ICYMI: Howell and Norment: Court challenge seeks to halt executive order for restoration of felon rights

Richmond Times Dispatch: Howell and Norment: Court challenge seeks to halt executive order for restoration of felon rights
Speaker William J. Howell and Senate Majority Leader Thomas K. Norment, Jr.
May 23, 2016

In a sweeping executive order, Gov. Terry McAuliffe restored the political rights of more than 206,000 convicted felons. These felons, including the 40,000 of them who committed violent crimes, are now eligible to register to vote, serve on juries and run for office.

Virginians believe in second chances. That is why our constitution already allows those convicted of a felony to apply to have their rights restored by the governor on a case-by-case basis.

McAuliffe threw that individualized process — and the constitution — to the wind, embracing a Washington-style view of executive power instead. In the process, he is hurting our criminal justice system.

We are challenging this unconstitutional action in the Virginia Supreme Court. The legislative and judicial branches have an obligation to serve as a check on executive power. We will not let this overreach go unchecked.

Since 1830, the Constitution of Virginia has placed limitations on the political rights of convicted felons. The concept is simple: If you do not follow the laws and respect the rights of other citizens, you may be subjected to losing some of your rights. The surest way to retain all your rights is to not commit a felony.

Governors have always exercised clemency power with discretion, using their authority on a case-by-case basis to restore the rights of those who are prepared to be productive members of society again. McAuliffe acted with no such discretion. He didn’t even know who these people were.

His executive order applies to every felon regardless of the crime committed. According to the limited data available, more than 40,000 of the convicts committed violent crimes. That means a convicted pedophile could serve on a jury that decides if the next child predator goes to prison.

The governor also does not require individuals to complete their full sentencing. He is restoring the rights of felons while they remain on court-ordered unsupervised probation.

The governor often says these individuals have “paid their debt to society.” That is simply not the case. A criminal’s sentence is punishment, not a debt. We doubt the rape victim feels “repaid” just because her perpetrator finished his prison sentence. Even if you accept the governor’s erroneous premise, his order does not require felons to repay the debts required of them by the justice system. Their rights are being restored even if they have not paid restitution, fines or court costs. In other words, they literally have not paid their debts.

The governor is not only wrong on the merits, he is also acting without legal authority. His order defies the plain text of the constitution, has no precedent in Virginia history and flouts the separation of powers principle on which representative government rests.

First, according to the Virginia Constitution, the governor has the power to restore the rights of convicted felons, but only on a case-by-case basis. Article II, Section 1 specifically applies the governor’s authority to restore rights to individual “persons.” McAuliffe did not act on an individualized basis. He issued a blanket executive order covering more than 200,000 individuals, defying the plain text of the constitution.

Second, the order relies on an unprecedented view of executive authority. No governor has ever purported to have this much power. In fact, the past two governors explicitly found they lacked such broad power. In 2010, Gov. Tim Kaine’s lead counsel said blanket orders restoring rights were not a “contemplated use of executive authority” and would be a “rewrite of the law.” In 2013, a bipartisan and independent committee established by the attorney general’s office concluded the governor did not have the authority to institute an automatic, self-executing restoration of rights.

Third, the order effectively suspends the constitution’s prohibition against allowing felons to vote. If the governor’s power can be applied in this way, he can effectively suspend any law via the clemency power. For example, a governor could issue monthly pardons for anyone convicted of illegally possessing a firearm, effectively suspending the laws passed by the General Assembly. This is a dangerous precedent that flouts the separation of powers principle.

We cannot ignore McAuliffe’s disregard for the constitution and the rule of law. Our attorneys filed a petition in the Supreme Court of Virginia yesterday to stop the enforcement of the order. Several Virginians are joining us as petitioners in this case. Because action must be taken immediately to protect the integrity of November’s elections, our attorney is also filing a motion asking the Supreme Court to convene in a special session to hear the case right away.

The case against the governor is overwhelming. More than 240 years of accepted practice, precedent-setting Supreme Court cases, and a plain reading of the Constitution lead to the unambiguous conclusion that the governor’s order is unconstitutional and cannot stand.

William J. Howell is the speaker of the Virginia House of Delegates and represents the 28th House District. He can be reached at delwhowell@house.virginia.gov. Thomas K. Norment Jr. is the Virginia Senate majority leader and represents the 3rd Senate District. He can be reached at senator@senatornorment.com.