Monday, September 12, 2016

WSJ: All Thunder and No Lightning

The Wall Street Journal proclaims that Virginia Governor Terry McAuliffe "is acting in contempt" of the State's Supreme Court. While that language is, traditionally, a matter of legal pronouncement, the Journal - it appearswishes to reduce it to the status of mere editorial insult. Why?

The Journal reminds us that, in July, the Virginia Supreme Court struck down an "executive order restoring voting rights to 206,000 felons." The Journal then implies McAuliffe asserted "absolute power" with respect to the issuance of executive orders (he did not) and that this violated the separation of powers principle in the State's constitution. After the false implication, obfuscation:

The Journal says "the individual clemency power" (a phrase found nowhere in the State's constitution), “does not mean [McAuliffe] can effectively rewrite the general rule of law.” Of course, McAuliffe never made such a claim and "effectively" is mere code for: "not so in any obvious way, to an intelligent person, but we would like to argue it anyway, posing/pretending all the while that it is both true and patently clear." Says the Journal:
He has since acted on his defiance by restoring rights to some 13,000 felons who had already registered to vote when the state Supreme Court’s decision invalidated his executive order. The Democratic Governor claims he is restoring these voting rights by the thousands on an “individual” basis. 
Wait a minute. Claims? Claims?! Well, did he? Or, did he not? Does the Journal have some compelling reason to think otherwise? The Journal simply makes the implication and provides no evidence to the contrary. Zero. And with good reason. There is no basis whatsoever for the implication that the grants were not "individual."

Then, off the rails the editorial goes: McAuliffe is showing "contempt of both the court and the legislature" and is creating a "suspension" of law "simply because [he] disagrees with it." He is acting like the "kings" the "Founders" opposed. He is trying to "rewrite the law" and "do what he wants" while we are "well down the road to tyranny." Blah. Blah. Blah.

Nothing smokes out this nonsense, like the clear, cogent writing of the dissenters - who also happen to serve on the State's Supreme Court. Their commentary on the very very stupid imagery of "suspension" of the law was particularly effective:
The terms of the 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 unless the Governor or other appropriate authority acts to restore their rights. 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.
See our summary of the dissenter's opinion here. See complete Wall Street Journal editorial here.

1 comment:

Mista Whiskas said...

Your coverage and analysis on this have been excellent. As an update, the VA GOP asked the state's Supreme Court to find McCauliffe's new approach to restoration of rights in contempt of the court's previous ruling, but the court unanimously rebuked them.

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