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Politics & Policy

Court Blocks Terry McAuliffe on Felon Voting, but He Won’t Give Up

Virginia Governor and former Democratic National Committee Chair Terry McAuliffe is a very good friend of the Clintons: he was basically their bagman for years, and reportedly was one of the key allies pushing for Virginia Senator Tim Kaine to be Mrs. Clinton’s running mate (which also opens up a Senate seat for a temporary appointment by McAuliffe, and possibly for the term-limited Governor to run himself in a 2017 special election). McAuliffe may also be a man in need of some favors to cash in down the road, as for the past year he has been under federal investigation for campaign fundraising improprieties. Looking ahead to this November’s election and the possibility that Virginia might still be a swing state, McAuliffe in April by executive order unilaterally instituted a blanket, ongoing restoration of voting rights (and a few other civil rights, such as – conspicuously – the ability to hold public office) for over 200,000 convicted felons, effective as soon as they completed their sentences. The Republican leadership of the Virginia Legislature – House Speaker Bill Howell and Senate Majority Leader Tommy Norment – filed suit, joined by individual Virginia voters, asking the courts to invalidate the executive order and the voter registrations.

On Friday, a divided Supreme Court of Virginia struck down McAuliffe’s order, finding that it exceeded his powers under the Virginia Constitution, and that individual voters had the right to sue to prevent their votes from being diluted by 200,000 illegal voters:

Article II, Section 1 of the Constitution of Virginia sets out a general rule of law and then provides for an exception: “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.”…McAuliffe issued an Executive Order that inverts this rule-exception sequence. The practical effect of this Executive Order effectively reframes Article II, Section 1 to say: “No person who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of supervised release.” 

Article I, Section 7 of the Constitution of Virginia provides: “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”…Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists. 

This is similar to the analysis, albeit under different constitutional language, that illustrates why President Obama’s blanket amnesty order goes beyond the discretionary powers of the President over individual prosecutions. The court rejected McAuliffe’s argument that the power to grant individual clemencies  gives him the power to just nullify the consequences of a conviction for 200,000 people at a time:

Governor McAuliffe asserts that his clemency power in this matter is “absolute” under Article V, Section 12 of the Constitution of Virginia….We respectfully disagree. The clemency power may be broad, but it is not absolute. Deeply embedded in the Virginia legal tradition is “a cautious and incremental approach to any expansions of the executive power.”…This tradition reflects our belief that the “concerns motivating the original framers in 1776 still survive in Virginia,” including their skeptical view of “the unfettered exercise of executive power.” 

The opinion by Chief Justice Lemons cited the origins of the “anti-suspension” provision in Virginia’s 1776 Constitution, and noted Patrick Henry’s vigorous but ultimately failed attempt to get the same provision added to the federal Constitution in 1788: “Your President may easily become king,” Henry warned, because if the “American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!” Notably, the court also cited distinctions between the federal and Virginia pardon powers, which have historically been more constrained. The fact that this decision was based only on the state constitutional powers of the governor means it can’t be appealed to the U.S. Supreme Court.

If Terry McAuliffe was a Republican, this might be the end of the matter, as GOP elected officials have been hesitant to challenge the courts. George W. Bush, for example, went back to Congress after the Supreme Court struck down his original plan for handling Guantanamo detainees, then meekly accepted the outcome when the Court then struck down what Congress had done. When the Right does stand up against the courts, it’s generally in the form of fringe figures like Kim Davis or Cliven Bundy who get roundly denounced by the media for daring to question judicial supremacy.

Democrats have a different tradition, going back to the era of “massive resistance” to segregation, by which a loss in the courts is read in the most cramped, narrow terms possible and then ignored in practice, requiring their adversaries to engage in almost perpetual litigation to subdue them. The goals of the segregationists have mostly been abandoned by today’s Democrats, but the tactics remain, as we see in – among other areas – the endless scorched-earth litigation wars against the death penalty, school choice, and popular referenda limiting racial preferences.

McAuliffe’s reaction to the ruling is a classic from the massive resistance textbook: he’s just going to do the same blanket clemency one at a time, again with no regard for the individual circumstances, to public cheers for his defiance of the courts:

Virginia Gov. Terry McAuliffe (D) stood before Democrats gathered at their party’s national convention Monday and promised to individually restore voting rights to hundreds of thousands of felons within the next two weeks. McAuliffe vowed to use an autopen to sign the orders, sidestepping a recent court ruling…The ruling appeared to reverse a signature achievement of McAuliffe’s administration. But he indicated that it inspired him to take action. “By the end of this week, I will have restored the rights of all 13,000!” a defiant McAuliffe thundered at breakfast for the state party delegation at the Democratic National Convention. He got a standing ovation. “And in two weeks all 206,000 will have their rights back, folks!” he said. Another standing ovation.

To Democrats and liberals, no battle is ever over until they win once in the courts, at which point that victory becomes a permanent, sacrosanct right. So long as they use tactics that Republicans and conservatives shrink from, massive resistance will always win the day.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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