Virginia Supreme Court to Hear Rights Restoration Lawsuit on Tuesday
Tomorrow morning, the Virginia Supreme Court will convene an extraordinary special session to consider the case in Howell v. McAuliffe, the lawsuit filed by Virginia Republicans against Governor McAuliffe’s unprecedented blanket restoration of rights to convicted felons via an executive order issued April 22nd of this year.
The high-stakes case is being adjudicated on an expedited schedule given the gravity of McAuliffe’s order, not only on voter registrations for November’s election, but also, in response to a deluge of complaints from prosecutors and law enforcement concerning the more than 42,000 violent felons – 20.7% by McAuliffe’s statistics – convicted of violent crimes who will now be eligible to serve on juries.
The public has been invited to attend the hearing of this pivotal case at the courthouse at 100 N 9th Street in Richmond. Anticipating the overflow, the Virginia Supreme Court has set up two satellite rooms to accommodate visitors who can’t fit into the main courtroom, where a live video feed of the proceedings will be displayed.
The doors will open at 7:30 AM and attendees will be seated on a first-come, first-served basis in the courtroom and the satellite viewing rooms. All attendees must be seated by 9:00 AM if they wish to view the proceedings, without exception.
In an email to his supporters detailing his efforts in fighting McAuliffe’s order, Delegate Rob Bell, one of three Republicans running to replace Democratic Attorney General and lawsuit opponent Mark Herring, previewed the case to be made by his House and Senate Republican colleagues as well as the remedies they seek. Writing on the issue, Bell explained:
Legal Arguments
“The Constitution expressly prohibits a felon from voting unless “his” rights have been restored. Every prior Governor has interpreted this to mean that restoration can only occur after individualized review, and legal advisors to Governor Kaine and Governor McDonnell explicitly rejected the constitutionality of a blanket restoration.”
“Attorney General Herring argues that the Constitution grants the Governor the power to decide whether, when, and how to grant clemency. Herring also encourages the Court to dismiss the suit on procedural grounds.”
What ought to happen?
“First, the Court should take this case and resolve the issue. While a court can often find procedural excuses to avoid ruling, Virginia has pending jury cases (including a death penalty case) and the coming 2016 election. Virginia needs to know – right now – if McAuliffe’s order is Constitutional.”
“Second, the Court ought to rule in our favor. When considering how to apply two constitutional provisions, the Supreme Court is obliged to give both of them meaning and force; it should not adopt an interpretation that would eliminate part of the Constitution. To allow McAuliffe to perform a blanket restoration would enable him to ignore the felon voting prohibition altogether and would effectively rewrite the Constitution.”
“The best way to give meaning and force to both these provisions is for the Court to allow restoration, but only on a case-by-case basis. Such a ruling would prevent unconstitutional overreach while preserving the Governor’s clemency power. As we say in our brief, “Governor McAuliffe is entitled to disagree with the policies of Virginia’s Constitution, but he is not entitled to nullify those he dislikes.”
Republicans have been critical of Governor McAuliffe’s executive order, both for its precedence-defying process, as well as its impacts beyond the ballot box.
Speaker Bill Howell wrote an op-ed piece in the Fredericksburg Free-Lance Star that further clarified the concerns of the plaintiffs in the suit.
“Virginians believe in second chances. Our constitution sets out a process by which convicted criminals can have their rights restored when they are ready to again become productive members of society. Under the constitution, the governor can restore the rights of individuals on a case-by-case basis. This process works, as is evidenced by the fact that McAuliffe restored the rights of over 18,000 people before issuing his executive order, more than any previous governor.
But now, the governor has thrown that individualized process—and the constitution—to the wind. Instead of engaging the legislature and having a debate about who should have their rights restored, when and how, the governor opted for Washington-style executive action. He chose overreach instead of outreach, dictatorial power over a political debate.
The constitution limits the governor’s clemency powers to an individualized, case-by-case power. In fact, the previous two governors explored what McAuliffe is attempting to do, and concluded specifically they lacked such power. Democratic Gov. Tim Kaine’s top counsel said attempting a mass restoration of rights would be a “rewrite of the constitution.”
Never before in the 240-year history of the commonwealth has a governor taken such a broad and expansive reading of his clemency power; and for good reason. By issuing automatic mass-restoration orders, McAuliffe is effectively nullifying the constitution’s provision stripping felons of their political rights. If the governor can exercise his clemency power in this way, what is to stop a future governor from applying it differently? What if a future governor decided to issue mass pardons for anyone who violates Virginia’s gun laws?”
As the Speaker noted, these complaints have largely focused on the order’s blanket restoration, which in its haste and lack of attention to detail, has resulted in consequences unintended even by the McAuliffe Administration.
Following its signing, the order was found to be riddled with problems, some of which contradicted McAuliffe’s own intent. High-profile killers won restorations of their rights, as did fugitive sex offenders, as well as 132 civilly-committed sex offenders deemed too dangerous for release to the community.
The McAuliffe Administration also contaminated the process with partisan politics, giving advance notice to Democratic allies and activist groups, according to emails obtained by the Richmond Times-Dispatch in response to a Freedom of Information Act request. No such advance notice was given to prosecutors, law enforcement, or voter registrars.
While the order has generated no shortage of controversy, the Virginia Supreme Court’s willingness to hear the Republican lawsuit on an expedited schedule signals a resolution coming soon, bringing closure to an issue which cannot be allowed to drag on with an election looming and thousands of jury trials pending.
House Republicans have published their legal brief online, which may be read on their website.
