There are compelling arguments for extending the franchise to those who have been convicted of felonies, but who have made restitution. Virginia governor Terry McAuliffe (D.), who on Friday signed an executive action re-enfranchising more than 200,000 convicted felons, cannot offer any of them.
The governor’s rationale for his unprecedented action — which not only restores voting rights, but restores, too, the right to hold office, to serve on a jury, and to act as a notary public — relies largely on the declaration that the disfranchisement of felons “disproportionately affects racial minorities and economically disadvantaged Virginians” and that “all individuals who have served the terms of their incarceration and any periods of supervised release deserve to re-enter society on fair and just terms, including to participate in the political and economic advancement of Virginia.”
The former contention ignores the question of intent. There’s no question, of course, that black Americans have faced an arduous road to securing voting rights, including in Virginia. But the disfranchisement of felons is largely unrelated to that history. Two dozen states had adopted laws barring felons from voting before the Civil War, and the post–Civil War Reconstruction Amendments — crafted, recall, to secure the right of black males to vote — expressly provided that the states may abridge a citizen’s voting rights “for participation in rebellion, or other crime.” McAuliffe has insinuated discriminatory intent (he has said that he views disfranchisement of felons as “a remnant of the poll tax”) without providing any evidence. Nor has anyone else produced such evidence, which the Supreme Court has said would be required to make disfranchisement unconstitutional. If the law currently on the books truly had this intent, it’s likely that one of any number of advocacy groups, or the current Department of Justice, eager to challenge incidents of alleged voter suppression, would have brought suit. But they haven’t.
McAuliffe has insinuated discriminatory intent without providing any evidence.
Meanwhile, the latter suggestion, that it is only “just” to restore voting rights to those who have completed their sentences, is hardly obvious. Federal and state laws place a long roster of “civil disabilities” on felons who have completed their terms, including prohibitions against owning a firearm. McAuliffe’s order expressly does not extend this far. But why not? Why, by McAuliffe’s logic, should the privilege of voting be restored, but the constitutional right to keep a firearm not be? Obviously, a clear and convincing case can be made for forbidding felons to carry guns. A similarly clear case should be required before allowing them to once again participate in shaping their state’s and country’s laws.
This can be done on a case-by-case basis — as Virginia already acknowledges. Under Article II, Section I of the state’s constitution, “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority,” and in recent years, the legislature helped expedite that possibility by establishing a process whereby felons who have met certain conditions can apply for the restoration of certain civil rights, including the right to vote; those applications are subject to careful, individual review. That makes sense. People are different. Some do genuinely turn over a new leaf.
#share#But McAuliffe has obliterated that individualized process under the dubious legal rationale that the constitutional provision quoted above gives him the power to re-enfranchise felons as a class. That claim is almost certain to be challenged in court, and rightly so. Article V, Section 12 of the state constitution requires the governor to “communicate to the General Assembly . . . particulars of every case . . . with his reasons for remitting, granting, or commuting” a punishment. The last two governors — one a Republican, one a Democrat — both said that a blanket order restoring the civil rights of felons lies outside the governor’s constitutional authority, given that provision.
But besides being unconstitutional, it’s also a plainly bad idea, sure to bring into political life a not insignificant number of people who have no business being part of it, or at least not yet. And if, as McAuliffe says, “democracy is strengthened by having more citizens involved in the political process,” it is not clear why he would not seek to enfranchise other classes — felons still in prison, for example.
McAuliffe has circumvented the law and subverted good governance.
Given McAuliffe’s professional past (he was chairman of the Democratic National Committee) and his long and profitable connections to the Clintons (he’s the recipient of $13.4 million from Clinton Foundation donors), it’s hard not to see partisanship at work. Virginia is a purple state where close races are decided by a few hundred votes. If 200,000-plus felons are re-enfranchised, it would increase the state’s voter rolls by nearly 4 percent — and, best estimates suggest, lean the state half a percentage point leftward. McAuliffe is certainly aware of that fact.
That does not negate the fact that restoring voting and other civil rights can be an element in helping criminals who have served their time and who have changed their ways to reenter society. But those rights should not be granted lightly. In his zeal for justice — if that is what this is — McAuliffe has circumvented the law and subverted good governance. That’s an injustice to the rest of Virginia’s voters.