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Why the Virginia GOP Can’t Thwart McAuliffe on Voting Rights

The state constitution is pretty clear, says a man who helped draft it.

Aside from the fact that it is privately funded there are few surprises in the lawsuit Virginia Republicans filed Monday challenging Gov. Terry McAuliffe’s executive orders restoring the voting rights of ex-offenders in the state. The complaint alleges that the governor exceeded his authority under the Commonwealth’s constitution, that he may restore voting rights only to each individual ex-offender instead of restoring that right to all of them, and it asks the state’s judiciary to block what the complaint says is an “unprecedented” executive action.

Even though the Virginia Supreme Court leans conservative, that isn’t likely to happen, says A.E. Dick Howard, a distinguished professor at the University of Virginia School of Law. Howard, a constitutional expert who helped draft the current version of state’s constitution, was asked by McAuliffe to assess the constitutionality of the new rule before the governor announced it. The professor told McAuliffe, and subsequently told us, that the broad new order is consistent with Article V, Section 12 of that constitution which authorizes a governor “to remove political disabilities consequent upon conviction….”

A Virginia governor does have the obligation under the constitution to “communicate” to legislators the “particulars” of every reprieve or pardon “or punishment commuted, with his reasons for remitting, granting, or commuting the same.” But that’s not what the fight is about. The men and women to whom Gov. McAuliffe has restored rights already have served their sentences, and their parole, and their probation, and if they were granted a reprieve or a pardon or a commutation the governor already satisfied his obligation to communicate his decision in any individual case.

Those who object to the restoration of these voting rights, Howard told us, are conflating Gov. McAuliffe’s duty to individually communicate his reasons for a pardon with his more expansive authority to restore voting rights to those already pardoned. From Howard:

Whatever limit, if any, Article V, Section 12, might be thought to place on the Governor’s actions as to remissions, grants, and commutations, it places none whatever on his decision to remove political disabilities. Such decisions lies within his discretion. He clearly has authority, under the Constitution, to remove disabilities from classes of people, as well as to act in individual cases.

The professor also answered another important question to keep in mind as this lawsuit proceeds. The men and women to whom Gov. McAuliffe has restored voting rights cannot have those rights taken away by a subsequent governor who disagrees with the current governor’s views on disenfranchisement. Nor can this group of Virginia citizens have their voting rights taken away by lawmakers. More from Howard:

The action of a governor removing disabilities, like the grant of a pardon, is irrevocable by any other authority. A future governor may act prospectively, but he or she cannot reach back and undo what a predecessor has done. A citizen whose right to vote has been restored can lose that right only as the result of a future felony conviction.

Republican lawmakers and their private backers are counting on the state’s conservative high court to void the governor’s action outright, a decision they hope will return the status of all those ex-offenders to what it was before Gov. McAuliffe ended felony disenfranchisement. They are hoping, in essence, that Howard, the professor, is wrong about the constitution he helped to update. Coming soon, no doubt, to this expedited litigation? Briefs filed by other professors in the Commonwealth weighing in on whether Howard, and McAuliffe, have gotten it right.