This column by ACRU Policy Board member Charles J. Cooper was published June 2, 2016 by the Wall Street Journal.
Virginia’s Gov. Terry McAuliffe recently signed an executive order restoring, with the stroke of a pen, the right to vote for all 206,000 Virginia felons who have completed their terms of incarceration and supervised probation. This includes more than 40,000 felons convicted of violent crimes. The order also restores the rights to serve on a jury and to seek and hold public office, and it makes each of them eligible to ask a court to restore their right to own and carry firearms.
The sweeping order has no precedent in Virginia history, and last week Virginia’s Republican House Speaker William J. Howell and Senate Majority Leader Thomas K. Norment Jr. and four other state voters filed a challenge to its constitutionality. Their petition asks the Virginia Supreme Court to invalidate the governor’s order before votes are cast in November, lest the validity of the general election be cast into doubt. Recognizing the urgency of the situation, the state’s high court issued an order on June 1 calling a special session of the court to hear argument in the case on July 19.
The executive order defies the text of the Virginia Constitution. Article II flatly prohibits all felons from voting, but it grants the governor a narrow power to restore voting rights to deserving felons on an individual, case-by-case basis. Nothing in the constitution gives the governor power to restore political rights en masse to virtually all felons, no matter how heinous or numerous their crimes.
Gov. McAuliffe, a Democrat, has acknowledged that for 240 years none of the state’s 71 other governors exercised wholesale clemency power. In 2010 another Democratic governor, Tim Kaine, expressly declined to issue a blanket restoration order like Gov. McAuliffe’s, concluding that such an order would “rewrite” the law rather than follow it. Three years later, a bipartisan committee convened and headed by Virginia’s then-attorney general, Ken Cuccinelli, advised Republican Gov. Bob McDonnell that a blanket order restoring voting rights would be unconstitutional.
Gov. McAuliffe has attempted to justify his order by claiming that Virginia’s felon-disenfranchisement provision was introduced into the Constitution after the Civil War in a racist effort to disenfranchise African-Americans. He told The Nation magazine in April that “in 1901 and 1902 they put literacy tests, the poll tax and then disenfranchisement of felons into the state’s constitution.”
This is not true. The prohibition on felon voting dates back to 1830 — a time when African-Americans were prohibited from voting altogether. The felon disenfranchisement provision could not have been introduced for the purpose of disenfranchising them. No wonder the federal courts have uniformly rejected the claim that Virginia’s prohibition on felon voting discriminates on the basis of race.