Late yesterday, Graham Moomaw of the Richmond Times-Dispatch reported on an “amicus brief, filed by Republican, Democratic and independent commonwealth’s attorneys who say they represent 55 percent of Virginia residents, [which] supports a Republican challenge seeking to have McAuliffe’s order overturned.” In response, Moomaw reports, “McAuliffe spokesman Brian Coy said the administration is happy to work with commonwealth’s attorneys on the order’s implementation, but said nothing in the filing suggests the governor lacked the authority to issue the order.” Also, Del. Marcus Simon (D-Falls Church) tweeted: “it’s not a good brief. All policy arguments. Very light on law and precedent. As a lawyer I’m embarrassed for anyone who signed on.”
Personally, I tend to agree with Del. Simon. I also agree with many others – Virginia House Democratic Leader David Toscano, for instance – that the plain language of the Virginia constitution is very clear that the governor DOES have the power ” to “remove political disabilities…” (e.g., restore ex-felons voting rights), and that nothing else in the Constitution prohibits the governor from doing that. So…seems to me that the McAuliffe administration has an extremely strong case, and that if the state Supreme Court simply follows the Virginia Constitution’s plain language, they will not rule in favor of the Republicans suing to block McAuliffe’s restoration of rights to ex felons in Virginia.
To read the full Amicus brief by “a bipartisan group of 43 Democratic, Republican, and Independent Commonwealth’s Attorneys,” click here. First, here’s their argument for why they are interested in this case.
Amici have an interest in this case because Governor Terence R. McAuliffe’s executive order affects several important aspects of Commonwealth’s Attorneys’ duties. First, the order
affects the criminal jury selection process, with which Commonwealth’s Attorneys are intimately involved, because the order purports to restore the political rights, including the right to serve on criminal juries, of more than 200,000 individuals convicted of felonies. Second, the order allows the 200,000-plus convicted felons to petition a circuit court for the restoration of their firearm rights, and Commonwealth’s Attorneys are responsible for deciding whether those petitions should be opposed. And third, the order allows the felons to register to vote, and Commonwealth’s Attorneys may become involved in litigation about whether those individuals are validly qualified to do so.
Now, here’s a summary of their argument.
The Constitution and laws of Virginia generally prohibit convicted felons from exercising certain rights and privileges. The Constitution itself prohibits felons from voting, Va. Const. art. II, § 1, and from holding public office, id. art. II, § 5. Virginia statutes prohibit felons from serving on a jury, Va. Code § 8.01-338, and from serving as a notary public, id. § 47.1-23.
The Virginia Constitution, however, vests the Governor with power to remove these political disabilities. Va. Const. art. II, § 1 and art. V, § 12. By statute, felons also may not possess firearms, and they may not petition a circuit court to have their firearm rights restored unless they first obtain an order from the Governor removing their political disabilities. Va. Code § 18.2-308.2(C).
Amici support the restoration of political rights to deserving felons who have paid their debt to society and have returned to their communities as law-abiding, contributing members. But the Governor’s blanket restoration order makes no distinction among felons, treating the nonviolent felon the same as the cold-blooded killer, and the one-time offender the same as the career criminal. The Governor’s order thus hinders Commonwealth’s Attorneys’ ability to discharge their duties.
Prior to April 22, 2016, Virginia law imposed two layers of individualized review before felons could serve on a jury or possess a firearm. First, the Governor would make an individualized determination of whether the felon deserved to have his rights restored. Second, the judicial branch and Commonwealth’s Attorneys would determine whether the felon should serve on a particular jury or have his firearm rights restored. Governor McAuliffe’s executive order eliminates the first of these two important layers of review, upsetting Virginia’s delicate constitutional and statutory scheme and shifting the entire burden to courts and Commonwealth’s Attorneys to screen felons properly before seating them in the jury box or restoring their gun rights.
The Governor’s executive order has also resulted in the improper restoration of the rights of individuals who are still in prison or on supervised probation, including some for murder, sex offenses, and other violent felonies. A few of these individuals have been identified, and the Governor has purported to withdraw his restoration of their rights, but his authority to revoke an order restoring political rights is uncertain. And the number of felons who improperly appear on the voter registration list, and who may yet vote, serve on juries, or petition to have their firearm rights restored, is unknown. The surest way for Commonwealth’s Attorneys to identify these individuals would be for the Governor to release the list of the 200,000-plus felons whose rights he purports to have restored, but the Governor has refused to release that list despite a request for it under the
Virginia Freedom of Information Act.
The issues that amici raise here are largely, and perhaps entirely, obviated when a Governor restores rights on an individualized, case-by-case basis. An individualized process guards against the inadvertent restoration of rights of undeserving felons, and it also provides Commonwealth’s Attorneys and circuit courts assurance that the Governor has discharged the first check Virginians have instituted to ensure that individual felons are deserving to serve on juries or possess firearms.
Finally, here’s a list of the Commonwealth Attorneys signing this brief (note: I’m puzzled to see any Democrats on this list, including Arlington Commonwealth Attorney Theo Stamos).
- Robert N. Tracci, Albemarle County
- Edward Stein, Alleghany County
- W. Lyle Carver, Amherst County
- Darrel W. Puckett, Appomattox County
- Theophani K. Stamos, Arlington County
- Joel R. Branscom, Botetourt County
- Paul A. McAndrews, Campbell County
- William W. Davenport, Chesterfield County
- Paul Walther, Culpeper County
- Ann Cabell Baskervill, Dinwiddie County
- Raymond F. Morrogh, Fairfax County
- James P. Fisher, Fauquier County
- Eric Branscom, Floyd County
- Jeff Haislip, Fluvanna County Allen
- “A.J.” W. Dudley, Jr., Franklin County
- Ross P. Spicer, Frederick County
- Tracy Quackenbush Martin, Halifax County
- R.E. “Trip” Chalkley, III, Hanover County
- M. Andrew Nester, Henry County 29
- James E. Plowman, Loudoun County
- Rusty E. McGuire, Louisa County
- Theresa J. “Terry” Royall, Nottoway County
- Diana Wheeler O’Connell, Orange County
- Stephanie Brinegar Vipperman, Patrick County
- Robert Bryan Haskins, Pittsylvania County
- Paul B. Ebert, Prince William County
- Christopher Billias, Rockbridge County, City of Lexington
- Marsha L. Garst, Rockingham County, City of Harrisonburg
- Marcus McClung, Scott County
- Travis D. Bird, Spotsylvania County
- Derek A. Davis, Surry County
- Julia H. Sichol, Westmoreland County
- C.H. “Chuck” Slemp, III, Wise County
- Benjamin M. Hahn, York County, City of Poquoson
- Christopher. B. Russell, City of Buena Vista
- Nancy G. Parr, City of Chesapeake
- William B. Bray, City of Colonial Heights
- LaBravia J. Jenkins, City of Fredericksburg
- H. Clay Gravely, IV City of Martinsville
- Donald Caldwell, City of Roanoke
- Thomas E. Bowers, City of Salem
- Colin D. Stolle, City of Virginia Beach
- David L. Ledbetter, City of Waynesboro