Gov. Terry McAuliffe’s decision to restore voting rights to more than 200,000 felons violates Virginia’s constitution, the state Supreme Court ruled Friday.
In a 4-to-3 decision, the court ruled that McAuliffe overstepped his clemency powers by issuing a sweeping order in April restoring rights to all ex-offenders who are no longer incarcerated or on probation or parole.
The court agreed with state Republicans who challenged McAuliffe’s order, arguing that the governor can only restore voting rights on a case-by-case basis and not en masse.
“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,” Chief Justice Donald Lemons wrote for the majority. “To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists.”
But a defiant McAuliffe released a statement late Friday saying that he would pick up his executive pen and restore the rights of those felons on an individual basis, even if it means signing more than 200,000 orders.
“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,” he said. “The struggle for civil rights has always been a long and difficult one, but the fight goes on.”
The court directed the state elections commissioner, Edgardo Cortés, to cancel the registrations by Aug. 25 of about 13,000 felons who had joined the voter rolls after McAuliffe signed his order. Cortés was also ordered to add their names to the list of prohibited voters.
McAuliffe said in his statement that he would “expeditiously” sign individual orders for those 13,000 felons and then keep on signing.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said. “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.”
The ruling comes three months after McAuliffe stood on the portico of the state capitol and pledged to erase the last vestiges of Jim Crow-era laws that disenfranchised African American voters. Nearly a quarter of the state’s black population cannot vote because of felony convictions.
Virginia is one of just a handful of states that ban all felons from voting and require individual exemptions for ex-offenders to vote, according to the Brennan Center for Justice. The ban is tinged with racial overtones; when it was adopted in 1902, a delegate testified to the need to “eliminate the darkey as a political factor,” according to Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law.
McAuliffe said his restoration order was his “proudest moment as governor,” and the state party has rallied around the policy as the premier achievement of his term.
But state Republicans saw it as a partisan move to swell the numbers of Democratic voters heading into the November election, when McAuliffe’s good friend, Hillary Clinton, will be battling to win the swing state’s 13 electoral votes in her presidential race against Republican Donald Trump.
Virginia House of Delegates Speaker William J. Howell, R-Stafford, and Senate Majority Leader Thomas K. Norment Jr., R-James City, who brought the challenge with four voters, applauded the ruling.
“The Supreme Court of Virginia delivered a major victory for the Constitution, the rule of law and the Commonwealth of Virginia. Our nation was founded on the principles of limited government and separation of powers,” they said in a joint statement. “Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.”
Lemons noted in his opinion that Virginia’s last Democratic governor, Timothy Kaine, declined in 2010 to issue a blanket voting rights restoration order on advice from a senior adviser who said such a move would be an improper “rewrite” of the law and constitution. A spokeswoman for Kaine, now a senator who was announced as Clinton’s running mate Friday evening, did not return a request for comment.
John Whitbeck, chairman of the Virginia GOP, said in a statement that McAuliffe was trying to “stack the deck for Hillary Clinton” and accused him of a “naked power grab.”
Along with voting rights, the governor’s action restored the right to serve on a jury, run for public office and become a notary public.