I agree with the many good folks who believe that “Virginia’s Felony Disenfranchisement Laws”, as some call them, should be repealed.
I applaud those who devised an exceptionally creative argument and sought to achieve that goal, at least with respect to individuals who have been convicted of felonies in the past and have served their sentences to completion.
My admiration for their passion and creativity is not lessened by the fact that their legal argument, advocating use of a blanket Executive Order rather than the traditional exercise of the Governor’s Executive Clemency power, fails on not one, but two, levels.
First, there is the “devil’s in the details” level.
Like it or not, the denial of voting rights to felons is contained in the Virginia Constitution (Art. II, Sec. 1).
The process by which those rights may be restored is provided for in Article V, Section 12 (Executive Clemency) which states, in part, “[t]he Governor shall have the power . . . to remove political disabilities consequent upon conviction for offenses . . . .”
The second paragraph of Section 12 requires that the Governor:
shall communicate to the General Assemble, at each regular session, particulars of every case [emphasis added] of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.
Some argue that the omission of the words “political disability removed” from the litany of items about which the Governor must “communicate” permits a Governor to exercise his or her powers of Executive Clemency with respect to removing political disabilities in a much broader way than with respect to remitting fines, granting pardons or commuting sentences. Such argument is at odds both with long practice and the framework of Article V, Section 12 taken as a whole.
Putting it bluntly, the use of an Executive Order rather than a case-by-case consideration to remove political disabilities would be an unprecedented expansion of executive authority. Such an expansion was not envisioned by the Commission on Constitutional Revision that resulted in the Virginia Constitution of 1971. Indeed, it is difficult even to point to an “emanation from a penumbra” that would contemplate such a novel interpretation.
Which brings us to the “be careful what you wish for” level.
I do not believe that the immediate past Governor of the Commonwealth had the authority to rewrite provisions of the Virginia Constitution by Executive Order, no matter how meritorious the objectives.
Nor do I believe that the immediate past President of the United States had the legal authority to abrogate provisions of the United States Constitution by Executive Order.
Consistency may be the hobgoblin of small minds; but, in this instance, I’m just going to have to accept a haunting.
Beyond the legal reasoning, there is the overheated rhetoric with which some proponents of the executive order idea have savaged Governor Kaine. Here, my admiration for them lags.
Kaine and his excellent counsel, Mark Rubin, appear to have analyzed the idea carefully. Their legal analysis concluded that the proposal was impermissible under the Constitution and statutes of the Commonwealth. Having known both gentlemen for longer than I care to admit, I have no doubt that their analysis was comprehensive and that their conclusion was sincere.
While we are often harder on our friends and allies than on our opponents, the vituperation with which some have assailed Kaine is both unbecoming and excessive.
I’m not usually one for sports metaphors, but in this instance one applies.
Your Hail Mary pass didn’t score. It’s time to get to work on 3 yards and a cloud of dust.
Jim Severt is a former Assistant Attorney General of Virginia.
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