By Leonard E. Colvin
New Journal and Guide
Exactly three months after he issued his landmark executive order, the Virginia Supreme Court overturned Gov. Terry McAuliffe’s order restoring voting rights to 206,000 felons.
The court’s 4-3 ruling accepted state Republicans’ claims that McAuliffe’s order was unconstitutional, and was his effort to rewrite and suspend the state’s policy of lifetime disenfranchisement for felons.
The court’s ruling was a setback for the Democratic Governor who wanted to enable thousands of poor and Black Virginians who had paid their debts to society to regain the fundamental right to vote. On the same day, the state’s high court struck down his order, McAuliffe said he would “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And 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’s statement did not indicate when the policy will be repaired by individual orders. Data errors in McAuliffe’s list of felons believed to meet the order’s criteria will likely complicate the process by requiring more review to prevent irreversible mistakes. As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.
When McAuliffe issued his order on April 22, 2016, he said he wanted to strike down decades-old restrictive voting laws which had disproportionately impacted poor African-American men and women. But his Republican opponents in the state legislature called his actions a gift to political ally Hillary Clinton, who would have benefitted from additional voter support from African-Americans and Hispanics, two groups which usually vote for the Democratic party.
The GOP immediately attacked the governor’s action, and unearthed the names of violent and nonviolent felons with no case-by-case review which had shown up on the list of people who would benefit. The court majority said, in their ruling, that McAuliffe did indeed overstep his authority. James Bailey, a member of Virginia Cares, a group which is part of a coalition of organization purporting the Governor’s action and works to help Virginia felons restore their voting and other rights, said he was disappointed.
“I am hoping that there will be an appeal of the court’s decision because a lot of people have already applied and have their rights restored,” said Bailey, who is also running for the Portsmouth city council. “I am hoping that those whose rights have been restored will be grandfathered. But I hope that the governor does pursue his promise to restore each applicant’s rights individually. The best thing for us to do at this point is to continue to fight for felons’ rights and hope this decision will be reversed.”
State Senator Mamie Locke of Hampton, the leader of the Virginia Legislative Black Caucus, in a media statement, said her group is “disappointed that the Virginia Supreme Court has invalidated Governor McAuliffe ‘s Executive Order. “Felony disenfranchisement disproportionately impacts African-Americans and Virginia remains one of a few states requiring individual restoration, which is archaic in 2016,” the statement said.
“There are over 11,000 individuals in the Commonwealth who are now being told they cannot be voters, despite the fact that they have paid their debt to society. The Supreme Court ‘s rationale is no different than that of Republicans – it has not been done before by 71 previous governors. “Does that make this Governor wrong? Voting is a right and citizens by necessity exercise that right once their debt to society has been paid. As a Commonwealth, we have a moral obligation to these citizens.”
Chief Justice Donald W. Lemons, who wrote in the majority opinion, said, “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind – including pardons, reprieves, commutations, and restoration orders – to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request.
“To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.” “It’s outrageous that Republicans would fight to deny tax paying ex-felons the right to vote,” said Gaylene Kanoyton, Hampton Branch NAACP. “I’m confident that Governor McAuliffe will continue to work within his executive power to restore each every one of the 200,000 ex-felons their right to vote.”
Justices Cleo E. Powell and S. Bernard Goodwyn – the court’s two African-Americans – dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence – most notably the governor’s list of the 206,000 felons affected – to fully consider the order’s impact.
The McAuliffe administration has repeatedly refused to release its felon database to the public, citing exemptions in public-records laws for executive working papers and voter registration information. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority.