Legislators File Legal Challenge

May 27, 2016

Last month, Governor Terry McAuliffe announced his executive action to immediately restore the political rights of over 200,000 convicted felons, including approximately 40,000 felons who committed violent crimes. This blanket restoration contains no criteria or limitations. It does not even require the individual to pay their obligated debts to victims or the courts. Not only are they given the ability to vote, they will have the ability to serve on a jury. In fact, this action is already being used by an accused cop killer to demand that convicted felons be considered in the jury pool for his trial.

While it is arguably a poor policy decision in which unintended consequences are already being realized, what is more significant is the fact that it is unconstitutional. It defies the plain text of the Constitution of Virginia and has no similar precedent in history.

This is why General Assembly Republicans officially filed a lawsuit today in the Virginia Supreme Court to block the Governor’s action. We’re asking the Supreme Court to reverse the Governor’s executive order and to prevent him from issuing similar orders down the road.

The Governor has the authority to restore political rights on an individualized basis, but he cannot issue blanket restoration. The Virginia Supreme Court reviewed the history of Virginia’s clemency power as recently as 2012 and concluded that it must be narrowly construed (Gallagher v. Commonwealth). The last several administrations studied the issue, but reached the same conclusion. In fact, on this very question a top Kaine advisor concluded that the Governor had no such authority, and any action to offer a blanket restoration would be a rewrite of the Constitution via executive order.

We have three separate and co-equal branches of government to serve as checks and balances against abuses of power. We are compelled to challenge the Governor’s action to fulfill our constitutional duty to check the excesses of executive power. President Obama and his administration have overstepped their authority on a number of issues at the federal level, but we cannot allow our executive to mirror that overreach.

If you would like to view the entire court filing, please click here. I will do my best to keep you updated as the case progresses.