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Terry McAuliffe Is Claiming Commonwealth’s Attorneys Signed an Amici Curiae Brief Opposing Restoration of Voting Rights to Ex Felons. Let’s Take a Closer Look.

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Former Gov. Terry McAuliffe, while gearing up for a possible 2020 presidential run, has also been tying up some loose ends from his four years as governor of Virginia. One of those loose ends is seeking political payback to Commonwealth’s Attorneys (CAs) who signed on to the June 17, 2016 “Brief of Amici Curiae” by 43 CAs, “represent[ing] more
than 55 percent of the Commonwealth’s residents,” raising various issues with McAuliffe’s executive order restoring “certain rights and privileges” to ex-felons. According to McAuliffe, these CAs “tried to stop me” from reinstating those rights, and in return, McAuliffe is now going to “do anything I can possibly do to try and help [the CAs’ primary opponents].” There are several problems with McAuliffe’s reasoning on this, which I feel like almost nobody has paid attention to. Nor have most people actually read the “Amici Curiae” brief. So let’s start with that.

First off, the brief is *very* clear that the CAs signing it “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.” I have personally asked two of the CAs – Arlington/Falls Church CA Theo Stamos and Fairfax County CA Ray Morrogh – this same question, and both have emphatically told me that they of course support restoring *voting* rights to ex-felons (as Stamos put it to me, “every single one of us on that amicus brief said we would support the restoration of voting rights”; for his part, Morrogh said “he 100% supports restoring voting rights to ex felons, that voting can’t hurt anybody but guns can”). (Note: Also see this Washington Post article, in which Theo Stamos explains that she was “absolutely was in sync and in accord with the outcome; it was just that the rollout did not consider a number of things,” that it’s “important to do the process in an orderly way,” and that “‘en masse’ approach, she said, was dangerous, especially because ‘voting rights are a precursor to gun rights.'”) So right there, McAuliffe’s narrative – that the CAs signing this brief supposedly opposed restoration of voting rights to former felons – starts to fall apart.

By the way, it’s important to point out that almost everyone in the Democratic Party – including the CAs signing this brief – and a lot of people outside the Democratic Party for that matter, support restoration of ex-felons’ *voting* rights. And, clearly, the optimal way to do this would be to amend Virginia’s constitution to make restoration of voting rights automatic. But since McAuliffe couldn’t do that, I absolutely don’t blame him – and in fact give him credit – for trying to do it a different way. The question isn’t the desire to restore voting rights to ex-felons, which most people support, but how best to go about it, and whether McAuliffe’s executive order was well-thought-through, legal, constitutional, etc.

As it turns out, the Virginia Supreme Court ended up striking down McAuliffe’s blanket restoration of voting rights, and instead said that such restoration had to be done on a case-by-case basis. McAuliffe responded by vowing to sign orders one by one, “until I have completed restoration for all 200,000 Virginians”.” Also worth noting is that Tim Kaine considered doing a mass restoration of ex-felons’ voting rights in the closing days of his governorship in late 2009/early 2010, “but opted against it on the advice of his senior counsel, Mark Rubin,” who wrote that “[a] blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.” So this is a complicated question, and again, clearly the ideal would be to amend Virginia’s constitution to make restoration of voting rights to ex-felons automatic, as it is in most other states.

Second, note that the June 17, 2016 “Brief of Amici Curiae” contains five main sections, *none* of which argues against restoration of *voting* rights. Instead, the main concerns are about:

  1. “Unilaterally Alter[ing] Virginia Law Concerning Jury Selection,” in such a way that the governor “abdicates his responsibility to give individual scrutiny to a given felon in order to determine if they are deserving of restoration,” and instead placing that burden “entirely on the jury selection process—i.e., on Commonwealth’s Attorneys, defense counsel, and circuit judges—to screen these individuals.” Furthermore, the CAs argue, “This presents not only practical problems in light of Commonwealth’s Attorneys’ limited resources, but it also alters Virginians’ policy judgments about the proper makeup of the jury box.” They also argue that “Commonwealth’s Attorneys’ resources are stretched thin without the added burden of having to run criminal background checks on every prospective member of a jury. And their resources are zero-sum: redirecting resources to this task leaves fewer resources for other duties.” And, thet note, “The surest way for Commonwealth’s Attorneys to identify whether prospective jurors are felons would be for Governor McAuliffe to release to them the complete list of individuals whose rights have been restored, but Governor McAuliffe has refused a Freedom of Information request that he do so on the ground that the list constitutes the Governor’s ‘working papers.’” Note, again, that *none* of these issues have anything to do with voting rights, but instead with issues that seem to me to be very serious, regarding who is allowed to serve on juries, how that process works, the resources provided to CAs offices in this area, etc, etc. All of these seem like highly legitimate, serious points that deserve answers – not political theater by McAuliffe or anyone else.
  2. “Governor McAuliffe’s Order Eliminates Executive Scrutiny, Thus Making It Easier for Felons to Regain Firearm Privileges.” This one is a biggie for me, and I presume for most Democrats, that the way McAuliffe’s executive order was written, it actually “eliminated the entire first level of review for all felons” to get their *gun rights* restored. Thus, “Restored felons under the Governor’s April 22, 2016 executive order will now present themselves before circuit courts with the imprimatur of the Governor’s office as a legal advantage in their firearm rights petitions, despite the lack of any scrutiny into their particular backgrounds.” Does that make you at all comfortable? It certainly doesn’t make me comfortable, that’s for sure. It also doesn’t make me comfortable that McAuliffe’s order “shift[ed] the entire burden of this vital review process onto Commonwealth’s Attorneys and circuit courts,” or that it “additionally taxed” CA offices’ limited resources. Yet again, the response we’ve gotten from McAuliffe to this very serious issue has been – overwhelmingly – political theater…and political revenge, frankly.
  3. “The Governor Admits That He Violated The Criteria of His Own Order by Restoring Rights to Individuals in Prison and on Supervised Release.” This gets at a level of sloppiness in McAuliffe’s order (possibly, in part, because he was rushing to complete it before he left office, so that he could use this achievement as a talking point in his presidential campaign?). The point here is that “the precise scope of the Governor’s restoration order is unclear.” The brief cites several cases, including that of a brutal murderer (named Ronald Cloud) who, “as a result of Governor McAuliffe’s executive order…[had his] ability to vote, to serve on a jury, and to seek and hold public office” all restored. The brief further notes that McAuliffe “admitted that it was not his intention to restore these individuals’ rights,” that McAuliffe “attempted to revoke his restoration of rights of people like Cloud by removing their names from the list of eligible individuals,” and that he blamed “data entry errors” for their restorations. McAuliffe also stated that “his list is ‘an imperfect list’ and ‘a work in progress.'” Further problematic: “it is not clear that the Governor has the authority to reimpose political disabilities that have been removed” – which is exactly what McAuliffe attempted to do. In short, this whole thing – while clearly attempting to do the right thing with regard to restoration of voting rights – appears to have been sloppy and rushed, with minimal if any consultation with the CAs, among others. Which is probably why McAuliffe had to keep changing course, backtracking, etc. Note, by the way, that this is *not* the type of quality we want in a president of the United States, whether our current one or the Democrat who hopefully takes over in January 2021.
  4. “Governor McAuliffe’s Executive Order Creates the Foregoing Problems Due To Lack of Structure and Protocols That Are Present During an Individualized Restoration Process.” This section again gets at the apparently rushed and sloppy nature of McAuliffe’s initial order, arguing that issuing clemency orders “on an individualized basis after case-by-case analysis” means that CAs, circuit courts and general registrars “will not have to worry about identifying whether these individuals are, in fact, on supervised release, when they appear to vote, serve on a jury, or petition for firearm possession.”
  5. “The Reasonable Exercise of the Constitutional Authority to Restore Rights Cannot Be Executed Arbitrarily and Capriciously Regardless of Whether the Process Is En Masse or Individualized.” This section is probably what really angered McAuliffe, as it argued that he acted in an “arbitrary and capricious fashion,” one that was “anything but reasonable.” According to the brief, McAuliffe “restored felons who violate the terms of his own executive order,” ” attempted to revoke the restoration status of those persons after the fact when the errors are brought to his attention on questionable authority to do so,” ” failed to account for recidivism or a program to remove persons from his secret restoration database who have committed new crimes and are potentially incarcerated” and violated Va. Const. art. II, § 1″ regarding persons “adjudicated to be mentally incompetent.” What a mess.

In sum, as you can see from the June 17, 2016 “Brief of Amici Curiae”, the CAs’ issues were overwhelmingly *not* about restoration of voting rights at all, but about a whole slew of other issues, most of which McAuliffe either tacitly or overtly admitted to at the time, and/or which the Virginia Supreme Court used as the basis to strike down McAuliffe’s executive order. Now, of course, McAuliffe is considering a run for president, and his mass restoration of rights to ex-felons is, unsurprisingly, one of McAuliffe’s major talking points in terms of his accomplishments as governor. Which is, in turn, almost certainly why McAuliffe has reacted with such vehemence to the Democratic CAs who signed on to the “Brief of Amici Curiae.” You might want to keep all this in mind the next time you hear McAuliffe rant about how a particular CA supposedly tried to block him from restoring *voting rights* to ex-felons, when in fact the CAs’ issues were with a whole host of other things – gun rights, juries, process, resources, legality, constitutionality, etc, etc. – with his order.