The Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe's sweeping executive order that restored voting rights to more than 206,000 Virginia felons.
In a 4-3 ruling, the court declared McAuliffe's order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state's policy of lifetime disenfranchisement for felons.
The court ordered the Virginia Department of Elections to "cancel the registration of all felons who have been invalidly registered" under McAuliffe's April 22 executive order and subsequent orders. As of this week, 11,662 felons had registered to vote under McAuliffe's orders. The court gave a cancellation deadline of Aug. 25.
"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 W. Lemons wrote in the majority opinion.
"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."
The ruling is a potentially fatal blow to an executive action that could have been a highlight of McAuliffe's gubernatorial legacy.
"He spent 90 days bragging about this being the high point of his governorship," said Del. Robert B. Bell, R-Albemarle, who's running for attorney general in 2017. "And the court made it very clear that he acted unconstitutionally."
Previous governors have eased the process for felons to apply to have their voting rights restored with case-by-case review. McAuliffe's order went further, restoring rights for all felons who had completed their sentences and supervised release, regardless of whether their crimes were violent or nonviolent. Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground.
Because the matter was decided by the state's highest court, McAuliffe has no option to appeal. The governor had vowed to sign 206,000 individualized rights restoration orders if the court ruled against him, but the administration has struggled with data errors that may complicate any mass restoration for named individuals.
The governor's office did not immediately respond to a request for comment.
Democrats said Friday that Republicans have gone to great lengths to keep Virginians from voting.
"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 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- was the "deciding vote." McCullough sided with the majority.
McAuliffe's rivals in the Republican-controlled General Assembly called the ruling a "major victory" for the state constitution and the rule of law.
"Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch," House Speaker William J, Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said in a joint statement. "This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority."
Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.
McAuliffe pitched the order as a necessary step to correct an unusually restrictive felon voting policy that had a disproportionate impact on African-Americans.
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.
http://www.richmond.com/news/virginia/article_718d04d8-70b2-5bfb-aa8c-0ff1ca108b8d.html
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