On July 22, 2016, the Supreme Court of Virginia issued a historic decision invalidating Virginia Governor Terry McAuliffe’s unprecedented order that purported to erase Virginia’s constitutional provision disenfranchising felons. The decision preserves the People’s choice to require their Governor to determine that an individual felon has earned the public trust before restoring his political rights. And more broadly, it vindicates constitutional limitations on executive power.
Exactly three months before, on April 22, Governor McAuliffe issued an executive order purporting to restore, on blanket basis, political rights (including the rights to vote, to serve on a jury, and to seek and hold public office) for all 206,000 convicted felons in Virginia who have completed their prison sentences and periods of supervised release. On May 23, six voters (including the Speaker of the Virginia House of Delegates and the Majority Leader of the Senate of Virginia) challenged the Governor’s executive order in the Supreme Court of Virginia.
Recognizing the importance of the issues that the voters’ petition raised, the Court took the unusual step of scheduling a special session to hear oral argument and decide the case well in advance of November’s election. That argument took place on July 19, and just three days later, the Court issued its 4-3 decision.
In an opinion authored by Chief Justice Lemons, the Court held that the Governor’s orders violated the Constitution of Virginia, and that state officials therefore lacked “the discretion to enforce” them. As a consequence of the Court’s order, no felon will be permitted to register to vote or to maintain an existing registration based on the Governor’s invalid orders.
Central to the Court’s decision were the unbroken practice of Virginia’s Governors and the Virginia Constitution’s robust provision depriving the Governor of “all power of suspending laws.” Prior to Governor McAuliffe’s executive order, no Virginia Governor – from Thomas Jefferson and Patrick Henry in the 18th Century to Tim Kaine and Bob McDonnell in the 21st Century – had ever issued clemency on a blanket basis, and every official to have considered the question had concluded that such blanket orders would be unconstitutional. Indeed, then-Governor Kaine, who also disagreed with the Virginia Constitution’s felony disenfranchisement provision, refused to issue a unilateral executive order overriding that constitutional provision because he had “pledge[d] to uphold the Constitution when he took his oath of office in January 2006.” This unbroken practice is particularly instructive, the Court held, “when governmental actors, contrary to the natural tendency of those with concentrated power,” adopt a construction that limits their power.
Governor McAuliffe not only exceeded the long-respected limits on his clemency power; he also violated the Suspension Clause. That “essential pillar of a constitutional republic” prohibits the Governor from exercising his acknowledged power to “provide individualized favor in particular cases” in a way that suspends all or part of a disfavored general rule. The Court concluded that Governor McAuliffe’s orders did just that: they sought “not to mitigate the impact of the general voter-disqualification rule of law on an individualized basis but, rather, to supersede it entirely for an indiscriminately configured class of approximately 206,000 convicted felons, without any regard for their individual circumstances and without any specific request by individuals seeking such relief.”
The Court’s willingness to vindicate limits on executive power even in the absence of explicit or “precisely-calibrated” rules circumscribing the Governor’s authority is an important step to preventing abuses of power and promoting the rule of law.
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Michael W. Kirk is a Partner at Cooper & Kirk, PLLC.