“The governor’s failure to provide that public document may be the fulcrum on which standing turns,” Mims told Solicitor General Stuart A. Raphael, who defended McAuliffe’s restoration-of-rights order as the governor’s prerogative under the Virginia Constitution.
“I, for one, do not understand how it is that a document of such importance can be shielded from the litigants and the citizens of Virginia,” he added.
The McAuliffe administration has refused to release the list to the Richmond Times-Dispatch and other news media, prosecutors and the General Assembly. Media reports have detailed a number of errors with the list, such as the inclusion of several currently imprisoned criminals and at least two fugitive sex offenders with Richmond ties.
“Why can’t the list be made available to the citizens of Virginia and then let them exercise whatever rights they have?” Justice Arthur Kelsey asked.
The strongest evidence for this, Cooper said, was that no governor has done what McAuliffe has and that some even rejected his approach.
“Power does not lay dormant and unused for two and a half centuries,” Cooper said.
Sen. Timothy M. Kaine (D-Va.), the state’s previous Democratic governor and a possible Clinton running mate, decided against a broad voting rights restoration order in 2010 on the advice of Mark Rubin, his senior counsel, who told him such a move would be a rewrite of the law and Constitution.
Several justices criticized the state for keeping the list of 206,000 newly eligible voters secret, which critics say has obfuscated problems with the order, such as the restoration of rights to several violent felons still in prison or on parole, and to 132 sex offenders under involuntary supervision.
McAuliffe’s order also made it simpler for felons to apply for the right to possess guns, in addition to making them eligible for jury duty and to run for public office.
The Republican leaders challenging McAuliffe in this suit don’t question his ability to reinstate voting rights, but they argue he has to do so one person at a time, after a review that considers the crimes committed.
Their attorney, Charles Cooper, said the constructions of various sentences in the state constitution “imply an individualized process” for gubernatorial powers, including the restoration of voting rights.
Past precedent, conversations from Virginia’s 1870 constitutional convention and differences between clemency powers enjoyed by Virginia’s governor and the president of the United States reaffirm this, Cooper said.
Justices Arthur Kelsey and William Mims questioned Raphael closely about a side issue in this case: why the McAuliffe administration hasn’t released its list of felons affected by the governor’s order. Mims said he didn’t see “how something so important can be withheld.”
Journalists have called repeatedly on the administration to release this list, but McAuliffe has refused, citing the broad “working papers” exemption in Virginia’s Freedom of Information Act. His Department of Elections, which also has the list, has cited a separate exemption covering voter registration records.
Spot searches of an online database, which requires the last four digits of a person’s Social Security number and was built to help people determine whether their rights were restored, have shown that a number of people who don’t fit McAuliffe’s criteria are on the list. That included 132 sex offenders confined in a state facility until The Richmond Times-Dispatch reported on the discrepancy.
Justice William Mims asked the solicitor general why McAuliffe has refused to release a list of the names of the felons whose rights were restored.
“I, for one, cannot understand how a document of such importance can be shielded from the litigants and the public,” Mims said.
McAuliffe’s administration has denied public records requests for the list under a “working papers” exemption in state law. The Virginia Freedom of Information Advisory Council said last week that the list does not qualify as a working paper, but the council cannot force the governor to produce it.