Academic journal article Harvard Law Review

Felon Disenfranchisement - Scope of Governor's Clemency Power - Supreme Court of Virginia Holds That Executive Order Restoring Voting Rights En Masse Is Unconstitutional - Howell V. McAuliffe

Academic journal article Harvard Law Review

Felon Disenfranchisement - Scope of Governor's Clemency Power - Supreme Court of Virginia Holds That Executive Order Restoring Voting Rights En Masse Is Unconstitutional - Howell V. McAuliffe

Article excerpt

Felon Disenfranchisement--Scope of Governor's Clemency Power--Supreme Court of Virginia Holds That Executive Order Restoring Voting Rights En Masse Is Unconstitutional.--Howell v. McAuliffe, 788 S.E.2d 706 (Va. 2016).

In a country that remains anomalous for its pervasive disenfranchisement of convicted felons, (1) Virginia has proven uniquely unforgiving. The Old Dominion was the first state to legally bar convicted felons from voting, (2) and after expanding the law's scope in a transparent effort to target African Americans, (3) it currently stands as one of only four states whose constitution "den[ies] the right to vote to all persons with felony convictions, even after they have completed their sentences." (4) Under article V, section 12 of the Virginia Constitution, however, the Governor has the power "to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this constitution." (5) Pursuant to this restoration power, Virginia Governor Terry McAuliffe recently issued an executive order to reenfranchise roughly 206,000 Virginians who had previously been convicted of felonies but had since served their full sentences and supervised releases. (6) Just three months later, in Howell v. McAuliffe, (7) the Supreme Court of Virginia held that the order was unconstitutional because the restoration power was intended for use solely "on an individualized case-by-case basis." (8) As a textual matter, the Virginia constitution provides no case-by-case requirement for removing political disabilities. But the court opined that several "competing inferences" undermined the Governor's textual argument. (9) In finding these inferences sufficiently persuasive to obscure the constitution's plain language, the majority gave short shrift to the history behind the restoration power's enactment. Read properly, this history largely rebuts the court's presumption that all clemency powers were intended to share the same individualized restraints.

In the wake of Governor McAuliffe's enfranchisement order, two leaders of the Virginia state legislature, William Howell and Thomas Norment, Jr., as well as "four other registered Virginia voters ... filed a petition seeking writs of mandamus and prohibition." (10) Petitioners argued principally that group clemency orders were unlawful under the Virginia Constitution. (11)

The Supreme Court of Virginia issued the writs of mandamus and granted the petitioners' requested relief. Writing for the majority, Chief Justice Lemons (12) first addressed standing. Under Virginia precedent, citizens have standing if there is "sufficient interest" and "the parties will be actual adversaries." (13) The majority thus granted standing on the grounds that an unconstitutional expansion of the Virginia electorate would sufficiently injure individual registered voters. (14) The court also held that the petitioners had joined all necessary parties. (15)

The bulk of the majority's analysis focused on the constitutionality of Governor McAuliffe's order. Article II, section I of the Virginia Constitution details the criteria for disenfranchisement, stating that "[n]o 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." (16) Chief Justice Lemons emphasized that no prior governor had used (or asserted they had the authority to use) their restoration power to restore voting rights en masse. (17) Longstanding executive practice, Chief Justice Lemons declared, "has traditionally played an important role in informing '[the courts'] determination of "what the law is,"'" (18) especially when that longstanding practice is one of restraint. (19) While the majority conceded that this precedent was not controlling, it was nonetheless persuasive given Governor McAuliffe's "unprecedented" action. (20)

Chief Justice Lemons then rejected the argument that a literal reading of the constitution's text permits group clemency orders. …

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