VA Supreme Court Reviews Order Restoring Voting Rights to 206,000 Ex-Felons

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July 19, 2016; Washington Post

In May, NPQ reported that Virginia Governor Terry McAuliffe had issued an executive order to restore voting rights to more than 200,000 ex-inmates in time for the November election. Nonprofits and advocacy groups have been instrumental in educating and alerting ex-inmates about shedding their formerly disenfranchised status. However, Republican legislators pushed back on McAuliffe’s order almost immediately, and now they are taking the issue to the state Supreme Court to determine if the governor unconstitutionally overstepped his power in allowing the massive and unprecedented restoration of voting rights.

According to the Constitution, those convicted of a felony may lose their right to vote, but the policies vary from state to state. In Maine and Vermont, a felon will never lose the right to vote even while incarcerated. Previously in Virginia, as in other states currently, voting restoration was taken on a case-by-case basis. Under this new order, ex-felons in Virginia will automatically be able to vote after completing their sentence and parole or probation, with no required review of their individual cases.

At the center of the controversy is the question of whether McAuliffe’s order was within the purview of the governor’s clemency power given what previous governors have done. In other words, can McAuliffe grant an unprecedented, sweeping order to an entire group of people, or is he required to adhere to Virginia’s previous policies of assessing the restoration cases individually?

“It is the exceptional felons that qualify for gubernatorial exceptions,” said Charles J. Cooper, arguing for the Republicans before the Supreme Court of Virginia on Tuesday. According to Cooper, the strongest evidence supporting the case that the executive order was an overreach of power is that such actions have never before been exercised by a Virginia governor. “Power does not lay dormant and unused for two-and-a-half centuries,” he said.

Virginia Solicitor General Stuart A. Raphael, representing the governor, countered that simply because the power has not be exercised previously does not mean it doesn’t exist. “If the Constitution provides for the power, it doesn’t go away with nonuse,” said Raphael.

According to state officials, if the state Supreme Court rules that the order was unconstitutional, it likely wouldn’t impact the restoration effort. While it would be a setback for criminal reform activists championing the order, McAuliffe could still individually grant orders to restore voting rights, which would have the same impact.

However, the order has had a dramatic effect on the ex-inmate community. Before the order, about a quarter of the African American population in Virginia was restricted from voting, according to the Washington Post. Since then, more than 11,000 ex-felons have registered to vote. Along with voting rights, ex-inmates convicted of felonies also earn the right to serve on juries and apply to possess firearms, one of the reasons opponents have fought the order.

Moreover, just which specific ex-inmates are eligible has also concerned opponents. McAuliffe has been admonished by the justices for refusing to hand over a list of the over 200,000 ex-felons, some of whom officials say are incorrectly included as eligible. According to the Richmond Times-Dispatch, reports indicate there are at least two fugitive sex offenders on the list and some people who are still incarcerated. Without the list being public, verification is still needed on these reports.

The list of over 200,000 eligible ex-felons also includes 132 sex offenders under involuntary observation and others who have committed violent crimes. These sex offenders have finished their sentences, therefore being eligible under the order, but remain monitored in facilities because they have been found to be too dangerous for society. Activists would argue that though they are monitored, they are not incarcerated anymore and have completed their sentences.

While McAuliffe’s actions may be unprecedented for Virginia, other states have passed policies similar to his executive order. Earlier this year in February, Maryland granted 40,000 of its citizens still on probation the right to register to vote.—Shafaq Hasan