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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
November.
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
restored.
“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.
Restoration
of Rights: Facts
By Jesse Siebentritt
V