“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.”

This is the mandate of Article I, § 2 of the Virginia Constitution.  But, how much authority does a Virginia governor really have to restore voting rights to felons? The answer seems to be that a Virginia governor has fairly broad authority to restore voting rights to felons so long as he does so on an individualized basis. The next question becomes: what counts as an individualized basis? That answer may be gleaned from the Virginia Supreme Court’s recent decision not to find Governor McAuliffe in contempt of court for his actions taken in August to restore voting rights to felons.

On August 31, 2016, the GOP submitted a motion asking the Court to order Governor McAuliffe to “show cause” to prove that he had not violated the Court’s earlier decision in Howell v. McAuliffe. In this case, the Court found the governor’s attempt at mass vote restoration via executive order to be unconstitutional.  Specifically, the Court determined that Governor McAuliffe could not do “a sweeping order restoring the right to vote to an entire class of unnamed individuals.” Rather, the governor must restore voting rights on an individualized basis. After this ruling, the governor implemented a new plan which involves mailing to each affected felon a notice of the restoration of his or her voting rights. The GOP argued in its Motion to Show Cause that these actions constitute the same constitutional violation as did the governor’s efforts at vote restoration before Howell v. McAuliffe.  However, on September 15, 2016, the Court denied the GOP’s motion, declining to order Governor McAuliffe to prove that he is complying with its ruling in Howell v. McAuliffe.  The Court has yet to state its rationale for denying the motion.  I believe that the GOP did not prevail on its motion because the GOP’s arguments did not sufficiently allege how the governor’s actions failed to meet the Court’s “individualized assessment” standard for how the governor may exercise his clemency powers.

The Court in Howell v. McAuliffe was primarily concerned with the scope of the governor’s actions.  In particular, the Court appeared to want to reign in and establish parameters for a governor’s clemency powers. The standard which can be gleaned from the opinion is that a governor who wishes to draw upon the clemency power to restore a convicted felon’s right to vote must restore the right to vote on an individualized basis. The Court noted that, prior to Howell v. McAuliffe, the governor’s administration simply announced that any felon whose sentence is complete was eligible to vote. The Court interpreted these actions to be too unrestrained in that the governor restored votes to a vast group of people without considering the people’s individual circumstances. Following the decision, the governor’s administration began mailing each eligible felon a notice advising the individual of his or her vote restoration. As the Court denied the GOP’s Motion to Show Cause and therefore did not find a constitutional problem with the governor’s new mailing process, it appears that the act of mailing felons a notice of the reinstatement of their voting rights is an “individualized process” which the Court found to fit within its standard.

The GOP’s Motion to Show Cause was likely unpersuasive to the Virginia Supreme Court because the GOP’s focus in its arguments did not align with the Court’s focus in Howell v. McAuliffe. Whereas the Court seemed primarily concerned with the scope of executive power, the GOP’s motion emphasized other factors. One of the GOP’s main points was that Governor McAuliffe’s actions in August were identical in their effect to his prior efforts in that the new mailing process “effectively suspend[s] Virginia’s general constitutional prohibition against felon voting for over 200,000 felons” and restores rights to the same class of people at issue in Howell v. McAuliffe.  However, this does not establish that the governor’s actions were not done on an individualized basis, which is what the Court was concerned about. The GOP’s motion also repeatedly stressed the governor’s alleged intentions to subvert the Virginia Constitution and argued that the governor’s actions exceeded his authority under the Virginia Constitution.

One of the GOP’s stronger points was that the governor’s actions were completely contrary to Virginia’s legal history of not allowing convicted felons to vote. The GOP probably mentioned this history because the Court noted in Howell v. McAuliffe that, while it was not bound by longstanding practices, “a page of history is worth a volume of logic.” However, I believe that the GOP’s motion ultimately missed the mark because it spent more time arguing extrinsic factors instead of focusing its argument on how the governor’s actions were not taken on an individualized basis and were therefore unconstitutional. For now, Governor McAuliffe’s plan of mailing notices to individual felons does count as occurring on an individualized basis, meeting the Virginia Supreme Court’s standard in Howell v. McAuliffe. Come November 8th, there may be many more people at the polls in Virginia than ever before.

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