Voting

Virginia's Governor Makes a Mess Out of Restoring Felons' Voting Rights

What's supposed to have been a civil rights matter ends up as a case of executive overreach.

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Gov. Terry McAuliffe
Douliery Olivier/Sipa USA USA/Newscom

Earlier in the year, Democratic Virginia Gov. Terry McAuliffe made a big splash by declaring that he would, as a blanket measure, restore the voting rights of more than 200,000 released felons.

Republicans immediately resisted the gesture. Grotesquely—and predictably—the debate very quickly became about who these released felons would be voting for, as though that should factor in at all as to whether their civil liberties should be restored.

Republicans challenged McAuliffe's order in the courts, and Virginia's Supreme Court just recently ruled 4-3 against McAuliffe.

To be clear, the Supreme Court didn't rule that McAuliffe couldn't restore the voting rights of released felons who had done their time and were no longer under state supervision. Rather, McAuliffe essentially tried to expand his own power as governor with a blanket gesture, and the state's constitution did not give him such authority. He just completely screwed up the process and turned the whole effort into a lesson in the limits of executive authority. From the ruling:

All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe's Executive Order crosses that forbidden line. …

If the anti-suspension provision has no role to play as a check on any of the Governor's clemency powers, this view, taken to its logical limits, would empower a Virginia Governor to suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone convicted of his disfavored crime. This view would similarly empower a Governor to issue a single, categorical order restoring voting rights to all felons — even those imprisoned, those subject to a supervised criminal sentence, and those released from prison but later civilly committed as sexual predators — thereby eliminating any remaining vestige of the general voter disqualification rule in Article II, Section 1 of the Constitution of Virginia.

Sen. Tim Kaine, Hillary Clinton's choice for vice president and former governor of Virginia, was also referenced in the ruling. When Kaine was governor, he was asked to take a blanket action to restore voting rights but determined that he didn't have that level of power. His counsel at the time wrote the very "notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling."

Fortunately for felons in Virginia, this doesn't mean they can't get their voting rights back. It just means he has to go case by case and do it the "hard," but legally correct, way, and McAuliffe says he's going to do exactly that.

There are additional signs that McAuliffe had handled the whole case poorly as well. He refused to publicly release the list of names of felons who would have had their voting rights restored. But those who had seen the list discovered there were people on the list who shouldn't be there, including felons who were still in prison, as well a couple of fugitives convicted of sex crimes.

The New York Times notes that in order to restore all these felons' rights the correct way (where he reviews each case), he'd have to sign 385 orders per day for the rest of his term. This suggests that he might not actually review each case as he's supposed to and could end up right back in court if Republicans challenge him again. McAuliffe, by the way, dismissed the ruling as an "overtly political action," even though the ruling did not even so much as suggest that McAuliffe couldn't restore felons' voting rights, just that he couldn't do it by a massive fiat declaration.

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  1. A politician made something worse?

  2. …as though that should factor in at all as to whether their civil liberties should be restored.

    Uh, what criteria would you use as a politician in deciding whether someone’s vote should count or not?

    1. Physical attractiveness.

    2. There’s no way Terry did this out of some sense of justice. It was a naked attempt to buy more votes. I’m all for restoring rights to people who have completed their sentence and whatever restitution was required. They’ve paid their debt to society. Those who still owe the community can pound sand.

      1. “Paid their debt to society”

        I like that. $100 that was made up by a politician.

        What do you think the odds are that most criminals, not low level drug offenders, ever could repay the damage they do to people and property?

      2. ” It was a naked attempt to buy more votes.”

        And one that he probably knew full well would fail.

        “At least I tried”

        1. No I think he just severely underestimated the pushback on this, McDonald was actually pretty good on attempting to push this through the legislature so it was a relatively bipartisan idea. He just underestimated how much political capital he had in this area and was pretty open about why he was doing it.

      3. The notion that McAuliffe did not “factor in” their likely voting preferences while “restoring their civil liberties” is insulting, Scott.

    3. I propose the following:

      Since government is force, any vote for any politician or party which explicitly promises to increase the scope of government in any way, shall henceforth be seen as an act of aggression against all of society, and prosecuted as such. All parties advocating such positions shall be illegal.

      The only two options of party platforms allowed going forward will be parties which advocate for holding the size and scope of the government exactly where it is at, with growth in any department strictly indexed to increases in the population which that department serves, and parties which advocate rolling back some, any, or all aspects of government.

  3. The New York Times notes that in order to restore all these felons’ rights the correct way (where he reviews each case), he’d have to sign 385 orders per day for the rest of his term.

    Poor John Zywiec.

    1. No love for his poor brother Zack?

      1. Or their cousin Zbigniew?

      2. Zack was always the Gallant to John’s Goofus.

  4. How is it even legal for a state to take away voting rights? Isn’t voting one of those things that’s forced on the states by the Fourteenth Amendment?

    1. I suppose you’d like to be free to shout fire in a crowded theater, too.

      1. But why would you want to let them know when you’re about to start shooting?

    2. Same with the right to bear arms. I don’t see any exceptions for felons in the 2A.

      But it doesn’t matter. If the Constitution is indeed the supreme law of the land, then most of what the government does is illegal.

    3. The fifth amendment does allow life, liberty or property to be taken after due process. The felony conviction is the due process.

      It is legal, unlike the plan to deprive those on the no-fly list of their second amendment rights.

      1. I see. And all they have to do is broadly define “liberty,” and voila.

        1. Do you have an argument in favor of narrowly construing liberty???

          1. Yes, when it’s being taken away. I was thinking of it in terms of what could be taken from the citizen upon conviction, and my sense at that time was that it meant only “freedom of movement,” as prison is primarily a vehicle for restricting freedom of movement.

            After a felon is released from prison, he is naturally given back his freedom of movement (unless monitoring due to parole is a condition of release) and I had assumed that that’s all he would need to regain in order for us to say he had “paid his debt to society” or whatever they call it.

            Rescinding the ex-felon’s capacity to vote, after the sentence has finished, is therefore a weird type of ex post facto punishment that I can’t square with inalienable rights.

      2. Putting someone on a list is a process. Therefore it’s legal. /gov’t lawyer. True story, one our sales manager was pulled out every time he flew. He found out he shared the same name as an IRA terrorist. Had to get a preclearance pass.

        1. “Putting someone on a list is a process.”

          True, but absent an ability to challenge the presence of any specific name on such a list then it is not due process

          Which is exactly why law enforcement was dead set against using the no-fly list, and terror watch lists to curtail 2nd Amendment rights – it would have become a surefire method for opening up those lists to judicial scrutiny.

    4. Denying felons the vote is one of those things that is permitted but not required by the 14th Amendment. Specifically the “except for rebellion, or other crime” clause.

  5. To be fair; unless Rand Paul is doing free eye surgery in prisons all over America, most if not all released felons will be voting for Hillary/Obama/insert stupid class warfare gangster here.

    1. Why is that assumption always made? How many guys get out of prison and go “off to the voting booth!”

      1. Probably none.
        My assumption is that most people that revert to theft, murder, and/or assault are probably not big readers.

        1. Most felons are not in there for theft, murder, and/or assault. Those are crimes with victims. Only 20% or so of inmates committed crimes with actual victims.

          1. Hence my non-violent offender disclosure.

          2. Seriously? Hard for me to believe that figure, unless you’re limiting it to federal cases.

      2. How many Federally funded half-way houses and other sorts of convict assistance programs would NOT try to round up as many of their ex-cons as possible and get them to the polls on election day?

        Because why else do clients exists but to serve their patrons?

  6. Reason should do a SI Swimsuit-type special issue every year: The 50 Most Punchable Faces

      1. Professor Combover is highly favored in the early rounds of voting.

        1. Although Vampire Kimono kid is rising.

        2. It’s either him or the fat (size-ist!) neckbeard dude on the right.

        3. I want to state unequivocally that I have ALWAYS favored punching PC in the face!

      2. Bottom Left – Velour jacket with heinous bowtie

        *punch*

        1. I am not sure what is more offensive: Errol Bowtie or Whiskey Farva throwing on his best xxxl liquor shirt to go to the Bernie rally.

          1. Hey, if I were a Bernie supporter, I’d probably drink too

          2. Let’s be honest: The three guys in the front all look like libertarians.

            1. I had that thought, but they are too smug and lack the required flop sweat. Plus, they are in a crowded public place.

              1. Top right white guy in glasses, he looks scared. Total libertarian

        2. I couldn’t decide if it was velour or extra-fancy corduroy.

          1. *lights the Gilmore signal*

            The Gilmore signal is a silhouette of David Niven in a smoking jacket.

            1. In profile, so you can see his bulge.

          2. Velour, with a black Bernie t-shirt over his white collared shirt

            You stay classy Bernie-Bots

      3. It’s duckface hijab girl by a country mile.

      4. It’s hard to pick. Most of them look like your fist would get stuck and/or they’d enjoy it too much.

      5. Let’s just focus on their collective joie de vivre.

      6. Hey, isn’t that what’s her fucking face on the far left?

    1. They should make a simple yes or no list for every single issue that americans discuss in the daily minutia and simply get the historical record of every scumbag pol. Then grade it and at least show the world where all of these dirtbags stand.
      If we didn’t allow politicians the opportunity to dance around questions but rather held them to the yes or no stances, would it not be sweet and simple?

    2. All worthy choices, but still no one can top John Oliver. Although Thomas Perez comes close.

  7. Terry just wanted to set a precedent so he could still vote after he goes to prison.

  8. OT: Did Politico run this story by the DNC, too?

    Grayson’s ex-wife claimed domestic abuse over two decades

    And it’s “claims.” Active verbs, bootlickers.

    1. Who could believe that a blowhard, egomaniac lunatic like Grayson would hit his wife?

      1. Through his lawyer, Mark NeJame, Grayson denied ever striking or abusing Lolita Grayson.

        “Lolita is a disturbed woman. She has made one false allegation after another. Her own daughter refutes her,” said NeJame, referring to a statement from the couple’s oldest child.

  9. McAuliffe is a clown, as I understand it you don’t actually have to state what your reasons are for declaring clemency in the state of VA so I really don’t understand why he didn’t just say he reviewed all the cases during the course of his governorship and decided to restore their rights at this time. So basically in his naked attempt to rush to do this at the last minute he screwed himself and was hung by his own retard in his nakedly greedy attempt to garner votes for Hillary in the fall.

  10. It just means he has to go case by case and do it the “hard,” but legally correct, way

    “Case by case”, eh?

    Sounds like a job for a machine.

    1. Eh, I’m busy this weekend.

  11. Since this is the trust tree, we can really play out some realistic scenarios.

    And since most of the prison population is disproportionately young black non-violent offenders, can we pre-suppose what way they might voter if they wanted to vote?

    My guess is that, based on the public school system brainwashing and black leaders fomenting of fake race problems, they will probably vote for the free shit, class warfare, minimum wage, they took our jobs, white privilege pimp.
    I have not met a lot of black people that are all over the liberty, property rights, contract law debate.

    1. Thomas Sowell is a rare gem.

      1. So too Frederick Douglas. I spend some time in the public schools around here. Frederick Douglas is on the wall but rarely discussed. The public school system is a frightening factory for bad ideas and bad actors.

      2. “During his work, Sowell discovered an association between the rise of mandated minimum wages for workers in the sugar industry of Puerto Rico and the rise of unemployment in that industry. Studying the patterns led Sowell to theorize that the government employees who administered the minimum wage law cared more about their own jobs than the plight of the poor.[1”

        Racist!!!!
        Oh wait…..

  12. So, he’s restoring voting rights for felons, but he also managed to do it in a way that creates a precedent limiting executive power?

    What’s the down side, exactly?

    1. What’s the down side, exactly?

      He’s still governor.

    2. Well, there’s a little bit of a downside in that he will blatantly violate the court’s order by legalizing them “case by case” without any individual consideration, and will not be held accountable for doing so.

      1. But everybody agrees that legalizing them case by case is entirely within his power as governor. He’s not violating the court order at all. There’s no accounting to be held.

        Surely y’all’re not complaining that he’s being too profligate with mercy, too ready to indiscriminately let the government’s boot off people’s necks.

        1. Surely y’all’re not complaining that he’s being too profligate with mercy, too ready to indiscriminately let the government’s boot off people’s necks.

          Yeah… we’re talking about voting here, not respect for life, liberty, or property. The boot-neck connection is a bit abstract, to say the least.

          While I generally agree that punishments for felonies short of capital crimes should be limited in duration, the designation of who can and can’t vote in Virginia should be up to the legislature of Virginia, excepting for Constitutional provisions and amendments to the contrary.

  13. the debate very quickly became about who these released felons would be voting for, as though that should factor in at all as to whether their civil liberties should be restored.

    It fucking should! If a way could be figured out to disfranchise authoritarians, I’d go for it. Based on what we know from polls, if we could undo women’s suffrage, for instance, we’d be better off. I want liberty, not civil liberty.

  14. this view, taken to its logical limits, would empower a Virginia Governor to suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone convicted of his disfavored crime.

    Seems like the same issue as Obama & the overstayed visas.

  15. Yes, allowing 200,000 felons to vote would greatly benefit the DimoRat Party because most criminals are DimoRats!

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