On April 22, 2016, Gov. McAuliffe issued an Executive Order restoring the right to vote to approximately 206,000 citizens who had been convicted of a felony in the past, had served their prison time and completed the terms of their probation. The restoration order applies to citizens who were convicted of a wide variety of offenses, from larceny in excess of $200 to certain driving offenses to robbery and more serious felonies. (Citizens who have their voting rights restored still have a felony conviction record and must still pay their fines and costs; they have not been pardoned or given clemency.)

Many have applauded his action and others have opposed it. For me, the issue revolves around two questions. First, does the governor have the constitutional authority to do this? And, second, is it good social policy to do so? Republicans in the General Assembly immediately challenged the governor’s actions, saying that he lacked constitutional authority to do it, and now are threatening to file suit to block the restorations. Beyond the constitutional issues, some criticism has focused on restoring rights to violent felons, even though they represent a relatively small number compared to the more than 200,000 who had their rights restored.  

Restoration of Rights in Virginia
Restoration of rights is widely recognized as a good idea. In thirty-eight other states, the right to vote is generally restored almost automatically following a felon’s release from incarceration and parole.  Recent Virginia governors, both Democratic and Republican, have worked to restore the rights of Virginia citizens who had been convicted of a felony, served their time and completed their probation. Governor Warner was able to restore the rights of 3,486 individuals during his term, Governor Kaine restored another 4,402, and Governor McDonnell pushed even harder, restoring the voting rights of 8,111 Virginia citizens.   These governors, as well as substantial numbers of Virginians, believe that when a person has served their time, they should regain the ability to vote. McAuliffe’s action accelerated the restoration process dramatically.       

Virginia is one of the most restrictive states in the country in terms of restoring voter rights. Before Governor McAuliffe’s Executive Order, Virginia had been unique in its requirement that individuals file individual petitions requesting the governor to act. This process is costly and cumbersome, and inhibits restoration.

There is a long and unfortunate history in Virginia of using the law and the Constitution to prohibit groups of people from voting, targeted primarily at African-Americans following the Civil War and into the 20^th century. In fact, the Virginia Constitution of 1902 included provisions on felony disenfranchisement and other voting measures that one prominent legislator commented were designed to eliminate “every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”

To address the lengthiness of the process, proponents of restoration have offered a number of solutions, from a constitutional amendment that would grant automatic restoration to various bills in the General Assembly. All of these efforts have been blocked by conservative Republicans who have systematically been increasing barriers to discourage citizens from voting. We have seen a wide variety of initiatives over the last few years designed to make it more difficult for voters to cast their ballot. And in the budget just passed by the General Assembly, Republicans eliminated monies to fund additional positions designed to assist applicants for voting rights restoration. In the face of this resistance, Governor McAuliffe decided to act. But does he have the constitutional authority to do so?

Executive Authority in Virginia
Assessing the legal argument requires us to look first at the actual language of the Virginia Constitution. Article V, Section 12, states that the power to “remove political disabilities…” (restore rights) is vested solely in the Governor. The Virginia Constitution does not limit this sweeping power. Article II, Section 1, provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Nothing in the Governor’s Order undoes this provision of the Virginia Constitution; today, anyone convicted of a felony still loses their right to vote. The only way that right can be restored is by the action of the Governor or another appropriate authority.

The Republicans have reportedly decided to file a lawsuit challenging the governor’s constitutional authority to issue this sweeping restoration of voting rights. Many attorneys, myself included, are doubtful that this will succeed, and do not support the use of taxpayer dollars in any lawsuit contesting the Governor’s Executive Order. To date, Republicans have spent just under $100,000 of taxpayer money defending passage of a voter ID law which makes voting harder for some Virginians, and the case is not yet concluded. This is in addition to over $3.5 million of taxpayer money spent defending three redistricting lawsuits that would make state and federal districts more competitive. While Republican leaders have said that they will not use taxpayer money to fund a lawsuit against the Governor’s executive order, there is no guarantee this will not change once they have discussed the matter fully with their attorneys.

Social Policy
We are a society that values redemption and second chances. When people have served their time in prison as dictated by the justice system, they are released from incarceration and we should want to see them restored to a productive life. We want them to be able to get a job, support their families, and be involved in their communities in a positive way. Many of these individuals want to find a way to contribute to society and work for a better future. Restoring their right to vote is one way that we can help them do that. Will they register – and will they vote? Only time will tell. But Governor McAuliffe has certainly given them the opportunity once again