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Virginia Republicans Yet Again Ignore Plain Language of Constitution, Fight to Prevent Virginians from Voting


Sadly, the party of voter suppression and disenfranchisement – that would be the Virginia GOP, formerly the “Party of Lincoln” but now the “Party of Donald Trump” – has acted exactly as you’d expect them to act. Disgustingly.

Attorneys for Virginia House of Delegates Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment, Jr. (R-James City), and four Virginia voters will file a contempt motion today against Governor Terence R. McAuliffe (D) with the Supreme Court of Virginia.  The petitioners are requesting an order from the Court requiring the Governor and other respondents to show cause for why they should not be held in contempt for violating the Supreme Court’s July 22 decision in Howell v. McAuliffe.

In granting a writ of mandamus against Governor McAuliffe and other respondents, the Court ruled that the governor replaced a general rule with a categorical exception, effectively suspending the constitutional prohibition on felon voting and violating the Constitution of Virginia’s anti-suspension provision.  The contempt motion argues that the effect of the August 22 action is practically the same as the first set of executive orders, resulting in another unconstitutional suspension of the laws.

“‘The practical effect’ of Governor McAuliffe’s August 22 decision to issue over 200,000 individual restoration orders is precisely the same: his newly announced process will effectively suspend Virginia’s general constitutional prohibition against felon voting for over 200,000 felons,” reads the motion.  “In both scenarios, the Governor has ‘effectively reframe[d] Article II, Section 1 to say’ what he wants it to say rather than what the People of Virginia actually inscribed in their Constitution.  This Court did not reduce the suspension clause of the Constitution to a printing requirement.  The Court held instead that the suspension clause is an ‘essential pillar of a constitutional republic,’ whose protections do not depend upon how many reams of paper and autopen machines the Governor deploys to work his will.”

The full motion can be found here.

Aside from being anti-democratic (small “d”) and fundamentally unAmerican, what Republicans are doing here is wildly hypocritical and also with no basis in Virginia’s constitution or law. On the first point, recall the howls from right wingers at “liberal activist judges” whenever a ruling has come down from the courts that they don’t like? Yet now, Virginia Republicans are effectively urging the (conservative) Virginia Supreme Court to become right-wing activist judges.

As for the Republicans’ complaint having no merit, the fact is that the “plain language” of Virginia’s constitution clearly states that the governor has full power “to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution.”  Which is exactly what Gov. McAuliffe has been doing – or trying to do! – with ex felons. (Note that the Supreme Court’s July ruling stated clearly: “All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis.”)

Finally, I’d repeat a point McAuliffe frequently makes, that the vast majority of states automatically restore voting rights to ex-felons once they’ve “served their time and paid their debt to society.” There’s no reason that shouldn’t be the case in Virginia as well, other than Virginia Republicans not wanting minorities to vote, since they know that the vast majority of African Americans and Latinos vote Democratic nowadays. Pathetic, but sadly not surprising.

P.S. As a smart attorney told me a few minutes ago, the Virginia Supreme Court “is making decisions based on no record; typically the court has evidentiary hearings, allows cross examination, etc…You can’t just come to court and say X is true, give me relief.”

  • Adam B

    While it is certainly odd to have the Supreme Court exercise original jurisdiction over a contempt citation, they may actually have an argument that the individual restorations must be requested by the former felon, that the governor does not have the authority to do so sua sponte. The court alludes to that in their original ruling, though my cursory glance through the decision doesn’t show where the court stated definitively that is the standard, they do suggest that’s what they were contemplating.

    I think the original blanket executive orders were legal, but reading the motion, I think the court may very likely wind up striking the orders down in the end. Whether or not they issue a contempt citation is another matter, and that would be a hard lift to make. I think it’s clear that McAulliffe was making an effort to bring what he wanted to do in line with the court’s decision. He wasn’t just going ahead with the existing orders. Hard to call that criminal contempt.

  • From Gov. McAuliffe:

    “Fewer than two weeks after Republican Senate Leader Tommy Norment, who was a plaintiff in both of these political cases, said ‘I am pleased Governor McAuliffe has complied with the decision of the Supreme Court of Virginia,’ Republicans have fully demonstrated that their sole motivation in these cases is to deny Virginians the right to vote.

    “Senator Norment is right — Following the Supreme Court’s ruling on my April 22nd order, my team fully complied with the court’s order and established a process that is fully consistent with the ruling as well as the precedent of past governors.

    “Our ongoing fight to restore Virginians’ rights is about one thing: Moving our Commonwealth into the mainstream of American states where people who serve their time reenter society as full citizens again.

    “This lawsuit is an attempt to use the judiciary system to intimidate and disenfranchise people who are living in our communities and paying taxes. The people who have filed it are more concerned with the impact new voters could have on Donald Trump’s campaign than they are with the dignity of the people whom they continue to drag through the mud with their political lawsuits and ugly attacks.

    “We will oppose this latest partisan action vigorously and overcome any and every obstacle Republicans may erect to our efforts to bring this dark chapter in our Commonwealth’s history to a close.”

  • From the DPVA:

    “We thought it would be impossible for Republicans to sink to a new low in their efforts to make it harder for certain Virginians to vote. We were wrong. Republicans remain hell-bent on their singular mission to preserve archaic barriers to the polls, particularly for minority voters.

    “Virginia Republicans should be ashamed of themselves for playing politics with Virginians’ right to participate in democracy. They are not the party of individual rights – they are the party of bending the constitution to suppress voters.”

  • McEachin Responds to GOP Contempt Motion
    Candidate in VA-4 criticizes new push to block restoration of rights

    HENRICO — State Sen. Donald McEachin, Democratic nominee for Congress in Virginia’s Fourth Congressional District, responded today to Republicans’ motion asking that the state Supreme Court hold Gov. McAuliffe in contempt for his ongoing efforts to individually restore the rights of former offenders.

    Sen. McEachin said, “I am disappointed that Republicans have again sought to silence the voices of so many Virginians. For many Republican leaders, Governor McAuliffe’s new approach was entirely acceptable — until suddenly it was not.

    “Former offenders who have served their time and paid their debts deserve the opportunity to be engaged, contributing members of our society. When we unfairly withhold the right to vote, our friends and neighbors do not have full equality.”

  • Anonymous Is A Woman

    If the courts agree with the Republicans on this, can they then overturn all the cases of people whose voting rights were restored by McDonnell when he was governor? What would the difference be?

    What are the chances of this then heading for the Supreme Court? Can a state completely block restoration of voting rights that arbitrarily? That is different from having a process for restoration case by case?