McAuliffe loses in court

We recently received great news.  The Supreme Court of Virginia held that Governor McAuliffe violated the Virginia Constitution by categorically restoring voting rights to more than 206,000 convicted felons without considering the particular circumstances of each case.  First and foremost, it was a job well done by a great legal team, including Chuck Cooper, the lead attorney, and Will Consovoy, lead counsel for the former Attorneys General amicus brief.  Both of these men are good friends and have been strong supporters of our campaign.  Great lawyers can get good things done. 

This ruling is important.  It enforces the plain meaning of the Virginia Constitution, which is the most reliable way to ensure each branch of government stays within its bounds and individual liberty is preserved.  Likewise, I have also emphasized that constitutional interpretation must consider the historical traditions of our people.  The Court did that by declaring that the Governor’s actions were unlawful, in part, because Virginia’s legal history has never recognized the power to restore voting rights in one fell swoop to an unnamed mass of convicted felons.

This is an important holding going forward for other reasons, as well.  Given the approach taken on the standing issue, it may increase voters’ ability to bring lawsuits in the future that challenge laws or policies related to elections.  This will be a trend worth watching. 

I think it is also important to consider what this ruling means for restoring voting rights in the future.  Although the Court held that the Governor’s blanket order was unconstitutional, it did not provide specific instructions on how the Governor must exercise his clemency power.  It emphasized that the Governor must give each clemency applicant individual consideration, but it did not specify how much time he must spend considering each application, whether he can delegate this responsibility to an office within the executive branch, and whether he can restore voting rights for multiple people in a single order.  

These are important questions, as Governor McAuliffe mentioned before the Court’s decision that he is prepared to restore voting rights in individual orders to the 206,000 people covered by his executive order. If the Governor takes additional action to restore voting rights en masse, we should expect new litigation. 

Regardless of what the Governor does next, the Court’s decision was a great result for two reasons.  First, it reinforced the rule of law.  Second, it demanded that the leaders we entrust with so much power must exercise reasoned judgment when performing their duties.  If Governor McAuliffe does start signing a lot of restoration orders, we citizens can better hold him to account for those decisions. 

In defending the Governor’s actions, Attorney General Mark Herring supported a policy that was neither reasonable nor based on sound judgment.  As I have said, Virginia needs a new lawyer.  I hope you'll join our campaign today.