Va. Supreme Court rejects contempt charge for governor

Jeremy M. Lazarus | 9/24/2016, 10:05 a.m.
Gov. Terry McAuliffe is now free to keep restoring the voting rights of felons who have served their time — …

Gov. Terry McAuliffe is now free to keep restoring the voting rights of felons who have served their time — a relief to more than 18,000 people whose rights he has restored since Aug. 22.

The Virginia Supreme Court refused to wade further into this increasingly partisan battle and threw out another Republican attempt to restrict the governor’s constitutional authority to restore voting rights.

On Sept. 15, the court dismissed with little comment a request from GOP leaders in the General Assembly to hold Gov. McAuliffe in contempt for shifting from a blanket restoration of rights to a fast-paced, individual restoration of the right of felons to vote.

Restoring a person’s rights also allows him or her to run for office, serve on juries and become a notary public.

Earlier in the summer, the state’s highest court blocked the governor from restoring the rights of more than 200,000 felons en masse after GOP House Speaker William J. Howell of Fredericksburg and GOP Senate Majority Leader Thomas K. Norment of James City County, challenged his authority to do what no other governor had ever done.

For Gov. McAuliffe, the court’s terse decision to throw out the follow-up contempt request represents a win in a bitter fight that could lead to an attempt to change the state Constitution to strip future governors of the authority to restore felons’ rights — an authority in place for 186 years.

“I am pleased that the Supreme Court has dismissed the case Republicans filed in their latest attempt to prevent individuals who have served their time having a full voice in our society,” Gov. McAuliffe stated after learning of the court’s decision.

“It is my hope,” he continued, “that the court’s validation of the process we are using will convince Republicans to drop their divisive efforts to prevent Virginians from regaining their voting rights and focus their energy and resources on making Virginia a better place to live for the people who elected all of us to lead.”

Virginia Attorney General Mark R. Herring, who represented the governor before the court, added that “this contempt motion was completely baseless, and I’m glad that the Supreme Court dispatched it so quickly.

“Gov. McAuliffe is doing the right thing in giving these Virginians back their voice and their vote and I hope the legislature will join the effort,” he added.

Republican leaders indicated they are finished trying to restrain Gov. McAuliffe through the courts, but would take up legislation at the next General Assembly session in January to push for restraining the governor’s authority.

“We are disappointed, but respect the Supreme Court’s order,” Speaker Howell stated. “Throughout this process, our goal was to hold the governor accountable to the Constitution and the rule of law. The governor stretched the bounds of the Virginia Constitution and sought to expand executive power in a manner we viewed as inappropriate and reckless.

“The General Assembly must now review the Constitution’s provision governing felon voting,” Howell added. “The current provisions of the constitution are vague, vulnerable to executive overreach. Several proposals have already emerged, and we expect others to come forward.”

Sen. Norment already has proposed a constitutional amendment that would automatically restore voting rights to nonviolent felons who have completed their sentences and paid any restitution, court costs and fees. But it also would bar violent felons from ever having their rights restored.

Gov. McAuliffe and other Democrats complain that the payment requirement for nonviolent felons would amount to a modern day poll tax, although Democrats in the state Senate previously supported a similar amendment with a payment requirement that Republicans killed.

In 2015, Gov. McAuliffe dropped any requirement that felons first pay court costs and fees and began restoring rights for those who had fully completed their sentences, including probation and parole. At that time, Republicans did not object to that move because it involved only nonviolent offenders.

Republicans began to object when the governor moved in April to an en masse restoration for violent as well as nonviolent offenders who had completed their terms.

Republican Delegate Greg Hadeeb of Salem has introduced his own proposed amendment in the House. Like Sen. Norment, his proposal would automatically restore the rights of nonviolent felons who have served their time and paid court debts. However the Hadeeb proposal would allow violent felons to apply to the governor for restoration of rights two years after completing their sentences and paying court debts.

Republican Delegates Peter Farrell and John O’Bannon of Henrico County plan to co-patron that proposal.

Such proposals, though, would not impact Gov. McAuliffe, who will be out of office in early January 2018 and could restore the rights of 200,000 felons or more before he leaves office using the procedures now in place.

It takes at least two years to get a constitutional amendment on the ballot for voters to consider. The General Assembly first must pass a proposal in two separate sessions, separated by an election of members. That means any measure passed in the 2017 legislative session would have to pass again in the 2018 session, following the election of a new governor and members of the House.

Virginia is one of four states that permanently disenfranchises felons, with the governor being the only official who can restore their rights.

Gov. McAuliffe has pushed harder to restore felons’ rights than any of his predecessors. It remains to be seen whether the Republican backlash will block his successors from taking a similar aggressive approach on the issue.