The fight over Virginia Gov. Terry McAuliffe’s move to restore voting rights to more than 200,000 felons is going before the state Supreme Court on Tuesday. The court will hear arguments on the constitutionality of the governor’s order. It agreed to expedite review of the challenge brought by state Republicans, who want a ruling before the November general election.
The Democratic governor described his order as an important civil rights advancement. About a quarter of the state’s black population has been barred from voting because of convictions.
But Republican legislative leaders allege McAuliffe has a purely partisan motivation to deliver more votes to Democrats, including to help Hillary Clinton win the crucial swing state in November.
The legal issue before the Virginia Supreme Court is more narrow: Does the governor have authority under the state constitution to restore voting rights to thousands, or must he do it on a case-by-case basis?
Sen. Tim Kaine, the state’s last Democratic governor and possible Clinton running mate, determined in 2010 that he could not issue a blanket voting rights restoration order.
McAuliffe’s Republican predecessor, Robert McDonnell, in 2013 began to ease requirements for ex-offenders to regain voting rights, and McAuliffe ramped up that effort with his order.
Republican challengers say McAuliffe’s sweeping order for offenders who have finished serving their sentences was a clear overreach of the governor’s clemency powers.
“Governor McAuliffe’s executive order defies the plain text of the Constitution, flouts the separation of powers, and has no precedent in the annals of Virginia history,” attorneys for House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four voters argue in their lawsuit. “The Governor simply may not, with a stroke of the pen, unilaterally suspend and amend the Constitution.”
Republicans want the court to revoke voting rights granted under the order — to 9,464 felons as of July 12.
McAuliffe is represented by the Virginia Attorney General Mark R. Herring (D), who argued in legal filings that the state constitution “empowers the governor to restore rights en masse.”
They are supported by civil rights groups, several of which were planning to rally in support of the governor outside the court house on Tuesday morning.
Herring also downplayed the practical effects of an adverse ruling, saying the governor would issue hundreds of thousands of individual orders to preserve the restoration of rights.
The governor’s order did not come without hiccups.
It also made it simpler for felons to apply for the right to possess guns in addition to making them eligible for jury duty and public service. At least several violent felons still in prison or on parole, and 132 sex offenders under involuntary supervision, were among those whose rights were mistakenly restored.
Matt Moran, a spokesman for the House speaker, said those errors would have been avoided had McAuliffe scrutinized each case.
“All of the mistakes are case-in-point about why he needs to do an individual order,” said Moran. “He will be held accountable for every single order he signs.”
Virginia is one of 11 states that requires individual exemptions for ex-offenders to vote after finishing their sentences, according to the Brennan Center for Justice.