by James A. Bacon
A persuasive moral case can be made to restore the civil rights of former felons. Once a man has served his time and repaid his debt to society, he should be allowed to participate fully in that society.
As Governor Terry McAuliffe stated Friday in announcing his restoration of civil rights to 206,000 Virginians:
If we are going to build a stronger and more equal Virginia, we must break down barriers to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Former Governor Bob McDonnell thought much the same thing. In 2013, he proposed a series of bills meant to fast-track the restoration of voting rights for non-violent felons. The bill died in committee, but McDonnell recognized what governors like Tim Kaine had acknowledged before him: that the United States is a nation of laws and he did not have the authority to rewrite the law as he pleased.
Perhaps anticipating difficulty in convincing the Republican-dominated General Assembly to pass the law he wanted, McAuliffe has borrowed from the Barack Obama playbook — rewrite the law by executive decree.
Not surprisingly, his sweeping action is being negatively received. ” I am stunned at his broad and unprecedented view of executive power, which directly contradicts how past Governors have interpreted their clemency powers,” said House Speaker William J. Howell, “and I am stunned at his willingness to restore the rights of the most heinous criminals without batting an eye.” He continued:
There are significant constitutional and legal questions regarding the Governor’s authority to take such drastic action. No Governor in the history of Virginia has accepted such a sweeping view of executive power. A.E. Dick Howard notes in his commentaries that Governors have considered the “restoration of civil disabilities on an individual basis.” The Supreme Court has acknowledged the Governor’s authority on the restoration of rights, but only in the context of requests made by individuals. The Court does not appear to have ever contemplated the view taken by the Governor. Most recently, in 2010, counsel to Governor Tim Kaine said ‘a blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.’
We’re not talking about technicalities here. An important policy question is whether restoration should extend to all felons regardless of their crimes, such as murder, rape, child rape, and kidnapping. Any policy, suggested Howell, “should take into account the nature of the crimes committed, whether they have paid back their victims and the court system, and their willingness to serve as productive members of society.”
Another question is how to implement the law. Writing to the American Civil Liberties Union of Virginia in 2010, Mark Rubin, counselor to Kaine, warned of several practical problems that McAuliffe will be sure to encounter as he tries to implement his edict:
Neither the information about voting registration concerning whether a felon has completed his sentence are completely available in centralized state records as they are in other states you cited as models. For example, information about whether a felon has complied with court orders including the payment of restitution to the crime victim or whether the individual has successfully met the terms of probation or parole supervision is only available in local court records. Without having this information available in centralized data bases, a blanket restoration of rights for those who have completed their sentences would place an unprecedented burden on local registrars to determine whether a felon is actually qualified to register. It could also lead to significant confusion in the election process with disputes about an individual’s voting status. The risk of undermining the integrity of the election process is not one the Governor is willing to take as he leaves office.
Kaine said individual felons should be encouraged to petition to have their rights restored, and the law should be changed to see to it that lifelong voting disenfranchisement is not an automatic consequence of felony conviction. But the governor could not unilaterally change the law himself. “The Governor,” wrote Rubin, “will be glad to continue to work … to ultimately persuade the General Assembly that this distinction is one to erase.”
Remarkably, in his announcement Friday, McAuliffe provided no legal justification whatsoever for his action — not even a fig leaf of a justification — nor did he refer to any bills he failed to get bills through the legislature as justification for conducting an end run around the General Assembly. His action looks like a raw power grab times designed to infuriate Republicans and mobilize the African-American vote in November.
Bacon’s bottom line: I defended McAuliffe when legislators tried to pack the GoVirginia board with their own appointees, an unjustified legislative intrusion into executive authority. (See, “Here, Piggy, Piggy!”) Now it’s time to call McAuliffe on the reverse — an usurpation of legislative power. I’m not sure what happens from here. Presumably, lawsuits will be filed. Perhaps the General Assembly will take some official action. One way or the other, McAuliffe needs to be reigned in.