VA Supreme Court Revokes Voting Rights Of 200,000 Released Felons; Ruling Could Impact Presidential Election

RICHMOND, VA — The Virginia Supreme Court on Friday struck down a series of executive orders issued by Gov. Terry McAuliffe that had reinstated the right to vote for more than 200,000 felons released from prison after serving their time.

McAuliffe had gradually expanded categories of felons who could vote, in April issuing a final order that included all felons who are no longer incarcerated or on parole or probation.

The court, in a 4-3 decision, said that, yes, the governor had the authority to restore voting rights for felons. It ruled, though, that the governor could restore those rights only on a case-by-case basis and that his blanket orders allowing so many felons to participate in elections violated the Virginia Constitution.

The ruling could impact the November presidential election by excluding thousands of otherwise qualified people from voting in Virginia, a hotly contested swing state that could be decided by a handful of votes.

The court's ruling strips voting rights from 206,000 people; nearly 60 percent of them are black, who as a race have historically voted overwhelmingly Democrat. About 37 percent are white.

The court majority's 32-page opinion made no mention of the explicitly acknowledged goal of the ban when it was adopted at at the 1902 Virginia Constitutional Convention: To prevent blacks from voting. Nor did it acknowledge that a disproportionate number of blacks remain disenfranchised under the ban.

Friday's ruling strips the right to vote from one in five of the state's black population and more than 100,000 felons who completed their sentences more than 10 years ago. Eighty percent of the convictions were for non-violent crimes. Most of the convictions were for relatively low-level drug charges secured by aggressive prosecutors beginning in 1980s and the "tough on crime" era.

McAuliffe was defiant after the ruling was handed down, casting the issue as a civil rights battle, as he did when he signed the orders and proclaimed an end to the last vestiges of the the state's Jim Crow-era laws and restrictions on blacks from voting.

He released a statement late Friday saying that he would restore the voting rights on an individual basis, if that's what the court requires, even if it means signing 206,000 orders.

“My faith remains strong in all of our citizens to choose their leaders, and I am prepared to back up that faith with my executive pen,” McAuliffe said. “The struggle for civil rights has always been a long and difficult one, but the fight goes on.”

The ruling was the result of a lawsuit filed by two Republican leaders, Virginia House of Delegates Speaker William J. Howell and Senate Majority Leader Thomas K. Norment Jr., who were joined by four voters. Their argument, which the court adopted in its ruling, contended the Virginia Constitution required that any voting rights restored by the governor could be granted only to individuals, one felon at a time.

Restoring voting rights en masse, they told an agreeable court, was unconstitutional.

“The Supreme Court of Virginia delivered a major victory for the Constitution, the rule of law and the Commonwealth of Virginia. Our nation was founded on the principles of limited government and separation of powers,” the Republican leaders who filed suit said in a joint statement. “Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.”

John Whitbeck, chairman of the Virginia GOP, was more direct. He said in a statement that McAuliffe was trying to “stack the deck for Hillary Clinton” and accused him of a “naked power grab.”

Led by Chief Justice Donald Lemons, the court's majority found that McAuliffe's orders amounted to changing the law.

"Under (McAuliffe's) order, no person who has been convicted of a felony shall be disqualified to vote unless the felon is incarcerated or serving a sentence of supervised release," Lemons wrote in the majority opinion.

"All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis," he continued. "But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception."

The ban was written into the Virginia Constitution by white supremacists in 1902 to bypass the 15th Amendment's mandate that no U.S. citizen could be denied a vote based on race.

At the 1901-1902 Virginia Constitutional Convention, convened for the publicly stated purpose of preventing blacks from voting, the ban on felons was combined with new poll taxes and literacy tests and adopted by delegates.

"This plan will eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county . . . will there be the least concern felt for the complete supremacy of the white race in the affairs of government," Carter Glass, a delegate at that convention, explained to those gathered.

The plan worked. By the end of 1902, all but 21,000 of an estimated 147,000 blacks of voting age in Virginia were eliminated from the state's registration lists.

Literacy tests were killed by the Voting Rights Act of 1965 and the poll taxes were abolished by a U.S. Supreme Court ruling in 1966.

The voting ban, and its impact, remain.

McAuliffe noted in April that he had already restored voting rights to 18,000 felons prior to his April executive order. He said he would immediately sign individual exemptions for the 13,000 felons who have already registered to vote and then would continue signing exemptions from there.

“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”