By Christopher Zoukis
Carrying out their earlier pledge to seek court reversal of Gov. Terry McAuliffe’s executive order restoring voting rights to an estimated 206,000 former inmates, Republican leaders of the Virginia legislature filed a lawsuit on May 23, claiming McAuliffe’s action violates the state constitution.
In Howell v. McAuliffe, filed in the Virginia Supreme Court, Speaker of the Virginia House of Delegates William J. Howell is the lead plaintiff, joined by state Senate Majority Leader Thomas K. Norment Jr. and four other state residents.
The governor on April 22 proclaimed he was dropping the state constitution’s lifetime ban on felons’ post-release voting, which dates back to the Civil War era. Other restrictions on state residents with felony convictions include serving on juries, holding elective office, possessing firearms, and becoming notary publics.
Under McAuliffe’s “Restoration of Rights” order, former felons after completing their sentences and any post-release conditions, such as parole or probation, will be automatically able to register to vote. State officials say nearly 5,000 former inmates have registered to vote since the governor’s order. The legislators’ lawsuit asks for the cancellation of those registrations, and a court order forbidding further automatic voter eligibility for persons with felony convictions.
Republicans, a majority in both state legislative chambers, denounced the governor’s action, claiming it was motivated to increase Democratic turnout for elections this November. McAuliffe, who chaired Hillary Clinton’s unsuccessful 2008 presidential run, once headed the Democratic National Committee and is a long-time associate of Bill and Hillary Clinton, denied the charge.
McAuliffe defended signing the order, calling it his “greatest day” as governor. He argued restoring voting rights was justified for ex-offenders who had “paid the price” and belong “back in society.” When the governor announced the order in April, his administration did not release data on the type of crimes committed by those whose rights he was restoring. Weeks later, it put out a statistical study saying 79% of those covered had not committed violent crimes and overall affected ex-offenders had on average been released 10 to 20 years earlier.
Opponents sought fuller data and countered that the governor’s figures meant 40,000 ex-offenders with convictions for violent crimes might be allowed to serve on juries and own firearms (though local courts would review gun applications by now-eligible former felons).
The lawsuit’s challenge turns on whether Article V, Section 12 of the state constitution -- which empowers a governor to “remove political disabilities consequent upon conviction” -- lets McAuliffe make blanket restoration of rights for entire classes of ex-prisoners, or requires case-by-case analysis and determinations for specific individuals.
The lawsuit asked for accelerated hearing; the state attorney general’s response opposed that, saying there was no need to rush, since plaintiffs took over a month to bring the case. A hearing has been scheduled for July 19. The state claims if the governor is unable to issue large-scale restoration orders, he will issue them individually.
Besides wrongly viewing the governor’s powers, the McAuliffe administration claims, the plaintiffs lack standing to bring the challenge. The same day the state made its response, a statement from McAuliffe called the lawsuit “frivolous” and a “partisan attempt” to deny civil rights to over 200,000 state citizens.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com