Executive power appears to be on the march right now, so it’s great to see the Virginia Supreme Court standing up for the rule of law.
Last week the Virginia Supreme Court struck down an attempt by Terry McAuliffe, the governor of Virginia, to grant blanket restoration of voting rights to the more than 200,000 felons convicted under state law. The Virginia Supreme Court’s opinionobliterates Governor McAuliffe’s interpretation of Article V, Section 12 of the Virginia Constitution, holding that he illegally suspended the law and rejecting his claim to have found previously-undiscovered meaning in the clemency provision.
McAuliffe’s order was truly shocking in its scope. As the court points out, “the Executive Orders identify none of the 206,000 felons by name, and, to date, Governor McAuliffe has withheld the administration’s list of felons whose [voting] rights were restored under the Executive Orders.” (internal quotation omitted). And, as the New York Times has reported, the rosters of affected felons that were circulated to county officials included fugitives from justice, felons imprisoned in other states, and others who were not supposed to be covered. Oops.
A few passages deserve special attention. One discusses the scope of McAuliffe’s unprecedented order, dryly noting the “uninterrupted disuse of governmental power” by literally every other Virginia governor:
Never before, however, have any of the prior 71 Virginia Governors issued a sua sponte clemency order of any kind, whether to restore civil rights or grant a pardon, to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. What is more, we are aware of no point in the history of the Commonwealth that any Governor has even asserted the power to issue such an order.
Next, the Court rejects McAuliffe’s attempt to discern previously-undiscovered meaning in the text of the Virginia Constitution:
Governor McAuliffe . . . argues that the literal text of Article V, Section 12 clearly shows that his 71 predecessors failed to appreciate the unlimited nature of their executive powers in such matters. From reading only the constitutional text, the Governor contends, we should conclude that it “plainly authorizes the group restoration of-rights at issue here.” He also sees in the same provision the implicit authority of a Virginia Governor to issue “blanket” class-based pardons and amnesties similar to those issued by U.S. Presidents.
We find this textual argument to be overstated at best. The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons.
Professor Philip Hamburger’s landmark book Is Administrative Law Unlawful? makes an appearance. Also notable are footnote 10, which rejects the Governor’s attempt to borrow executive power from the President of the United States, and the historical discussion of Virginia’s anti-suspension provision (pages 22-27).
As the Wall Street Journal aptly put it last week (paywall), “Mr. McAuliffe’s power grab was a cynical maneuver to pad Virginia’s Democratic voter rolls to assist Mrs. [Hillary] Clinton. His willingness to violate the state’s history, constitution and separation of powers for a partisan end deserved the legal rebuke it has now received.”
This decision won’t be the end of the issue – McAuliffe has declared his intention to try again – but it’s a small victory in what may turn out to be one of the most significant battles in Virginia’s recent legal history.