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Gov. McAuliffe’s lawyers take aim at GOP contempt claim

Jeremy M. Lazarus | 9/24/2016, 9:15 a.m.
Attorneys for Gov. Terry McAuliffe are urging the state Supreme Court to throw out a Republican request that he be ...

Attorneys for Gov. Terry McAuliffe are urging the state Supreme Court to throw out a Republican request that he be held in contempt for his new effort to restore the voting rights of felons.

Led by Virginia Attorney General Mark R. Herring, the legal team argues that the unprecedented contempt request from Republican House Speaker William J. Howell and Senate Majority Leader Thomas K. Norment is “baseless.”

The court has yet to consider the contempt request, and no date for a hearing has been set in the latest twist in the increasingly partisan fight between Republican leaders in the General Assembly and the Democratic governor’s authority to restore felons’ rights to vote, run for office, serve on juries and become a notary public.

The battle began April 22 when the governor restored the political rights of more than 200,000 felons en masse, only to have Speaker Howell and Sen. Norment turn to the state Supreme Court to challenge his authority to do so.

Stirring the fight was the Republican concern that the governor’s action would swell the potential ranks of voters who would support Democratic presidential nominee Hillary Clinton. However, Gov. McAuliffe has called that idea false and said his efforts are designed to end the second class status of released felons who are now working, paying taxes and raising families.

Virginia is one of only four states that bars felons from voting unless the governor restores the person’s rights.

The issue took a new turn when the state’s highest court on July 22 voided the governor’s three blanket orders restoring the rights of about 213,000 felons in a 4-3 decision, finding he only had authority to restore rights on a case-by-case basis as previous governors had done.

The governor regrouped and late last month returned to restoring felons’ rights on a case-by-case basis, sharply cutting back on the numbers of felons who could quickly regain their rights.

Even so, Speaker Howell and Sen. Norment have returned to the attack on the governor’s authority. In a quick move, they have turned to the state Supreme Court to urge the justices to hold Gov. McAuliffe in contempt for restoring the rights of people who had not personally requested their rights be restored.

Their claim is that the governor cannot restore rights even individually for those who have not sought restoration and that his action amounts to bypassing the court’s decision.

In a 49-page brief, Mr. Herring’s team argues that the governor’s actions since July 22 could not be considered contempt of the court because the “governor, himself, was not commanded to take any action” by the court when it overturned his three blanket orders restoring felons’ rights.

The governor also was not told by the court to refrain from restoring the rights of felons on an individual basis, the brief notes.

In order to find the governor in contempt, the brief states that the court would have to overturn more than a century of precedent limiting the use of the sanction “to coerce compliance with a court’s express commands or to punish a party for disobeying those commands.”

The governor’s team also argues that “what petitioners really want … is to invalidate new restoration-of-rights orders issued by the governor in spite of the individualized, case-by-case review process he has followed,” which the brief states is similar to the process his predecessors followed and is authorized by the state Constitution.

Since the governor installed the new process in late August, he has restored the rights of about 18,000 people individually, following a mandatory review of their criminal records, the brief states.

The brief argues that Speaker Howell and Sen. Norment are using the contempt procedure to “address new claims” that were not raised in their initial lawsuit.

“Such maneuvers in a contempt proceeding are plainly inappropriate and should be rejected,” the brief states.

Even if the court considers the merits of the contempt case, the governor’s legal team argues that the governor’s “actions show that he is pursuing the case-by-case approach that the Supreme Court required in its July 22 decision.”