RUTHFULLY YOURS

In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.

McAuliffe believes that ex-felons can be trusted to make decisions in the ballot booth and the jury box but apparently not to own a gun. He draws the line at restoring their Second Amendment rights; that would be a bridge too far. His order specifically does not restore their “right to ship, transport, possess, or receive firearms.” And while his order requires that felons complete probation and parole before enjoying restoration of their rights, it applies regardless of whether they have paid any court fines or restitution to victims.

What McAuliffe entirely dismisses is the principle that if you won’t follow the law yourself, you can’t demand a role in making the law for everyone else, which is what you do when you vote. Restoring a felon’s right to vote should be done not automatically, as soon as he has completed his sentence, but carefully, on a case-by-case basis, after he has shown that he has really turned over a new leaf. The unfortunate truth is that many people who walk out of prison will be walking back in; recidivism rates are high. We have both testified before Congress and written about this problem. Governor McAuliffe may be happy as long as the ex-felons who can now vote just don’t walk back into prison before November.

Having a waiting period, examining each ex-felon’s application for restoration of rights carefully and individually, and differentiating between violent and nonviolent crimes is exactly the system that Virginia had — at least until Friday’s order. In a three-page summary released by the governor’s office, McAuliffe asserts that any claim that he doesn’t have the authority to grant a blanket restoration of rights is “far-outside the weight of constitutional authority across the nation and would read into the text of the Virginia Constitution words that simply are not there.” This is just legal gibberish — the weight of constitutional authority “across the nation” has no bearing on interpreting the Virginia constitution. McAuliffe is reading into that constitution authority he does not have.

That isn’t just our opinion; it is the opinion of prior governors and attorneys general of both political parties. For example, on January 15, 2010, Mark Rubin, the counselor for former Virginia governor Tim Kaine (D., now a U.S. senator), sent a letter on the governor’s behalf to the ACLU, saying that Kaine did not have the executive power “to grant a blanket restoration of voting rights,” which the ACLU had requested. Kaine supported restoration of voting rights but refused to act because his counsel’s view was that the “better argument” was that the powers in the Virginia constitutional provision on clemency (Article 5, Section 12) “are meant to apply in particular cases to named individuals.” In fact, “a blanket order restoring the voting rights of everyone would be a rewrite of the law. . . . The notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

Similarly, then–attorney general Ken Cuccinelli (R.) appointed the Rights Restoration Advisory Committee to examine this issue. The committee included not only several Commonwealth Attorneys (i.e., the district attorneys of Virginia counties) and a professor from George Mason University but also Ashley Taylor Jr., a former commissioner on the U.S. Commission on Civil Rights, and Paul Goldman, the former senior adviser to Doug Wilder (D.), the first African-American governor of Virginia.

On May 10, 2013, the committee issued a report concluding that the governor does not have constitutional authority to “institute by executive order” a complete “restoration of rights for all convicted felons in the Commonwealth of Virginia.” Why? Because his clemency power in Article 5 must be harmonized with Article 2, Section 1, which provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored.” If, instead of acting individually to consider each “person” and “his civil rights,” the governor issues a blanket restoration, such “altering [of] the public policy of the Commonwealth as regards the disenfranchisement of persons convicted of felonies clearly would be a legislative act, not an administrative act.”  It would be “difficult” for a court to “sustain a Governor’s exercise of [his] clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided.”

Yet that is exactly what McAuliffe attempts to do through his executive order, in a violation of the separation of powers. He is acting like a superlegislator in voiding the policy that has existed in Virginia “in one form or another since the [Virginia] Constitution of 1830,” according to the Cuccinelli’s report. (The New York Times incorrectly reported that the policy dated only to the Civil War; the Richmond Times-Dispatch, to the state’s 1902 constitution.)

As was completely predictable, McAuliffe played the race card on Friday, saying he was rectifying Virginia’s “long and sad history” of suppressing African-American voting power. This is a bogus and demagogic claim about a policy that applies equally to all felons regardless of race and that was established when black Virginians couldn’t even vote. Similar false claims about the history and origin of felon disenfranchisement have been made in numerous discrimination lawsuits that have been filed under the Voting Rights but have been uniformly unsuccessful.

Supreme Court precedent is that such a provision can be overturned as unconstitutional if it was adopted or applied with a racially discriminatory intent. If evidence existed that the Virginia law was racially discriminatory in its origins or application, many well-funded civil-rights advocacy organizations, as well as the U.S. Department of Justice, would be eager to challenge it. The lack of successful challenges in Virginia indicates that such evidence probably does not exist. As always, liberals want to equate disparate impact with racial discrimination, and it just ain’t so.

It is estimated that McAuliffe’s action will add 3.8 percent to the 5.4 million registered voters in Virginia. That may not seem like a lot, but McAuliffe knows very well that Virginia today is a swing state with recent statewide elections that have been decided by a very small margin. In 2013, the current attorney general, Mark Herring (D.), won his race by only 907 votes. Former Virginia governor Bob McDonnell (R.) won his prior post as attorney general by only 360 votes in 2005.

McAuliffe is continuing a pattern. Last year he vetoed a bill that would have helped clean up voter-registration lists. The bill required county court clerks to send to local election officials information about individuals who were excused from jury duty because they were not U.S. citizens or were no longer residents of Virginia. McAuliffe seems intent on making sure that ineligible and illegal voters can continue to vote.

He is following the example set by President Obama: If you don’t like a law or a constitutional limit on your authority, just ignore it. Rewrite, change, or bend it. The New York Times inadvertently gave the game away when it said that McAuliffe’s “action effectively overturns a Civil War–era provision in the state’s Constitution.”

McAuliffe’s willingness to do anything (and to say anything) to achieve partisan political goals shows a complete contempt for the rule of law and for the constitutional republic that is the United States. What a sad day for the great state that was the home of Thomas Jefferson, Patrick Henry, James Madison, George Mason, and the father of our country, George Washington.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and Roger Clegg is the president and general counsel of the Center for Equal Opportunity. Von Spakovsky is the coauthor, with John Fund, of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.