Earlier this year, Virginia Governor Terry McAullife used his executive powers to restore the voting rights to thousands of ex-felons
who had finished their prison term, parole, and/or probation. Today, in a 4-3 decision, the Virginia Supreme Court
invalidated the measure -- re-disenfranchising thousands of Virginians. This, simply put, is legally outrageous.
The relevant constitutional clause seems straight-forward enough: Article II, Section 1 of the Virginia Constitution informs us that "No 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." Governor McAullife issued an order which restored voting rights to all persons convicted of a felony who had completed all portions of their sentence (including any parole or probation periods). One would think that would be that -- the constitutional text is clear, and so there is no further work to be done.
But no, says the Court. The structure of this provision indicates that felon re-enfranchisement is meant to be an exception
to the rule. The Governor's blanket restoration of voting rights turns the rule into the exception -- effectively becoming a suspension of the constitutional mandate that felons normally experience a lifetime bar on voting.
This, to put it mildly, is jaw-dropping in its reach. It's not just that it is obviously extra-textual -- although it is. It's that it is obviously extra-textual without being bounded by anything that purports to be a judicially enforceable rule or standard for when the governor can exercise his re-enfranchisement power. We're told he can't do it in a "blanket" proceeding -- everybody, all at once. It is presumably evident, though, that the Governor maintains his authority to exercise his enfranchisement authority individually -- or even in groups. So we're left with a "how many grains make a heap" problem that is not conducive to any non-arbitrary answer. Reportedly, 11,000 persons have already registered to vote under Gov. McAullife's order
(out of over 200,000 became eligible) and now will have their registration's purged. It seems to me that Governor McAullife's next move should be just be to restore voting rights to those 11,000 (if the Court is as concerned as it claims to be regarding the fact that McAullife didn't include their individual names, I'm sure judicious use of the ol' autopen could resolve that). Would that act convert the rule into the exception? Who knows -- this opinion certainly provides no guidance on the matter. The very fact that we could get caught in this sort of infinite ping-pong match between executive and judiciary without any hints as to where the Governor's authority ends is proof positive of the radically unprincipled nature of the Court's decision.
This, alone, would make for a good reason to defer to a member of one of those democratic branches the Court recognizes ought to be the default site for these sorts of political disputes. Yet the Court shows an astonishing lack of deference to its democratically-accountable fellow. Why? Well, the Court says, apparently no other Governor has used its enfranchisement authority in this sort of sweeping, broad manner; it infers that if such a power did exist, some other Virginia Governor would have exercised it by now. It seems evident that an equally-plausible alternative explanation exists, which is that no governor until now felt particularly interested in blanket reenfranchisement. This, after all, is a decision fraught with political risk, and therefore is perfectly guarded by regular political checks. If Virginia voters find blanket voting restorations intolerable, they are welcome to make their voices known in the next gubernatorial election. This is not the sort of decision that is either benefited by nor amenable to being taken out of the political arena shunted into the judiciary.
Indeed, it strikes me that this case represents the essence
of the so-called "political questions" that Courts would be better off leaving aside for the democratic branches (here, the governor's office) to handle. In Baker v. Carr
, the Supreme Court outlined the factors which point towards a controversy being nonjusticiable as a poltical question. The first two (and in my view the most important two) are
- A textually demonstrable constitutional commitment of the issue to a coordinate political department; and
- A lack of judicially discoverable and manageable standards for resolving it.
The Virginia Constitution textually delegates the issue of felon reenfranchisement to the Governor's office, and there is no (and the Court does not even purport to provide) judicially manageable standard for administering the rule/exception doctrine the Court purports to lay out. The Court picking apart whether the Governor's "exceptions" are "exceptional" enough is precisely the sort of judicial micromanaging of an executive function that (to draw again from Baker
) "express[es] lack of the respect due [to] coordinate branches of government." Basic recognition of the limits of the judicial role, if nothing else, should have convinced the Court to keep out of this thicket. Now, it is likely stuck in a morass of its own devise. I hope that Governor McAullife uses the power that he does have -- whatever that might be, since lord knows this decision blurs things up nicely -- to at least get those persons who already tried to register back on the rolls.
Looks like McAuliffe is going to try to restore voting rights one-by-one,
if necessary. Bold move.