Virginia Gov. Terry McAuliffe speaks during a ceremony dealing with the restoration of rights at the Virginia Civil Rights memorial at the State Capitol in Richmond on Aug. 22. (Bob Brown/Richmond Times-Dispatch via Associated Press)
House Speaker Bill Howell is back before the Virginia Supreme Court seeking to have Gov. Terry McAuliffe (D) cited for contempt.
Last month, in the extraordinary case of Howell v. McAuliffe, the speaker and Senate Republican leader Thomas Norment sued the governor on the issue of restoring voting and other civil rights of those lawfully convicted of a felony.
Their lawsuit argued that the state constitution forbade the governor from restoring the rights of 206,000 disenfranchised felons in one sweeping, unprecedented executive order.
We agreed with their argument. We further admonished the governor for labeling those opposed to his position as racist.
The Constitution of Virginia seems plain enough. It says a person lawfully convicted of a felony loses the right to vote until the governor restores it in a constitutional fashion.
The Virginia Supreme Court said a constitutional manner didn’t include a sweeping executive order covering whatever people fit the governor’s criteria. Instead, the court found that the governor’s power to restore voting rights had to be exercised on a case-by-case basis.
The governor accepted, albeit bitterly, the court’s 4-3 ruling. He promised the required case-by-case review.
The speaker is now asking the Supreme Court to hold the governor in contempt for using a “sham” process that is case-by-case in form only.
The speaker claims the governor’s new process is actually a fraud on the court, with McAuliffe simply repackaging his unconstitutional universal executive order into 206,000 “individual” orders, signed pro-forma, without the type of review the Virginia Constitution demands.
The speaker’s latest filing indicates he isn’t certain of all the details of the governor’s process.
But his claim is clear enough: The governor is merely signing off without personally reviewing most if not all of the individual cases, essentially having delegated the actual review to staff.
The speaker wants the court to at least hold a hearing to make the governor reveal his process of case-by-case restoration. Howell’s motion further suggests the governor can only restore the rights of a felon who has petitioned for such restoration.
But there is no such petition requirement in the Virginia Constitution.
The speaker may have a legal point in saying the Supreme Court’s decision is meaningless if it merely said the governor has to use an auto pen 206,000 times, as opposed to once, to restore felons’ rights.
Let’s assume the speaker is correct and the Virginia Constitution can be read to require some undefined, minimal level of review.
As we understand the governor’s process, he has delegated to staff the job of reviewing each case to see if an individual felon’s circumstances satisfy the requirements of his policy.
McAuliffe believes anyone who has completed his or her sentence should get his or her voting rights back.
This is his view of the right policy for Virginia. The Virginia Constitution gives him the authority to implement it based on Howell v McAuliffe. In exercising this authority, he has delegated to staff the job of collecting facts he believes are necessary to making the right decision.
Such delegations of gubernatorial authority are normal, indeed required. The Constitution doesn’t require the governor to personally find these facts, or even apply a certain level of review.
If he delegates the authority to staff to develop the facts and provide a recommendation, this is consistent with the normal exercise of gubernatorial power.
Should he require more in restoration-of-rights cases? That’s for him to decide, not the Supreme Court of Virginia.
It wouldn’t surprise us if the court required the governor to explain his new process.
But unless it is a pure sham — a process created in defiance of law — then whatever level of fact-finding and recommendation a governor wants is his decision alone to make.
Over the years, various governors have required greater or lesser substantive review. Such matters are within their discretion.
Perhaps McAuliffe is not personally signing every restoration order. This might be bad management and an affront to the victims of violent crime.
Unless the governor has effectively delegated authority to the point of it being exercised without any input from him at all, then the choice is his alone.
Ironically, if the GOP majority in House of Delegates had not rejected a 2013 constitutional amendment Norment supported, this whole matter would be moot. McAuliffe would have lacked the power to issue 206,000 such individual orders.
It is long past time to amend the Virginia Constitution and settle this matter once and for all.