At the same time that the Nation is moving forward with a major political party nominating a woman as candidate for the presidency of the United States, Virginia institutions are clinging to past traditions that should have been abandoned decades ago. The Supreme Court of Virginia ruled that Governor Terry McAuliffe exceeded his authority in a blanket restoration of the voting rights of 206,000 felons who have completed their sentences. There are a number of serious concerns about the Court’s 4-3 decision.
While the Chief Justice who wrote the opinion did not dispute the fact that the Governor clearly has the authority to restore voting rights—as Professor A. E. Dick Howard, the chief drafter of the current Virginia Constitution, and other experts testified—he quibbled with the method the Governor chose in restoring the rights. The majority of the Court found that the restoration of rights needed to be an individual action and not a class action although there is no provision in the Constitution requiring it. The Court decided to micromanage the process of the executive in carrying out its authority. If such a decision is extended to other executive actions, the Court could make the Governor powerless. Courts have most often deferred to the legislature and to the executive to carry out the powers that they have under the Constitution.
A second concern is that the Court did not apply a rigorous requirement that the Republican legislators who brought the case show that they would be harmed by the action of the Governor. Of course, we all recognize that new voters coming into the electorate might be intimidating to elected officials who could not be sure how they might vote, but that is not evidence enough that the Court should intervene in an executive action to protect a legislative majority of a particular party. An action like this one raises doubts as to whether the Virginia Supreme Court could be expected to rule fairly in a disputed election outcome.
Finally, the Court used the history of the actions, or in this case the inaction, of previous governors to limit the power of the incumbent governor. The powers of the governor are established in the Constitution and not by history. In fact, if the Justices want to review Virginia’s history on voting rights it will find decades of efforts by the parties in power whether Democrat or Republican to limit the electorate as a way to maintain power. Whether it was the poll tax, blank sheet voter registration, literacy test, denying felons the right to vote, or voter identification, Virginia has had them all. One in five African American males are being denied the right to vote, until their rights are restored. The Justices should have been more concerned with the voting rights of citizens than the concerns of legislators wanting to hang onto their jobs.
Governor McAuliffe is moving forward in restoring the voting rights of felons as the Court required but not limiting the number restored. Fortunately, Virginia’s reputation on the national scene will be enhanced by the nomination of our favorite son Senator Tim Kaine for Vice President who is a champion of civil rights.