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On April 22, Governor

McAuliffe signed an executive

order that restored the voting

and civil rights of an estimated

206,000 people with previous

felony convictions in the

Commonwealth of Virginia.

“If we are going to build

a stronger and more equal

Virginia, we must break

down barriers to participation

in civic life for people who return to society seeking a

second chance. We must welcome them back and offer

the opportunity to build a better life by taking an active

role in our democracy,” McAuliffe remarked outside the

Capitol moments before he signed the order. “I believe it is time to cast

off Virginia’s troubled history of injustice, and embrace an honest,

clean process for restoring the rights of these men and women.”

Republican leadership responded to the move swiftly, describing

it as politically motivated executive overreach.

“I am stunned at (the Governor’s) broad and unprecedented view

of executive power, which directly contradicts how past Governors

have interpreted their clemency powers, and I am stunned at his

willingness to restore the rights of the most heinous criminals

without batting an eye,” House of Delegates Speaker William J.

Howell wrote in a statement. “Yet, I am not surprised by the lengths

to which he is willing to go to deliver Virginia to Hillary Clinton in


In response to requests for additional information on the persons

whose rights he restored, McAuliffe’s administration released

summary level data on May 11, which showed 79 percent were

convicted of nonviolent crimes and 41.8 percent had completed their

sentence and court supervision more than 10 years ago.

Howell responded in a May 11 press release asking for more

detailed information regarding the individuals whose rights were


“The delayed, incomplete, and unverified data released by

Governor McAuliffe in no way excuses his reckless decision to

restore the civil rights of violent offenders and flagrant violation of

the constitution,” the statement read.

Democrats have framed the Governor’s executive order as a

necessary step to rectify more than a century of racial injustice.

“I stood in front of that Capitol, where in 1902, they had used

race to deny people the right to vote. They put a poll tax in, they put

a literacy test in, they disenfranchised felons,” McAuliffe said at a

May 11 town hall meeting at 31st St. Baptist Church. “… So for me

to stand there as the 72nd Governor, and erase 114 years of racial

injustice… was the greatest day of my Governorship.”

On a press call hosted by the Democratic National Committee and

the Democratic party of Virginia earlier May 11, U.S. Representative

Bobby Scott (D-VA) noted the racial breakdown of those whose

rights were restored.

“What stood out for me was that 45.9 percent of disenfranchised

voters are African-Americans even though blacks only account for

19.4 percent of the Commonwealth’s entire population,” Scott said.

“That clearly illustrates that the impact of the law was most keenly

felt by African-Americans.”

In a petition for writs of mandamus and prohibition that the

Virginia Supreme Court will consider on July 19, Howell, Virginia

Senate Majority Leader Tommy Norment and several other citizens

of the Commonwealth countered Democrats’ claims that the felon

disenfranchisement clause was targeted toward African-Americans.

“The prohibition could not have been adopted for the purpose of

depriving African-Americans of the right to vote because it was fist

added to the Constitution in 1830, when only whites could vote,” the

petition reads. “The 1851 and 1864 Constitutions likewise allowed

only whites to vote but denied the vote to any person convicted of

‘any infamous offence.’”

Matt Ford reports in an April 27 article in the Atlantic, “The

Racist Roots of Virginia’s Felon Disenfranchisement,” however,

that the 1868 constitution guaranteed the right to vote to every male

citizen over 21 years of age, and “excluded only people convicted of

corruption or treason, participants in duels, and ‘idiots and lunatics’

from voting.

The 1902 constitutional convention—which followed the

enactment of Jim Crow laws aimed at discriminating against and

disenfranchising blacks—resulted in more expansive restrictions on

access to the ballot box. “… The convention approved a clause that

disenfranchised Virginians convicted of numerous crimes, including

‘treason or of any felon, bribery, petit larceny, obtaining money or

property under false pretenses, embezzlement, forgery, or perjury,’”

Ford writes.

In addition to the original intent of the felon disenfranchisement

clause, the Supreme Court may consider whether the Governor’s

action overstepped his executive authority.

Attached to the petition are documents intended to demonstrate

that McAuliffe’s order was outside his authority because it deviated

from the practice of his predecessors. The first exhibit is a letter from

Governor Tim Kaine’s counselor, Mark E. Rubin, declining a request

from Kent Willis of the American Civil Liberties Union that then-

Governor Kaine use his executive power to grant a blanket restoration

of voting rights to Virginians with felony convictions.

“A blanket order restoring the voting rights of everyone would be

a rewrite of the law rather than a contemplated use of the executive

clemency powers,” Rubin writes.

Similarly, Exhibit 2, “Report of the Attorney General’s Rights

Restoration Advisory Committee,” published May 10, 2013 found

that “the Governor cannot institute by executive order an automatic,

self-executing restoration of rights for all convicted felons in the

Commonwealth of Virginia.”

Governor McAuliffe has said he will continue to issue executive

actions on a monthly basis granting civil rights to felons as they

complete their supervised probation or parole. As of June 31st the

Daily Press reported 5,800 people with prior felony convictions had

registered to vote. On July 19, the Virginia Supreme Court will take

up the validity of those registrations.

Jesse Siebentritt is an alumnus of the University of Richmond class

of 2015 and editor of the Summer 2016 issue of Virginia Capitol

Connections Quarterly Magazine.


of Rights: Facts

By Jesse Siebentritt