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Debate continues over felons' right to vote

McAuliffe's order challenged by Republicans and some voters

The Virginia Supreme Court will hear arguments in July about an executive order issued in April by Gov. Terry McAuliffe which restored voting rights to convicted felons.

The lawsuit, filed by a group of Republican legislators, claims McAuliffe went beyond his constitutional authority by restoring voting rights to felons who have completed their sentences and are not currently on probation.

The Virginia Constitution bars felons from voting once they’ve been convicted; however, the state constitution also grants the governor the right to commute punishments.

The plaintiffs in the lawsuit claim the governor’s authority must be exercised on a case-by-case basis, and that the governor cannot restore rights to entire class of individuals, as he did with the April order.

Four registered voters who claim their right to vote will be diluted by felons being returned to the polls, as well as three former Attorneys General — including one-time governor and Republican presidential candidate Jim Gilmore — have also filed a brief against McAuliffe.

Issuing the Order 

The disenfranchisement of felons disproportionately affects black voters. In Virginia, 25 percent of black men are ineligible to vote due to a prior felony conviction.

University Law Prof. A.E. Dick Howard, who helped draft the state’s current constitution, said felon disenfranchisement in Virginia dates back to the 1830s.

In the early twentieth century, the mandate barring felons from voting was one of many provisions — like literacy tests and the poll tax — explicitly intended to prevent blacks from voting, Howard said.

The racial context behind McAuliffe’s executive order remains a large part of the debate surrounding re-enfranchising felons. The focus of the lawsuit, however, is how broad a governor’s authority extends when it comes to granting clemency.

Howard said he believes the governor’s authority can be exercised in this way because Virginia’s constitution does not explicitly state it cannot be.

“You have several places in the constitution where the limits on the clemency power are spelled out, and in my judgement that by implication means there are no other limits,” Howard said.

Howard said there is a long history of Virginia executives holding right to grant clemency — to both individuals and classes of individuals — in the United States.

Abraham Lincoln’s pardon of former Confederates and Jimmy Carter’s pardon of draft-dodgers after the end of the Vietnam War are both instances of executives exercising their right to grant clemency, Howard added.

However, Haley Proctor, a lawyer at Cooper & Kirk, PLLC, who is representing the plaintiffs, said McAuliffe must restore rights on an individual basis.

“It has no precedent in the annals of Virginia history,” Proctor said. “In fact, Gov. McAuliffe’s two immediate predecessors, both of whom were champions of re-enfranchising felons, had dismissed the possibility as a violation even of their oaths of office on the ground that it was unconstitutional.”

Further Controversy

The Governor’s order has also sparked further debate between Republicans and Democrats about felons’ possession of guns and the re-enfranchisement of sex offenders.

In addition to voting, McAuliffe has also made it easier for released felons to have their right to own firearms reinstated.

Felons seeking to purchase guns must still petition a court for permission, but the order has eliminated the need for them to first apply to the Secretary of the Commonwealth.

In June, 132 sex offenders under civil commitment at a behavioral treatment facility in Nottoway County were also added to the statewide list of re-enfranchised individuals.

According to a statement issued by the Governor’s office, the offenders were not covered under the terms of the order, since they are still under a form of supervised release.

The names, the statement reads, “were included on our working list due to an administrative error, and have been removed.”

According to the Washington Post, Nottoway County Commonwealth’s Attorney Terry J. Royall claimed McAuliffe’s office covered up the issue by purposefully altering the list after it gained attention.

Royall and the Republican opponents of McAuliffe’s order claim civil commitment is not part of a criminal sentence, and therefore the offenders do fall under the class identified in the order as being re-enfranchised.

Howard said he is skeptical that the Governor’s office purposely withheld or lied about information regarding the status of the sex offenders.

“I will assume as a matter of course that if you’re dealing with 200,000-odd people there are bound to be some mistakes of people who should have been covered who weren’t,” Howard said. “Some that were covered and shouldn’t have been.”

Sam Tobin, University Democrats president, said the organization supports McAuliffe’s executive order.

Tobin said he wishes Republicans would engage new voters rather than issuing legal challenges.

“Instead of bickering and trying to sue the governor over what I think he has the authority to do, they should be out there earning these people’s votes,” Tobin said. “They are citizens of this country, they are citizens of this state, and their say matters too.”

College Republicans could not be reached for comment. 

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