Gov. Terry McAuliffe will allow more than 200,000 ex-cons in Virginia to register to vote in the upcoming presidential election, one of the biggest actions taken by a state to instantly restore voting rights.
The change applies to all felons who have completed their sentences and been released from supervised probation or parole. The Democratic governor’s decision particularly affects black residents of Virginia: 1 in 4 African Americans in the state has been permanently banned from voting because of laws restricting the rights of those with convictions.
“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. “I want you to have a job. I want you paying taxes, and you can’t be a second-class citizen.”
The governor called the instant restoration of rights to these Virginians the natural next step to his incremental streamlining of a process that has already given 18,000 nonviolent felons their rights back. With the signing of Friday’s executive order, McAuliffe eliminated the need for an application for violent felons who had completed their sentences up to that moment.
The announcement Friday immediately drew criticism from Republicans who viewed McAuliffe’s action as a blatant favor to his longtime friend Hillary Clinton, for whom he and his wife recently raised $2 million at their McLean home.
“It is hard to describe how transparent the Governor’s motives are,” House Speaker William J. Howell (R-Stafford) said in a statement. “The singular purpose of Terry McAuliffe’s governorship is to elect Hillary Clinton President of the United States. This office has always been a stepping stone to a job in Hillary Clinton’s cabinet.”
Along with restoring voting rights, the governor’s action restores the right to serve on a jury, run for office and become a notary public. The new rights also apply to felons convicted in another state and living in Virginia.
“It is a historic day for democracy in Virginia and across our nation,” said Tram Nguyen, co-executive director of the New Virginia Majority, a progressive activist group. “The disenfranchisement of people who have served their sentences was an outdated, discriminatory vestige of our nation’s Jim Crow past.”
Across the country, state laws vary on the right to vote for ex-offenders. According to the American Civil Liberties Union, about 5.85 million Americans with felony convictions (and misdemeanors in several states) cannot vote. The Sentencing Project estimates that 1 in 13 African Americans are prohibited from voting. The map below by the ACLU shows how different states handle these rules.
Three states — Kentucky, Iowa and Florida — permanently revoke voting rights for people with prior felony convictions. Virginia has also been one of those states that revoked the right to vote. But in recent years, both McAuliffe and his Republican predecessor, Robert F. McDonnell, have used their executive authority to try to restore voting rights to ex-offenders.
Republicans were particularly outraged that the policy doesn’t take into account the violence of the crime, whether the person committed serial crimes, whether they’ve committed crimes since completing their sentence or whether they’ve paid their victims back for medical bills.
“Murder victims don’t get to sit on juries but now the man that killed them will,” said Del. Robert B. Bell (R-Albemarle), who is running for attorney general. “A murder victim won’t get to vote, but the man that killed them will.”
In reaction to criticism that the timing of the announcement helps Clinton’s campaign, McAuliffe denied that the move was politically motivated and said his administration has been working on it for six to eight months.
McAuliffe, a former chairman of the Democratic National Committee and chairman of Clinton’s 2008 campaign for president, said he couldn’t say what impact the move would have on her current race for the White House.
“Honestly, I haven’t thought about it,” he said. “How many are going to vote, we have no idea. I mean literally no idea. … I did this because it was the right thing to do.
McAuliffe will have to sign an identical executive order every month for the remaining two years of his term to cover violent felons who get out of prison each month. The next governor could easily reverse the designation for future felons by ending the practice that McAuliffe began Friday. Virginia governors serve one four-year term and there’s an election in 2017.
Each state that allows ex-offenders to vote has its own process. Residents in Maine and Vermont never lose their right to vote, even if they are in prison. In 38 states and the District, most felons automatically gain the right to vote when they complete their sentence, according to the National Conference of State Legislators. In other states, they have to apply to have voting rights restored.
“This is a humongous change,” said Myrna Pérez, director of the voting rights and election project at the Brennan Center for Justice at New York University School of Law. “What this will do is move Virginia, which was among the worst of the worst in terms of disenfranchising people, to a much more middle-of-the-road policy.”
Other states have moved forward on changing their policies toward convicted felons. The Maryland General Assembly passed a law this year that will give 44,000 ex-cons the right to vote this year. Governors in Kentucky, Florida and Iowa took executive action to restore voting rights to certain ex-offenders, but those orders were rescinded after they left office.
A.E. Dick Howard, a University of Virginia legal scholar and chief draftsman of the state constitution when it was revamped in 1971, advised McAuliffe that his order is legal.
Howard said in an interview that McAuliffe’s action “buries the last ghost” of the 1902 Virginia convention that produced a constitution mandating a poll tax, literacy test and complicated registration requirements. “That convention was set out to install and defend white supremacy in Virginia, and it was incredibly effective.”
“This is really the last prop of white supremacy,” he said. In 2010, senior counsel to then-Gov. Timothy M. Kaine, a Democrat and now a U.S. senator, told him that he did not have the authority to issue blanket restoration of rights orders.
“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. And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling,” Mark Rubin wrote in a letter at the time.
Virginia is one of 11 states where ex-offenders cannot vote unless the state gives them an individual exemption, according to the Brennan Center.
In 2013, McDonnell, a former prosecutor, made sweeping changes to the process that felons had to complete to regain their rights, which in Virginia include the ability to vote, run for and hold public office, and serve on juries. His administration waived the requirement that nonviolent offenders who had completed their sentences had to wait two years before applying and streamlined the process with an online form and a toll-free information hotline.
The following year, McAuliffe picked up where McDonnell left off by reclassifying a series of serious drug crimes and by turning a 13-page document that had to be notarized into a one-page form.
Last year, McAuliffe announced that Virginia would no longer require ex-offenders to pay outstanding court costs and fees before they could vote.
“We have forced these men and women to battle a complicated and bewildering tangle of red tape to reach the voting booth, and too often we still turn them away,” McAuliffe said in June.
One previous barrier to quantifying the number of felons eligible to have their rights restored was a lack of accurate data.
Under McAuliffe, a data team at the state Department of Elections came up with a method to identify all felons who were no longer incarcerated or on probation.
Commissioner Edgardo Cortés said staff cross-checked data on felony convictions from the state police and U.S. attorneys offices against lists of current inmates from the state Department of Corrections. They ended up with 206,000 people no longer in local jails or state prisons.
No new funding or staff were needed to undertake the project, which mined data going back to the 70s, he said.
It helped, Cortés said, that the category of felons whose rights McAuliffe wanted to restore was so broad. It didn’t matter that someone hadn’t paid fines, fees and restitution or committed a violent crime. A felon is a felon under the new policy.
Cortés, who was director of rights restoration in Virginia for the Advancement Project before joining the administration, said his office is committed to expediting the registration process so “people can participate in the process even if they made a mistake.”
McAuliffe’s effort to restore voting rights in Virginia comes as residents heading to the polls in November will face rules that didn’t exist during the last presidential race. A 2013 law, signed by McDonnell, requires voters to present photo IDs at the polls. The Democratic Party of Virginia sued the state, arguing that the law makes it harder for voters who are minorities or poor. A court decision is expected in mid-May, with possible appeals before the election.
Virginia residents can check to see whether they are on the list of people with restored voting rights at this site.