The Wall Street Journal: Virginia’s Election Felony
July 20, 2016
President Obama has stretched beyond his legal power to end run Congress, and the bad habit is catching on. In April Virginia Democratic Governor Terry McAuliffe issued an executive order giving voting rights to the state’s 206,000 convicted felons, with no consent from the state legislature.
Whether felons can vote in federal elections is determined at the state level, and Virginia has prevented the practice. The Virginia Supreme Court heard arguments Tuesday challenging Mr. McAullife’s action brought by Virginia House Speaker William Howell and Senate Majority Leader Thomas Norment (both Republicans), along with four Virginia voters. While Virginia’s constitution allows the Governor to grant clemency to felons, they say Mr. McAuliffe’s action exceeds his authority and violates the separation of powers.
We’re not against letting some felons who have done their time regain voting rights. But those decisions should be determined by legislatures or popular referenda like any other voting statute. The Virginia constitution says “[n]o person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”
In 2010 then Governor Tim Kaine concluded after examination that the state constitution barred him from acting unilaterally to restore voting rights en masse. In a letter to the ACLU of Virginia, Mr. Kaine’s counselor Mark Rubin wrote that “[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.”
In 2013 a bipartisan state government committee headed by then Attorney General Ken Cuccinelli reached a similar conclusion that the state constitution only allows the Governor to act on a case-by-case basis, not in one mass action. The Governor can act only with “individualized consideration and individualized grant[s] of clemency,” and to do more than that would require action by the legislature.
Mr. McAuliffe has been frustrated by a GOP legislature that has blocked his attempts to expand Medicaid, among other things, so he acted on his own on voting felons. The idea is to increase the pool of Democratic voters. Mr. McAuliffe’s counsel argues that if the constitution is read literally it should follow that the Governor lacks the power to pardon women or to pardon more than one man. This is a semantic invention to justify a pre-determined political result.
Divided government is common, and no doubt it’s frustrating to elected officials. The proper democratic response is to work out compromises within the boundaries allowed by state and federal constitutions. Frustration with legislatures is not a justification for executives to rewrite the law on their own. If Mr. Obama’s lawlessness spreads, self-government will suffer across the country.