In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.
McAuliffe believes that ex-felons can be trusted to make decisions in the ballot booth and the jury box but apparently not to own a gun. He draws the line at restoring their Second Amendment rights; that would be a bridge too far. His order specifically does not restore their “right to ship, transport, possess, or receive firearms.” And while his order requires that felons complete probation and parole before enjoying restoration of their rights, it applies regardless of whether they have paid any court fines or restitution to victims.
On May 10, 2013, the committee issued a report concluding that the governor does not have constitutional authority to “institute by executive order” a complete “restoration of rights for all convicted felons in the Commonwealth of Virginia.” Why? Because his clemency power in Article 5 must be harmonized with Article 2, Section 1, which provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored.” If, instead of acting individually to consider each “person” and “his civil rights,” the governor issues a blanket restoration, such “altering [of] the public policy of the Commonwealth as regards the disenfranchisement of persons convicted of felonies clearly would be a legislative act, not an administrative act.” It would be “difficult” for a court to “sustain a Governor’s exercise of [his] clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided.”
Yet that is exactly what McAuliffe attempts to do through his executive order, in a violation of the separation of powers. He is acting like a superlegislator in voiding the policy that has existed in Virginia “in one form or another since the [Virginia] Constitution of 1830,” according to the Cuccinelli’s report. (The New York Times incorrectly reported that the policy dated only to the Civil War; the Richmond Times-Dispatch, to the state’s 1902 constitution.)
It is estimated that McAuliffe’s action will add 3.8 percent to the 5.4 million registered voters in Virginia. That may not seem like a lot, but McAuliffe knows very well that Virginia today is a swing state with recent statewide elections that have been decided by a very small margin. In 2013, the current attorney general, Mark Herring (D.), won his race by only 907 votes. Former Virginia governor Bob McDonnell (R.) won his prior post as attorney general by only 360 votes in 2005.
McAuliffe is continuing a pattern. Last year he vetoed a bill that would have helped clean up voter-registration lists. The bill required county court clerks to send to local election officials information about individuals who were excused from jury duty because they were not U.S. citizens or were no longer residents of Virginia. McAuliffe seems intent on making sure that ineligible and illegal voters can continue to vote.
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