Wall Street Journal: Virginia’s Felon Rebuke
July 25, 2016
The courts have been an occasional check on President Obama ’s abuses of executive power in Washington and now they’ve piped up in Virginia. On Friday the Virginia Supreme Court struck down Governor Terry McAuliffe ’s executive order restoring voting rights to the state’s convicted felons as an abuse of power.
“Governor McAuliffe’s assertion of ‘absolute’ power to issue his executive order . . . runs afoul of the separation-of-powers principle” enshrined in the Virginia Constitution, Chief Justice Donald Lemons explained in a 4-3 opinion. “Although the Governor is entitled to champion his views, he cannot do so in contravention of law.”
The Governor argued that because he has the power to grant clemency, he can issue a blanket reversal of the ban on felons voting. “We find this textual argument to be overstated at best,” Justice Lemons wrote. While everyone agrees the Governor may pardon felons on a case by case basis, that “does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception.”
Mr. McAuliffe’s interpretation had been rejected by all of his predecessors as Virginia Governor, including Tim Kaine, who is now Hillary Clinton ’s running mate and wanted to restore felons’ voting rights but accepted that the state constitution barred it. “[W]e accord interpretive respect to the unbroken historical record of the last 71 Governors of Virginia,” the Court wrote. All previous Governors exercised their clemency authority case by case. “The clemency power may be broad, but it is not absolute.”
Mr. McAuliffe’s power grab was a cynical maneuver to pad Virginia’s Democratic voter rolls to assist Mrs. Clinton. His willingness to violate the state’s history, constitution and separation of powers for a partisan end deserved the legal rebuke it has now received.