Gov. McAuliffe Vows to Restore Felon Voting Rights After Blanket Clemency Struck Down

By Jeannette Richard | July 25, 2016 | 5:06pm EDT
Virginia Gov. Terry McAuliffe signing an executive order in Richmond on April 22, 2016 restoring voting rights to over 200,000 felons. (AP photo)



( -- Virginia Governor Terry McAuliffe vowed to sign about 206,000 individual executive orders restoring voting rights to felons who have completed their sentences and are no longer on probation after the state Supreme Court struck down a sweeping executive order he signed in April.

“I will continue to sign orders until I have completed restoration for all 200,000 Virginians. 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.

"The struggle for civil rights has always been a long and difficult one, but the fight goes on,” McAuliffe said in a statement reacting to the court decision.

Since Virginia is considered a swing state, the 206,000 newly eligible voters could have a substantial impact on the November presidential election. In 2012, President Obama won the presidential race in Virginia by about 150,000 votes.

Convicted felons in Virginia are prevented from voting by the state’s constitution, which states “that no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”

Citing the power granted to the governor “to remove political disabilities consequent upon conviction for offenses” by the state’s constitution, McAuliffe signed an executive order April 22 restoring the right to vote, hold office, serve on a jury, and act as a notary public to all convicted felons who had finished serving their sentences and were no longer on probation.

In announcing his executive order, the governor also promised to issue similar orders every month to cover all felons who had completed their sentence or probation during the previous month, expressing concern that barring felons from voting “disproportionately affects racial minorities and economically disadvantaged Virginians.”

“If we are going to build a stronger and more equal Virginia, we must break down barriers to participation in civic life for people who return to society seeking a second chance,” he said.

However, Virginia House of Delegates Speaker Bill Howell challenged the order in court, arguing that the governor’s clemency power did not extend to such a sweeping, indiscriminate order.

“When convicted felons have completed their sentence and paid their debt to society, they deserve the opportunity to demonstrate they once again deserve their civil rights. However, there should be a clear, consistent, and delineated policy that applies fairly and equitably.

“That policy should take into account the nature of the crimes committed, whether they have paid back their victims and the court system, and their willingness to serve as productive members of society,” Howell continued, noting that the order applied to “criminals who have committed even the most heinous violent crimes including murder, rape, child rape, and kidnapping.”


The Virginia Supreme Court blocked McAuliffe’s order, ruling that the constitutional requirement that the governor “communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same” does not allow for a blanket clemency.

“This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons,” Chief Justice Donald Lemons wrote in the majority opinion, noting that none of Virginia’s 71 previous governors had ever claimed the power to issue such a sweeping executive order.

“The practical effect of this Executive Order effectively reframes Article II, Section 1 to say: ‘No person who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of supervised release,’” Lemons noted.

“This rule-exception inversion may appear subtle to some, but it undermines the very basis for the legitimate use of the executive’s restoration powers….

"The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorial nature of Governor McAuliffe’s Executive Order crosses that forbidden line,” he continued.

“The clemency power may be broad, but it is not absolute,” the judge added, noting that “at least 69 resolutions and bills addressing categorical exclusions to the voter-disqualification provision in Article II, Section I were offered during each of the legislative sessions from 2004 through 2016,” but “all have failed to pass the General Assembly.”

However, McAuliffe said he would circumvent the court ruling by signing individual orders restoring voting rights for all 206,000 felons. 

“The men and women whose voting rights were restored by my executive action should not be alarmed,” the governor reassured them.

MRC Store