by David M. Reutter

By an executive order signed on April 22, 2016, Virginia Governor Terry McAuliffe restored the voting rights of more than 206,000 convicted felons. The order not only allowed former prisoners the right to vote in the November 2016 election, it also let them run for public office, serve on a jury and become a notary public.

The order fulfilled one of McAuliffe’s campaign promises; the state’s constitution disenfranchises all convicted felons unless the governor restores their right to vote.

However, Virginia’s Republican lawmakers made McAuliffe’s executive order short-lived by filing suit to have it rescinded. In addition to arguing the governor lacked authority to issue the order, they complained that he had restored voting rights to 132 sex offenders who were still in custody and to several convicted murderers on probation in other states.

“Governor McAuliffe’s flagrant disregard for the Constitution of Virginia and the rule of law must not go unchecked,” said Senate Majority Leader Tommy Norment.

The state Supreme Court ruled against the governor, finding he could not restore voting rights in a blanket manner, and threw out the executive order on July 22, 2016. By that time some 13,000 ex-felons had already registered to vote, and their registrations were nullified. Howell v. McAuliffe, 292 Va. 320, 788 S.E.2d 706 (Va. 2016), cert. denied.

One month later, McAuliffe announced that he had restored the rights of the 13,000 former prisoners who had previously registered to vote on a case-by-case basis, leaving them free to re-register.

The difference between McAuliffe’s original order and his revised approach was largely procedural. Instead of simply announcing that felons who had completed their sentences were eligible to vote, his administration began mailing a notice to each affected person.

Officials review each record, but only to confirm that the individual has completed their sentence and any term of supervised release. The governor does not individually sign the orders or use an autopen, but an image of his signature is printed on each letter, according to spokesman Brian Coy.

Governor McAuliffe’s predecessor, Robert F. McDonnell, had instituted a similar approach, automatically sending a letter to ex-felons who met his criteria for restoration of their voting rights. But McDonnell did so only for nonviolent felons, and required them to pay any fines or restitution they owed. As with his original order, McAuliffe said he will not require payment or distinguish between violent and nonviolent offenders.

State lawmakers tried to have McAuliffe held in contempt for individually restoring the voting rights of former prisoners, but the Virginia Supreme Court nixed that effort in September 2016, upholding the governor’s ability to reinstate voting rights on a case-by-case basis.

Thirty-eight states and the District of Columbia automatically reinstate the right to vote to former prisoners upon completion of their sentence and any supervised release. Only Virginia, Iowa, Kentucky and Florida impose lifetime disenfranchisement unless an ex-felon’s voting rights are restored by a state official, such as the governor.

Calling the restoration of voting rights “an issue of basic justice,” McAuliffe stood beside a civil rights monument in Richmond’s Capitol Square when he said: “I personally believe in the power of second chances and in the dignity and worth of every single human being. These individuals are gainfully employed. They send their children and their grandchildren to our schools. They shop at our grocery stores and they pay taxes. And I am not content to condemn them for eternity as inferior, second-class citizens.”

In February 2017, amid heated debate that invoked Virginia’s racist past, the state Senate narrowly passed a proposed constitutional amendment by a vote of 21-19 that would have changed how and whether felons regain their voting rights. The amendment, Senate Joint Resolution 223, would have retained Virginia’s rule that convicted felons lose their voting rights, but require the governor to develop a process to automatically restore the rights of nonviolent felons once they have completed their sentences, including time on probation or parole, and have paid any applicable fines, fees or restitution.

“Right now it varies from governor to governor,” said Senator Norment, who sponsored the proposed amendment.

However, the amendment also would have restricted the governor’s broad power to restore voting rights to any ex-felon. In addition to other rules that could be prescribed by law, the governor would only be able to restore the rights of felons who apply at least five years after paying all fines and fees and completing any probation, parole or suspended sentence, and who have not had any new felony convictions or “misdemeanor convictions involving moral turpitude” in the intervening years.

State Senator Mamie Locke objected to the amendment.

“I am somewhat baffled as to why, in a democracy – which means government by the people – we continue to create barriers to citizens’ participation in a basic process of that democracy, which is voting,” she said. “This is a cynical, dishonest and disingenuous proposal that the people of Virginia will surely reject.”

Constitutional amendments must be approved by the General Assembly in two separate years with a statewide election in between, and then have to be approved by voters. The Virginia House of Delegates killed similar proposals in committee that were introduced in the first part of the session, and in February 2017 the committee killed Norment’s resolution.

On April 27, 2017, McAuliffe announced that his work to restore the voting rights of a record number of ex-felons was his “proudest achievement” while serving as governor. He said he had restored the rights of over 168,000 people during his term in office.

Governor McAuliffe is up for reelection, and his gubernatorial opponent, Ed Gillespie, ran ads in October 2017 that attacked the administration’s efforts to restore voting rights to former prisoners.

“Ed’s ads suggest that rather than continue the progress that we have achieved, he would reinstate a racist, fringe policy that would send the Commonwealth squarely back to the Jim Crow era,” McAuliffe stated in response. 

Sources: Associated Press, The Atlantic, Christian Science Monitor, Washington Post, WTOP, NPR, Huffington Post, www.richmond.com

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