Section 12 authorizes the governor to remit fines and penalties, grant reprieves and pardons, commute capital punishments and “remove political disabilities consequent upon conviction for offenses committed.” The quoted language allows the governor to restore voting rights to felons and ex-felons.
Section 12 holds the governor to account in exercising his clemency powers. He must report to the Virginia assembly “particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting or commuting the same.”
The reporting requirement limits the governor’s power to individual cases, for he could not make the required reports if he granted blanket clemency. However, the reporting requirement does not apply to removal of voting bans or other political disabilities. Supporters of the governor could argue that this silence is a dog that doesn’t bark, suggesting that the power to restore voting rights, unlike other clemency powers, is not limited to individual cases.
Unlike a pardon or a reduction in sentence, an individual restoration of voting rights or other political disability poses no policy or public safety concerns, so there’s no need to report it to the legislature. On the other hand, one would expect the Virginia constitution to require a report from the governor if he had a power to remove political disabilities from a large group of people, for such a power would have policy implications. The lack of a reporting requirement for removal of political disabilities is indeed a dog that doesn’t bark, but the silence supports the critics of the governor’s action.
The critics have other ammunition.
It’s a rule of statutory construction that words of a feather flock together — that related provisions have the same general scope or meaning. The clemency powers in Section 12 are related provisions, listed in a series, with no textual indication that any power differs in scope from any other power. Under the rule, the power to remove political disabilities is of a feather with the other clemency powers, all of which limit the governor’s power to individual cases.
As noted, Virginia law disenfranchises felons and ex-felons. If a governor could lift these restrictions for all released felonsm he could completely nullify a law for his entire term. Such a power is not to be lightly inferred.
The nature and purpose of the voting ban for felons and released felons argues against an executive power to restore voting rights to all released felons. Under Virginia law, loss of voting rights is a punishment imposed for commission of a felony. Lifting this punishment on an individual basis in an executive function. Lifting it for all ex-felons is a legislative function.
Supporters of blanket restoration of voting rights point to the president’s pardoning power under the United States Constitution, which has been construed to allow blanket pardons. The analogy is inapt. The president’s pardoning power is absolute, limited by no constitutional provision. The governor’s clemency power is constrained by the provisions of Section 12.
The Virginia Supreme Court will determine whether or not his action is constitutional. If the court rules as it should, the governor will have to find another way to help his Democratic friends.