July 18th, 2016 Newsletter

This Tuesday, July 19th, the Virginia Supreme Court will hear spoken arguments in a legal challenge to Governor McAuliffe’s executive order declaring to restore political rights to 206,000 convicted felons. The court will hold a special session for the first time since 1993, a sign that the judicial branch recognizes the urgency of this case.

House Speaker, Bill Howell, along with the Senate majority leader Thomas Norment and four other Virginia voters, filed the lawsuit because the governor’s order is an unprecedented case of executive overreach.

The constitution limits the governor’s clemency powers to an individualized, case-by-case power. A plain reading of the Constitution of Virginia and more than 240 years of legislative practice and legal precedent make it evident that Governor McAuliffe clearly violated the constitution, pointing to the words “person” and “his civil rights” in the document as evidence that governors can only “remove political disabilities” individually. This conclusion was also reached by the two previous administrations that studied the issue.

Under the constitution, the governor can restore the rights of individuals on a case-by-case basis. This process works, as is evidenced by the fact that McAuliffe restored the rights of over 18,000 people before issuing his executive order, more than any previous governor.

Not only is the attempted action unlawful, it is also dangerous. He included 40,000 violent felons under his order, meaning that rapists, murderers and child predators could be allowed to serve on juries. And in recent weeks, we learned of countless errors made by the administration. The governor mistakenly restored the rights of a murderer still in prison, a sex offender now deported to Peru, and three gang members in Southwest Virginia. Most recently, an independent commonwealth’s attorney reported the governor restored rights to 132 of Virginia’s worst sex offenders. These offenders are so dangerous that after their criminal sentence is over, the state civilly commits them to a treatment facility where they can remain indefinitely.

Also in debate is the actual list of felons believed to have their political rights restored. In an opinion issued last week, the Virginia Freedom of Information Advisory Council said the list of roughly 206,000 felons believed to meet the criteria of McAuliffe’s sweeping rights restoration order does not qualify as an executive working paper. The council stated the exemption would no longer apply if the list was distributed to the Virginia Department of Elections for voter registration purposes. The department has used the list, shown to have glaring errors, to remove felons’ names from a list of prohibited voters within the voter registration system.

The governor’s office still plans to continue to keep the list confidential until an official clemency report is made to the General Assembly next year, stating that the list is a working paper until uploaded into the voter system, which will then be a protected election paper, as specified by the voter-data exemption.

The list is of incredible interest to the public and I am very interested to see what the Tuesday’s Supreme Court hearing outcome will bring forth. I strongly believe the case-by-case basis that each administration before has used, clearly works without the errors and omissions of the current executive order the Governor passed hastily and without much review.

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