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By Karin Riley Porter
Karin Riley Porter is a criminal defense attorney in Virginia with Price Benowitz LLP. Karin works out of her office in Fairfax, Virginia, and she handles cases involving white collar and federal crimes, complex DUI, and sensitive misdemeanor cases.
By simply wielding his executive pen, Virginia Governor Terry McAuliffe has restored the voting rights of over 200,000 convicted felons within the state.
Thwarting opposition from the Republican-majority legislature, McAuliffe declared the action an effective means to negate a Civil War-era voting rights restriction he believes was designed to disenfranchise African-American citizens.
Critics of the move have characterized the Governor’s actions as an unabashedly opportunistic strategy meant to boost the fortunes of his long-time friend and ally Hillary Clinton in the upcoming presidential contest.
Legal Authority for the Executive Order
In Governor McAuliffe’s Order for the Restoration of Rights, he explicitly states the basis of his authority for restoring voting rights: Article V, Section 12 of the Constitution of Virginia.
Article V of the Constitution of Virginia deals with the Executive Branch of the Commonwealth. Section 12 of this Article concerns the Executive Clemency Power. According to Art. V, § 12, the governor shall have the power “to remove political disability consequent upon conviction for offenses.”
In addition, the Governor must communicate the particulars of every case, the type of relief granted, and the reasons for doing so to the General Assembly.
Accordingly, the Constitution surely seems clear on the Governor’s power to grant back certain rights (or in this case, removing political disabilities) without granting every right or removing every disability that results from a criminal conviction. The Office of the Governor also released this Summary of the Governor’s Restoration of Rights Ordered Dated April 22, 2016 to explain the reasoning and authority.
Order Follows Similar Initiatives in Other States
McAuliffe’s move comes on the heels of increased national concern regarding what many feel are disproportionately harsh effects of criminal sentencing trends on African-Americans. Debates have been taking place in a number of state legislatures across the country, with the merits of restoring felons’ voting rights often assuming center stage.
Virginia has long had particularly onerous restrictions under which convicted felons lose their voting privileges for the remainder of their lives, regardless of whether they had served their sentences or made a productive return to society. One advocacy group has estimated that nearly one out of every five African-American Virginia residents has historically been unable to vote as a result.
Maryland Governor Larry Hogan previously vetoed a proposal in his state which would have restored felons’ voting rights. However, the state legislature amassed sufficient support to override his objection back in February. The result is that roughly 44,000 prior prisoners who are current probationers now may register to vote.
Recent years have seen a definite shift toward lifting certain restrictions on felons, with nearly 20 individual states taking legislative action to help facilitate societal re-entry for those who have met the terms of their sentences.
Executive Action Not Without Its Critics
Virginia Republicans had fought back against proposals aimed at broadening felon voting rights, and believe that McAuliffe’s actions represent a significant executive overreach.
Party chairman John Whitbeck stated that while he certainly agreed that individuals who have repaid their debt to society need to be aided in reintegration efforts, there is a limit to how far such measures should go.
Whitbeck argued that it was improper for the Governor to restore voting rights to felons in a “blanket” fashion, especially considering that the grant of restoration extends to folks convicted of violent and heinous crimes including rape and murder.
Opponents of the executive order emphasize what they believe is the highly-calculated political motivation behind McAuliffe’s actions in terms of the potential to improve vote tallies for Democrat candidates in the fall and into the future.
They note that the Governor did not restore any other rights typically forfeited by felons, including that of gun ownership, and that restoration of the right to vote was not made dependent on the felons’ successful payment of court-imposed fines or victim restitution.
Implications for the Future
Immediately after Governor McAuliffe’s action, advocacy groups announced plans to fan out into Virginia communities to assist with voter registration drives within affected populations.
It is important to note that the voting rights of convicted felons affected by this executive order can never be rescinded, even if a subsequent governor takes action limiting the rights of convicts released in the future.
Because McAuliffe’s Friday order does not impact individuals released at a later time, the Governor plans to issue orders of this type each month to ensure that no gap in voting rights restoration occurs.
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