RICHMOND — State officials abruptly removed 132 sex offenders from Virginia’s list of eligible voters last week, reacting to the latest problem emerging from Gov. Terry McAuliffe’s sweeping move to restore voting rights to felons who had served out their sentences.
A spokesman for McAuliffe (D) said that the offenders, who are confined in a treatment facility under a form of civil commitment, had appeared on the list of eligible voters by mistake.
“Those folks should not have been on the list, and they are not there now,” spokesman Brian Coy said.
A local prosecutor contends there was no mistake. She says state officials changed the records to try to hide a politically awkward accident — that McAuliffe inadvertently restored voting rights to some of Virginia’s worst sexual predators.
“This is a cover-up, plain and simple,” Nottoway County Commonwealth’s Attorney Terry J. Royall said. “They’ve cleaned up the database.”
With an executive order in April, McAuliffe restored voting and other civil rights to more than 200,000 felons who had completed their terms of incarceration or “supervised release, including probation and parole.”
A string of troubles followed the decision, including revelations that McAuliffe had mistakenly restored voting rights to several violent felons still in prison. Republican legislative leaders filed a lawsuit claiming that McAuliffe lacked the legal authority to grant clemency en masse. And 43 Republican, Democratic and independent commonwealth’s attorneys weighed in against the governor with an amicus brief filed Friday.
Royall, an independent, raised yet another issue. She said McAuliffe’s order covered 132 sex offenders who have completed their criminal sentences but remain locked up because they have been deemed too dangerous to release. They have been committed, through civil court proceedings, to the Virginia Center for Behavioral Rehabilitation in Nottoway County, about an hour’s drive southwest of Richmond.
McAuliffe spokeswoman Christina Nuckols said Wednesday that the governor’s order does not cover the center’s residents because the “24/7 supervision” they get at the facility amounts to the “supervised release” that the governor’s order says must be completed before voting rights are restored.
Yet two national experts on civil confinement — Charles P. Ewing, author of “Justice Perverted,” and Eric Janus, author of “Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State” — disputed the notion that it can be considered “supervised release” in the legal meaning of the term. The civil commitment system, they said, is based on the premise that it is not an extension of the sex offenders’ criminal sentences.
“These men are not being held in criminal confinement,” said Ewing, a law professor at the State University of New York at Buffalo.
Janus, a professor at the Mitchell Hamline School of Law in St. Paul, Minn., said considering those in civil commitment to be in supervised release would be “totally inconsistent with what the states have claimed about civil commitment all along.”
Also pushing back against the governor’s stance was Rep. H. Morgan Griffith (R-Va.), who as a state delegate in 2003 sponsored a bill that created Virginia’s civil commitment system.
“We made it very clear that this was not a criminal process,” he said.
But the governor’s office reiterated its position Friday, with support from Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union’s Virginia affiliate. She agreed that “supervised release,” as the term is used in the executive order, “should be read to include any supervised release from prison and not just probation or parole.”
Coy, McAuliffe’s spokesman, said the order is the governor’s, and his administration’s understanding of it all boils down to a simple question: “Have you been released or are you being supervised? And in this case, these folks clearly meet that definition of the term.”
But Janus warned that the courts, not the administration, could ultimately decide how to interpret the governor’s order.
“They expose themselves to a lawsuit about taking away the right to vote and maybe even the underlying validity of the civil commitment system,” he said.
The latest twist to the rights-restoration saga began Wednesday, when Royall asked the facility’s director if any of the residents’ rights had been restored under McAuliffe’s order.
She said the matter was of interest in her small, rural community, where the addition of more than 100 new voters could be enough to swing local elections. In the Nottoway district that is home to the center, the winner of the last contested school board race drew just 358 votes, she said.
“We entered resident information into the database,” VCBR director Jason Wilson replied to Royall in an email late Wednesday afternoon. “As far as we can tell, we have approximately 132 residents that come up as having their rights restored.”
After McAuliffe’s office learned about that response, Wilson emailed Royall to take that number back, saying that an “issue with them came up.” Wilson declined to comment.
“None of them had their rights restored, plain and simple,” Nuckols, McAuliffe’s spokeswoman, said Wednesday.
On Friday, Coy acknowledged that the sex offenders had been listed as eligible voters but said that had been in error — one he attributed to the fact that the offenders are at a facility run by the Department of Behavioral Health and Developmental Services, not the Department of Corrections.
“There was a data set missing from our data,” he said. “This was a data set that was housed in another agency. . . . As soon as we heard about it, we reacted and fixed the problems.”