Government at its worst

I wanted to write and give you an update on the lawsuit challenging Governor McAuliffe’s executive order that, in one fell swoop, restored voting and other civil rights for over 200,000 convicted felons in Virginia.  As many media outlets have reported, this action – setting aside its highly questionable legal justification – was otherwise handled in a very sloppy manner, restoring rights to all sorts of violent felons, including those even the Governor himself didn’t intend to cover.  The ham-handed handling of this order is itself deeply troubling, and the actual consequences are quite dramatic.  Attorney General Mark Herring appears to have done nothing to properly counsel the Governor in his handling of this action.        

The Governor’s order has now been challenged in court.  William J. Howell and Thomas K. Norment, as well as four voters, have petitioned the Supreme Court of Virginia to stop convicted felons from being added to voter rolls. I am pleased that the plaintiffs hired Chuck Cooper, a good friend and one of the finest constitutional lawyers in the country.  Also, the former attorneys general amicus brief was filed by my longtime friend Will Consovoy, another strong supporter of the Adams Campaign.  The bottom line: our side has superb representation.  The petitioners bypassed lower courts and petitioned the Supreme Court of Virginia directly because timing matters—this issue must be resolved before the absentee voting process kicks off for the general election in November. The Virginia Supreme Court recently agreed to hear the case during a special session on July 19. This is a good sign, and should allow the Court to render a decision in time.  

Mark Herring recently filed his brief to defend the Governor’s actions, claiming that they are authorized by the Virginia Constitution.  Although I disagree with General Herring, there are some tough legal questions to be resolved.  The first obstacle is the petitioners must demonstrate that they have standing. The concept of standing in Virginia is concerned with the characteristics of the person filing suit. Basically, in order for the court to reach the merits of the parties’ claims, the parties must assert some interest in the case that is separate and distinct from the interest of the general public. Here, the petitioners may be able to meet this standard based on a particularized interest in the right to vote.  I have previously noted that it may have been good to include registrars, as they are charged with managing voter rolls. 

As to the merits, there are good arguments that the Governor’s order is unconstitutional. The Virginia Constitution provides that a felon’s voting rights may be restored only on an individualized basis: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor.” The Governor’s order certainly appears to run afoul of that provision.  Perhaps even better, it appears to improperly intrude on the role of the legislature. The Governor is empowered to enforce the law by making individualized decisions, such as whether to prosecute a particular person or whether to grant a prisoner clemency. But blanket decisions that affect large groups of people are often considered legislative rules, and they should be made by the legislature, not the Governor. In addition, the petitioners in the case discuss compelling historical evidence to demonstrate that there is no historical precedent for Governor McAuliffe’s radical decision to restore voting rights all at once to hundreds of thousands of convicted felons.

That said, the Court may be hesitant to begin making distinctions between categorical and individualized orders in the area of “clemency powers,” a realm that has traditionally been managed solely by the executive.  In our American and Virginian constitutional history, one of the executive’s truly independent powers that acts as a check on the other branches is the power to grant clemency. The thought of a court limiting one of the executive’s few checks on courts could cause some of the Justices concern.  Some judges, including conservative ones, could decide this is best left to the people, i.e. “if you don’t like this action, don’t vote for the Governor or those of his party who share his views.”    

In the press release accompanying his order, the Governor stated that he was “restoring the rights of more than 200,000 of our fellow Virginians who work, raise families and pay taxes in every corner of our Commonwealth.” As I have said out on the trail, you show me someone who committed a felony, served their time and paid back their debts and is now “working, raising their family, and paying taxes,” and I will be the first in line to restore their civil rights.  But you have to check. And regardless of the outcome of this particular case, one thing remains clear: the people of Virginia deserve better government and better legal representation.  Mark Herring supported an embarrassingly bungled legal action that made a mockery of the reasoned judgment and thoughtful consideration we expect from our leaders.  I am a firm believer in redemption, but this was government at its worst – dismissive of the law, politically motivated, and sloppily executed.  Virginia needs a new lawyer.