The Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office.
In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons.
The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.
As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.
McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.
The court majority found that McAuliffe did indeed overstep his authority.
“Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion.
“To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”
In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”
McAuliffe’s statement did not give a timeline for when the policy will be repaired by individual orders. Data errors in McAuliffe’s list of felons believed to meet the order’s criteria will likely complicate the process by requiring more review to prevent irreversible mistakes.
Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law.
“He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”
In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.”
Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.
Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact.
The McAuliffe administration has repeatedly refused to release its felon database to the public, citing exemptions in public-records laws for executive working papers and voter registration information.
Previous governors have eased the process for felons to apply to have their voting rights restored with case-by-case review. McAuliffe’s order went further, restoring rights for all felons who had completed their sentences and supervised release, regardless of whether their crimes were violent or nonviolent.
Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground.
“The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.
McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia.
Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority.
The court ruling prompted immediate blowback for Richmond mayoral candidate Levar Stoney, who handled rights restoration as McAuliffe’s former secretary of the commonwealth. Mayoral candidate Joe Morrissey said that if Stoney was the architect of the order, “his architectural expertise is a disaster.” Morrissey said he has guided felons through the rights restoration process as part of his legal work and fully supports the principle.
“This case was actually a straight legal case that politicians like Levar Stoney and McAuliffe both tried to make into a political one,” Morrissey said. “What you have here is an inexperienced politician, Mr. Stoney, who got involved, politicized it, and now it has taken a very good thing, voter restoration, and thrown it on its heels.”
Stoney campaign spokesman Matt Corridoni responded that the candidate has been “on the front lines actually fighting on this issue.”
Corridoni said Morrisey “is yet again looking to lodge political attacks instead of advocating for the people of Richmond and sharing a vision for the future.”
Stoney, who marched with rights restoration supporters downtown Tuesday as the Supreme Court heard the case, called the ruling “a devastating day for civil rights in Virginia.”
“SCOVA ruling pushes people who’ve paid their debt back into the shadows,” Stoney said on Twitter. “The fight continues — VA cannot go back to joining the only 4 other states who make citizens beg for rights.”
The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va.
Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists.
The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.