Monday, July 25, 2016

Virginia: Governor Sidesteps Foolish Ruling

The Virginia Supreme Court recently ruled "the clemency power may be broad, but it is not absolute" - a position taken by no governor, or president, in the history of the United States. The Court then hopped on the straw man's shoulders and boldly observed none of Virginia's 71 Governors has ever "issued [a] clemency order of any kind, whether to restore civil rights or grant a pardon, to an entire class of unnamed felons." No, they all "exercised their clemency powers — including pardons, reprieves, commutations, and restorations— on an individualized case-by-case basis taking into account the specific circumstances of each."

Then, the Court went abruptly stupid. It raised the horrifying specter of "suspending laws" without "consent of the representatives of the people," and composed this amazing passage:
We acknowledge the contention that the Governor’s Executive Order did not wholly suspend the operation of the voter-disqualification provision ... Even so, we fail to see why this matters. 
The Court concluded that Governor McAuliffe's attempt to restore voting rights to hundreds of thousands of felons - in the style of amnesty, or group pardon - amounted to an attempt to "effectively rewrite the general rule of law and replace it with a categorical exception." Frightening stuff indeed. No, McAuliffe, said the Court, could only "use his clemency powers to mitigate a general rule of law on a case-by-case basis."

Dissenters noted the Court's notion of "suspension" was even more goofy than its analysis suggested.
... the majority [improperly] defines what suspension means [The] . . . term is generally applied to the abrogation of a statute or statutes, so that they lose altogether their binding force . . . [T]he law is put out of action; . . . it is in substance repealed . . . A pardon does not affect the legality of the act. It simply frees a guilty person from the legal consequences of his illegal acts ... The terms of [McAuliffe's] Executive Order are not prospective and do not prevent any felon from being disqualified from voting upon conviction. Rather, the Executive Order only restored the rights of a subset of felons, namely, those individuals previously convicted of a felony who, as of April 22, 2016, were no longer incarcerated or on supervised probation, which is approximately 206,000 of the over 450,000 felons eligible to be considered for restoration. Moreover, felons whose rights were not restored by the Executive Order, as well as newly convicted felons, continue to be disqualified upon conviction. [Indeed], if the Executive Order was, in fact, a suspension of the Disenfranchisement Clause, there would be no need for the Governor to enter subsequent orders restoring the rights of additional felons. When Governor McAuliffe’s term is over, the new governor will have the discretion to decide whether to restore the rights of subsequent felons disqualified from voting upon conviction as required by the Disenfranchisement Clause. Thus, it is apparent that the Executive Order clearly did not actually reframe the Disenfranchisement Clause as asserted by the majority, nor does it suspend operation of that constitutional provision.  
So, it's easy. McAuliffe told Democrats at the national convention that he will indeed restore voting rights to those hundreds of thousands of felons within the next two weeks. According to the Washington Post, he "vowed to use an autopen to sign the orders." See story here.


Anonymous said...

I think if McAuliffe wants to restore the rights of felons in Virginia than, he should restore ALL of their rights. It takes away the impression of dirty pool in an election year.

In my opinion, the Gov is making a mockery of the pardon power by restoring "only" voting rights. Whether or not felons can vote is a legislative decision handled state by state. Some states don't allow felons to vote at all (Virginia). Other states allow felons to vote, yet others only allow non-incarcerated felons to vote. All of which are/were legislative decisions/laws.

Im 100% in favor of pardons, commutations, & restoration of rights by those who are deserving. I'm not a fan of political maneuvering & mocking the pardon power to win an election. Go through the apps & restore the rights of as many as are deserving Gov...!

2 cents...

Anthony Elmer said...

I do not mind also giving Felons back their rights to vote based on the crime they are convicted of. I do not believe all felons should receive their rights back, should be on a case by case basis. This seems more political than his care for the felons themselves.

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