Oct. 21 marked the last day to register to vote in Virginia in one of the most polarizing elections in history — but for thousands of registered felons in Virginia, the day was nothing but a reminder of the rights they do not have. Gov. Terry McAuliffe restored the voting rights of more than 200,000 felons in an executive action in April, but the Virginia Supreme Court overturned his decision in July. Now, McAuliffe has begun the process of signing thousands of individual clemency orders, beginning with those who registered to vote in the time between his initial executive order in April and the court’s decision in July. Virginia is one of only four states which disenfranchises felons for life unless the governor directly grants clemency, and the roots of the felon disenfranchisement provision of Virginia’s constitution date back to the Jim Crow era of discrimination and racism. Restrictions on the civil and political rights of felons should be relaxed, but McAuliffe’s sweeping executive order was an overstep of his role as executive. Challenges to the law, even outdated and hateful ones, must come through constitutional channels, like civic protest, legislative reform, constitutional amendments and limited executive orders.
The Virginia Constitution grants the governor the power of clemency, which means he can restore the voting rights of any individual, regardless of felony charges on their record. McAuliffe’s executive order was an extension of this power: he categorically granted clemency to any felon who had completed probation and parole. However, no previous governor has ever used his powers of clemency to do so — which was just one of the reasons the court found his actions unconstitutional. McAuliffe’s current workaround occupies a hazy legal space: although the thousands of orders that McAuliffe has issued since July are technically individual, they are exceptional in scale. Sen. Tim Kaine, who served as governor from 2006 to 2010, restored the voting rights of about 5,000 felons during his four years in office; in August, McAuliffe announced he had granted clemency to more than 13,000 felons and planned to continue his efforts. In effect, his new clemency orders are another attempt to rewrite the existing law and bypass legislative reform, especially if McAuliffe makes good on his promise to restore the rights to over 200,000 felons.
Some might argue McAuliffe has no choice but to turn to executive action, since partisan gridlock has kept the state from righting this 100-year-old wrong to black Virginians. This certainly is a contentious issue in the Commonwealth: Chief Justice Donald Lemons writes in the opinion for Howell v. McAuliffe, “At least 69 resolutions and bills addressing categorical exclusions to the voter-disqualification provision [of the Virginia Constitution], were offered during each of the legislative sessions from 2004 through 2016, including one continued to the 2017 legislative session — and all have failed to pass the General Assembly.” However, this ongoing contention does not give McAuliffe license to flout constitutional limits on his power.
Written into the constitution of the Commonwealth is a basic dedication to the separation of powers: “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” The separation of powers is one of the most fundamental features of American government, a philosophy created to ensure the rule of law. When any branch oversteps the given boundaries of their powers, even for admirable or compelling reasons, the rights of the citizens are injured. This basic right of citizens to subject their government to restrictions of power is the foundation upon which our political system is based — and threats to this foundation threaten the entire political system.
Over the past several years, the movement to reform Virginia’s voting laws for felons has gained momentum and had considerable success. In 2013, Gov. Bob McDonnell, a Republican who served directly before McAuliffe, ordered that nonviolent felons who had completed their sentence and paid any court fines would be automatically considered (on an individual basis) to have their voting rights restored. McAuliffe then reduced the period violent offenders must wait to apply for voting rights restoration from five years to three and the length of the application for serious offenders from 13 pages to one.
The restoration of voting rights for felons does not have to be a partisan issue; both McAuliffe and McDonnell made the issue a primary concern of their gubernatorial term. Virginia, as a purple state, has the capacity to create bipartisan reform and amend its constitution to allow those convicted of felonies who have served their time to rejoin political society. This reform may take time — as significant legal changes often do — but that doesn’t mean our political leaders need to resort to unconstitutional actions to find justice.
Jordan Arnold is a Viewpoint writer.
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