RICHMOND — Virginia Attorney General Mark Herring said Friday that Gov. Terry McAuliffe acted within his constitutional authority when he restored voting rights to more than 200,000 felons.
Herring (D), acting as the state’s attorney, defended the governor’s action in a court filing in which he also objected to Republicans’ request for the Virginia Supreme Court to accelerate the timetable for a lawsuit they filed this week to stop the restoration of rights.
The legal battle is the latest showdown between the Democratic governor and his allies and the Republican-controlled General Assembly over voting rights. Republican leaders have accused McAuliffe (D) of trying to add potential voters to the rolls to bolster the presidential bid of his friend, Hillary Clinton.
McAuliffe denied any political motives and framed the order as a removal of the last vestige of laws such as poll taxes and literacy tests that disproportionately affected the voting rights of African Americans.
One in 4 African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.
In their lawsuit, House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four voters argued that McAuliffe could not legally restore rights to that many felons with one sweeping executive order.
They want the court to cancel the registrations of all felons who have signed up to vote since McAuliffe’s April 22 order.
As of Tuesday, that number was close to 5,000, according to the state Department of Elections.
But Herring said the state constitution “empowers the governor to restore rights en masse.”
If the state Supreme Court takes the case and disagrees, Herring said McAuliffe would simply issue individual restoration orders to hundreds of thousands of felons.
As to the timeline of the case, Republicans say the court must expedite it or risk permitting “thousands of constitutionally ineligible felons to vote in the November election.” That would cast doubt on the legitimacy of the election, according to the Republicans’ court filings.
Again Herring objected, saying Republicans should not be allowed to “stampede the Court into hearing the case” without giving the state more time to prepare for oral argument and write the necessary briefs.
Herring also said the lawmakers aren’t eligible to sue over McAuliffe’s order because they can’t prove they are harmed by it. The same issue came up this week when the U.S. Supreme Court denied three Republican members of Congress standing in a case involving redistricting.
Herring noted that in that case the court said the excuse that “their districts will be flooded with Democratic [or Republican] voters and their chances of reelection will accordingly be reduced” doesn’t make them eligible to sue.
Virginia is one of 11 states that bar ex-offenders from voting unless they receive individual exemptions, according to the Brennan Center for Justice at New York University Law School.
McAuliffe’s Republican predecessor, Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders.
When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action, but he opted against it on the advice of his senior counsel.
McAuliffe’s executive order restores voting rights to all felons who have completed their sentences and have been released from supervised probation or parole.
It also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights.
The administration said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.
Felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being put on a jury.