Virginia AG Mark Herring Files Motion to Dismiss Republicans’ Restoration of Rights Suit

From AG Mark Herring’s office, I agree that the plain language of the Virginia constitution – plain language being something Republicans usually claim they care about – is crystal clear on this: the governor has the power “to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution.” End of story, case closed.

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First, the motion to dismiss addresses the considerable doubt over whether any of the plaintiffs have suffered an injury that gives them standing to challenge Gov. McAuliffe’s order. The voters have not suffered a particular injury based on the Governor’s order, nor have Speaker Howell or Senator Norment in their capacity as candidates or as legislators.

Second, the brief explains why the writ of prohibition and writ of mandamus sought by the plaintiffs would be inappropriate in this situation. Neither writ can be used to undo a previous action, a writ of prohibition cannot be issued against an executive, and mandamus cannot be used to dictate whether and how an executive performs a discretionary act. Additionally, there is already a mechanism in state law for challenging the eligibility of someone on the voter roll but the plaintiffs have, for whatever reason, not chosen to use the remedy available to them.

Finally, even if the Court reaches the merits of the challenge, the Governor clearly has the authority to remove political disabilities on a group basis:

• First, a Governor’s actions are presumed to be valid and Courts must uphold them when possible:
  • “The Court should begin with the presumption that the Governor’s actions are valid.  Indeed, this Court has recognized at least since 1872 that gubernatorial acts of clemency are entitled to a liberal construction and must be upheld whenever possible.”  (Page 25)

• Second, the text of the Constitution supports the governor’s authority to act:
  • “No words of limitation prohibit the Governor from restoring rights on a group basis; no text requires that he restore rights one person at a time.” (Page 27)

• Finally, there is ample case law and federal authority for an executive acting to remove political disabilities to exercise his clemency powers on a group basis:
  • “Federal precedent unequivocally supports group clemency.  It ‘was early assumed that the [President’s] power included the power to pardon specified classes or communities wholesale . . . .'” (Page 41)
  • “The President has granted blanket clemency numerous times since Reconstruction.   No fewer than a third all Presidents have issued group pardons to specified classes of individuals who were not individually named in the instrument.” (Page 43)

The introduction on Page 2 gives the best summation of the arguments:

Petitioners barely mention Article V, § 12 of the Constitution of Virginia, but it empowers the Governor “to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution.”  That language plainly authorizes the group restoration-of-rights actions at issue here; the text is unqualified and commits the restoration-of-rights power solely to the Governor’s discretion.  If the Court reaches the merits, therefore, the Governor’s actions should be upheld.  But Petitioners’ case has fatal procedural defects.  Petitioners lack standing because they allege no concrete and particularized injury to any cognizable legal interest.  A writ of prohibition cannot be used against the Executive Branch.  And prohibition and mandamus are both barred because they cannot be used to undo acts that are already done, cannot be used to control executive discretion, and cannot be used when, as in this case, Petitioners have an adequate remedy at law.

UPDATE 8 pm: