Bell: McAuliffe Challenge at the Virginia Supreme Court
The Virginia Supreme Court heard oral arguments Tuesday morning in the suit we filed to stop Governor McAuliffe’s blanket restoration of felons’ rights. The suit,brought by General Assembly Republicans, challenges McAuliffe’s April 22 executive order as unconstitutional overreach.
McAuliffe’s lawyer argued that the petitioners lacked standing to bring their claim and made additional procedural arguments for dismissal. On the merits, he argued that it was an “easy case” because the Virginia Constitution grants the Governor unreviewable power to decide whether, when, and how to grant clemency.
Our lawyer acknowledged that there are two Constitutional provisions in play: (1) a general prohibition against felons voting, and (2) an exception that allows the Governor to restore the right to a felon to vote and sit on a jury. He argued that the best way to apply and reconcile these provisions – to give them both effect – is to allow restoration, but only on a case-by- case basis. This was the interpretation of legal advisors to both Governor Kaine and Governor McDonnell , and in fact no prior Governor has ever attempted a blanket restoration of rights.
All of us listened closely to the questions from the bench. As has been widely reported, McAuliffe’s list of restored felons contained numerous errors, and included both murderers and fugitive sex offenders. McAuliffe has refused to release the list, even pursuant to FOIA. This clearly troubled Justice Mims, who stated the Governor’s refusal “may be the fulcrum on which standing turns.”
McAuliffe’s lawyer also argued that Virginia law already allows three voters to challenge another voter’s registration in court. Again, the justices seemed unimpressed, as this could result in separate proceedings against each of the 206,000 restored felons who registered to vote, and the law requires this be done within six months of each one’s registration date. (This process would also be especially difficult given the Governor’s refusal to release his restored felons list.)
Our lawyers worked very hard to get the case before the Supreme Court quickly, and although McAuliffe opposed an expedited hearing, the Court recognized the urgency and scheduled today’s special session – the first such session since 1993.
Given the importance of the case, it was no surprise that the justices appeared fully focused on the case. (Five of the seven asked questions.) How will they rule? The courtroom consensus was that the justices were careful and didn’t tip their hands.
A decision is expected promptly.
Del. Rob Bell represents Virginia’s 58th District (Charlottesville) in the General Assembly and is a candidate for the Republican nomination for attorney general in 2017.
