IN A FEW WEEKS, the Virginia Supreme Court will hear oral arguments in a legal challenge to Gov. Terry McAuliffe’s executive order purporting to restore political rights to 206,000 convicted felons.
I filed the lawsuit with the Senate majority leader and four other Virginia voters because the governor’s order is an unprecedented example of executive overreach. He simply lacks the power he claims to exercise. A plain reading of the Constitution of Virginia and more than 240 years of legislative practice and legal precedent make it clear that the governor’s unconstitutional action cannot stand. We are confident we will prevail on the merits.
The governor’s attempted action is also dangerous. He included 40,000 violent felons under his order, meaning that rapists, murderers and child predators could be allowed to serve on juries. And in recent weeks, we learned of countless errors made by the administration. In short, they badly botched the implementation of a bad idea.
People are also reading…
Virginians believe in second chances. Our constitution sets out a process by which convicted criminals can have their rights restored when they are ready to again become productive members of society. Under the constitution, the governor can restore the rights of individuals on a case-by-case basis. This process works, as is evidenced by the fact that McAuliffe restored the rights of over 18,000 people before issuing his executive order, more than any previous governor.
But now, the governor has thrown that individualized process—and the constitution—to the wind. Instead of engaging the legislature and having a debate about who should have their rights restored, when and how, the governor opted for Washington-style executive action. He chose overreach instead of outreach, dictatorial power over a political debate.
The constitution limits the governor’s clemency powers to an individualized, case-by-case power. In fact, the previous two governors explored what McAuliffe is attempting to do, and concluded specifically they lacked such power. Democratic Gov. Tim Kaine’s top counsel said attempting a mass restoration of rights would be a “rewrite of the constitution.”
Never before in the 240-year history of the commonwealth has a governor taken such a broad and expansive reading of his clemency power; and for good reason. By issuing automatic mass-restoration orders, McAuliffe is effectively nullifying the constitution’s provision stripping felons of their political rights. If the governor can exercise his clemency power in this way, what is to stop a future governor from applying it differently? What if a future governor decided to issue mass pardons for anyone who violates Virginia’s gun laws?
The Supreme Court hears this case on July 19. The court will hold a special session for the first time since 1993, a sign that the judicial branch understands the urgency of this case. A bipartisan group of 43 commonwealth’s attorneys, which includes Democrats from Fairfax, Arlington and Prince William counties, and three former attorneys general have submitted briefs supporting our case.
In addition to the constitutional question, the practical effects of this dangerous order are frightening. The governor made no distinction between violent and non-violent felons. In fact, in Dinwiddie and Augusta counties, defendants are already petitioning the court to have felons added to their jury pools. Does Virginia really want convicted child predators deciding the fate of the next child predator?
The order also makes it easier for convicted felons to get their gun rights back. Here in Stafford, a man convicted on four counts of domestic violence recently applied to have his gun rights restored. By not doing an individual review of cases like this, the governor is shifting the burden to local officials whose resources are already stretched thin and making our communities less safe.
We can see that this bad idea was poorly implemented. The governor mistakenly restored the rights of a murderer still in prison, a sex offender now deported to Peru, and three gang members in Southwest Virginia. There are dozens more examples.
Most recently, an independent commonwealth’s attorney reported the governor restored rights to 132 of Virginia’s worst sex offenders. These offenders are so dangerous that after their criminal sentence is over, the state civilly commits them to a treatment facility where they can remain indefinitely. The governor is trying to re-interpret his order to cover up this politically inconvenient mistake.
The poor execution of the order demonstrates a stunning level of incompetence in the executive branch. The order is dangerous to Virginians, and perhaps most importantly, the order is an unconstitutional use of executive power that threatens the rule of law. It cannot stand.
Bill Howell is speaker of the Virginia House of Delegates. He represents the 28th District, which includes parts of Stafford County and the city of Fredericksburg.