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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.


Today, Attorney General Herring, on behalf of Governor McAuliffe and the State Board of Elections, filed an answer and a motion to dismiss (filing available here) the lawsuit by Speaker Howell, Senator Norment, and four voters challenging Gov. McAuliffe’s restoration of rights order.

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:

A number of amicus briefs have been filed with the Supreme Court of Virginia supporting Governor McAuliffe’s restoration of rights order, including one from constitutional law professors including Prof. A.E. Dick Howard, one from Virginia Commonwealth’s Attorneys, and briefs from civil rights advocates include the Virginia NAACP:

Brief of law professors at law schools within the Commonwealth of Virginia: Professors A.E. Dick Howard and Daniel R. Ortiz of the University of Virginia, and Professors Carl W. Tobias and John Paul Jones of the University of Richmond:

“Fundamentally, the April 22 Order is consistent with the plain text of

Article V, Section 12 and the language and structure of the Constitution of

Virginia as a whole. A comprehensive examination of the historical record
likewise supports an interpretation of our Constitution that allows the
Governor to restore voting rights to a group of people. For these reasons,
the Petition for Writs of Mandamus and Prohibition should be denied.”

Brief of Commonwealth’s Attorneys from Henrico County and the cities of Alexandria, Hampton, Norfolk, Portsmouth, and Richmond:

“The policy considerations intertwined in the restoration of rights of
former felons are issues upon which reasonable and fair-minded individuals
may differ. The framers of our Constitution, however, granted the Governor
broad power under Article 5, Section 12 to execute decisions regarding the
restoration of political rights. There is no requirement that such decisions
be made on an individualized basis. Nor is there any prohibition against
class-wide restorations. Similarly, there is no “arbitrary and capricious”
review standard – although the Governor’s position on restoring voting
rights is in the mainstream with the voting practices in the vast majority of
sister states.”

Brief of the Virginia State Conference of the NAACP 

“Virginia is an extreme outlier-it is one of only four states (including
Florida, Iowa, and Kentucky) whose constitutions call for the permanent
disenfranchisement of all individuals convicted of any felony absent action
from the executive or other authorized party to provide clemency. Fact
Sheet: Felony Disenfranchisement, THE SENTENCING PROJECT (Apr. 28,
2014). This exceptionalism is not to be celebrated. And not only has
Virginia been among the most extreme of states in its laws on felony
disenfranchisement, it is further out of the mainstream in its failure to take
substantive actions to revise its approach. From 1997 until 2014, 23 states
modernized and relaxed their felony disenfranchisement laws, but Virginia
was not one of them.”

Brief of Virginia New Majority

“The Governor acted within his constitutional powers to restore voting rights to persons with felony convictions. Article V, Section 12 of the Virginia Constitution vests the Governor with the power to remove political disabilities, including disenfranchisement due to felony convictions. The Constitution does not limit how the Governor exercises this power. A plain reading of the Constitution requires this Court to uphold the Executive Order.”
Brief of the American Civil Liberties Union

“Nothing in Virginia Constitution prohibits the
Governor from recognizing their dignity by restoring their voting
rights, and the voting of other Virginians who have completed
their sentences.”

Brief of the Fair Elections Legal Network

“Amicus curiae FELN fully supports Respondents’ arguments on the
merits as to why the April 22nd Executive Order is lawful and proper.
However, this Court need not reach the merits because Petitioners do not
have standing to raise the lawfulness of the April 22nd Executive Order in
this Court. The Court should dismiss the petition for writs of prohibition and

“These Amici Curiae join the Respondents in advocating that the
Petitioners lack standing to seek the relief demanded; that mandamus fails
as a matter of law; and that the prohibition claim fails as a matter of law.
Further, Mr. Green and Bridging the Gap in Virginia, Inc. join in supporting
the Executive Order as necessary to correct almost two centuries of racial
discrimination and fully authorized by and consistent with Article V, Section
12 and Article II, Section 1 of the Constitution of Virginia.”

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