have decided this case without hearing more legal argument on this point.
Mims also said he would have ordered the McAuliffe administration to release its full list of people affected by the restoration order as part of that debate. The governor has refused to release this list despite numerous requests, and despite the fact that spot checks have shown a number of mistakes.
Mims, Powell and Goodwyn all argued that the court shouldn't have opined on the constitutionality of McAuliffe's order due to the lack of standing. The plaintiffs showed no injury, Mims wrote, beyond the minute dilution of voting power millions of other Virginia voters might experience.
With no way to predict how newly registered voters will vote, things are "so uncertain that no basis is provided for judicial intervention," Mims wrote.
Lemons, writing for the majority, granted that its writ of mandamus in this case was something unusual. But he said that there was no other adequate remedy in the law and argued that "the magnitude, scope, timing and imprecision of Gov. McAuliffe's executive order" required the court to act.
The opinion, including dissents, runs 63 pages and is available at the court's website. The case is Howell v. McAuliffe.
Liberal groups decried the ruling Friday, as did the Virginia Chapter of the American Civil Liberties Union, which also called on legislative Republicans to back a constitutional amendment to simplify registrations and bring Virginia in line with a majority of other states. That's something former Republican Gov. Bob McDonnell also asked for, but the GOP majority refused.
Duane Edwards, a felon whose rights had been restored before this series of orders and a board member with Virginia Organizing, called the decision "another victory for Jim Crow and voter suppression."
Howell, Norment and other Republicans pushing this suit denied it had anything to do with race, saying it was about the rule of law. They also accused McAuliffe of springing this order on them shortly after the end of this year's legislative session in the hopes that it would juice the vote for longtime friend Hillary Clinton in the November presidential election.
(c)2016 the Daily Press (Newport News, Va.)