RICHMOND — Virginia Republicans have hired a high-powered Washington lawyer to challenge Gov. Terry McAuliffe’s authority to give more than 200,000 ex-convicts the right to vote in the fall presidential election and beyond.
GOP legislative leaders announced Monday that they have retained Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan. Republicans said they are paying Cooper with private and political funds, not taxpayer money.
“Governor McAuliffe’s flagrant disregard for the Constitution of Virginia and the rule of law must not go unchecked,” Senate Majority Leader Thomas K. Norment Jr. (R-James City) said in a written statement. “We have retained Mr. Cooper to examine the legal options to remedy this Washington-style overreach by the executive branch.”
Brian Coy, a spokesman for McAuliffe (D), said the governor was acting under the authority of the Virginia’s Constitution. It gives the governor power to grant various forms of executive clemency, including removal of “political disabilities consequent upon conviction.”
“The Governor is disappointed that Republicans would go to such lengths to continue locking people who have served their time out of their democracy,” Coy said in an email. “While Republicans may have found a Washington lawyer for their political lawsuit, they still have yet to articulate any specific constitutional objections to the Governor exercising a power that Article V Section 12 [of the state constitution] clearly grants him. These Virginians are qualified to vote and they deserve a voice, not more partisan schemes to disenfranchise them.”
Late last month, McAuliffe issued an executive order restoring voting rights to all felons who have completed their sentences and been released from supervised probation or parole. The order also restores their right to serve on juries and run for public office. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point that has particularly incensed Republicans.
McAuliffe has said that the move will advance civil rights and help reintegrate former convicts.
“Once you have served your time and you’ve finished up your supervised parole . . . I want you back as a full citizen of the commonwealth,” McAuliffe said when announcing his order. “I want you to have a job. I want you paying taxes, and you can’t be a second-class citizen.”
Republican critics have called it a political favor to one of McAuliffe’s closest friends and allies, Democratic presidential front-runner Hillary Clinton, who could benefit from higher numbers of minority voters. One in four African Americans in the swing state had been banned from voting because of laws restricting the rights of those with convictions.
“Governor McAuliffe adopted an unprecedented view of executive authority and exceeded the powers granted to him by the Constitution of Virginia when he issued the order restoring the rights of more than 200,000 convicted felons,” House Speaker William J. Howell (R-Stafford) said in a written statement. “It is the obligation of the legislative and judicial branches to serve as a check on overreaches of executive power. To that end, we are prepared to uphold the Constitution of Virginia and the rule of law by challenging Governor McAuliffe’s order in court.”
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 predecessor, Robert F. McDonnell (R), made sweeping changes to simplify and speed the application process for nonviolent offenders but stopped short of a blanket restoration.
McDonnell’s predecessor, Democrat Timothy M. Kaine, who left office in early 2010 and now serves as a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin.
“A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”
Norment appeared to refer to that analysis in his statement announcing Cooper’s hiring.
“His predecessors and previous attorneys general examined this issue and consistently concluded Virginia’s governor does not have the power to issue blanket restorations,” Norment said. “By doing so now with the acknowledged goal of affecting the November election, he has overstepped the bounds of his authority and the constitutional limits on executive powers.”
Cooper is chairman of Washington-based Cooper & Kirk. He was a law clerk to then-Supreme Court Justice (and later Chief Justice) William H. Rehnquist. In 1985, Reagan appointed him assistant attorney general in the Office of Legal Counsel.
Cooper’s work for the Reagan administration put him in the middle of hot-button legal issues of the day. In one of his more public and controversial legal opinions back then, Cooper argued that employers may fire people with AIDS because of fear that the disease may be contagious, even if that fear is irrational. He also was part of a small team that helped Rehnquist through highly contentious Senate hearings ahead of his elevation to chief justice.