UPDATE: Supreme Court declares Governor’s actions unconstitutional

On Friday, the Supreme Court of Virginia overturned Governor McAuliffe’s executive order that restored the rights of 206,000 convicted felons including 40,000 violent felons. This is a major win for our constitution and the rule of law in Virginia. The Court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22nd executive order and subsequent orders. The court gave a cancellation deadline of August 25th.

When convicted felons have completed their sentence and paid their debt to society, they deserve the opportunity to demonstrate they once again can responsibly carry out their civil rights. However, there should be a clear and consistent delineated policy that applies fairly and equitably. That policy should take into account the nature of the crimes committed, whether they have paid back their victims and the court system, and their willingness to serve as productive members of society.

The Governor’s executive order was flawed from the start. His blanket restoration resulted in 40,000 violent felons gaining the right to vote and sit on juries. To be clear, the Governor’s order would have allowed convicted murderers to sit on the jury of murder trials. Several discrepancies were found in his initial database, including the restoration of 132 civilly committed sex offenders in Nottoway County. The Governor and his staff tried to cover up this mistake by claiming they were “clerical errors.” To make matters worse, the Governor refused to release the list for vetting by the public.

Many across Virginia opposed the Governor’s reckless actions, including three former Attorneys General and 43 Commonwealth’s Attorneys–Republican, Democrat, and Independent. Even Tim Kaine, the Democratic nominee for Vice President, opposed this effort. In 2010, Mark Rubin, Counselor to then Governor Tim Kaine, wrote “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers. And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.” Click here to view the letter.

The unprecedented nature of the Governor’s actions was accurately described in the majority opinion issued by the Court and written by Chief Justice Lemon. “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.” Click here to read the full opinion by the Court.

I believe in second chances. Felons that have served their time and paid their debt to society should have their rights restored on a case by case basis as outlined by law and convention. I hope Governor McAuliffe will learn from his mistake and realize that he cannot govern via executive order in the same manner that President Obama does.