The Supreme Court of Virginia heard oral arguments around Gov. McAuliffe’s executive order which aims to reinstate the voting rights of over 200,000 felons in the state.
The Supreme Court of Virginia heard oral arguments around Gov. McAuliffe’s executive order which aims to reinstate the voting rights of over 200,000 felons in the state.
In front of a packed courtroom (an overflow room with a video feed held observers as well), Charles J. Cooper, whose law firm is representing Republican state legislators, argued that McAuliffe overstepped the authority granted to him in the state constitution by issuing the blanket order, and that rights restoration was intended to be carried out on an exceptional case-by-case basis.
Arguing for the government, Virginia Solicitor General Stuart Raphael responded that the Governor’s ability to grant clemency and re-enfranchise felons is clearly articulated in the state’s constitution. He also advised the Court not to even consider that question, claiming that the appellants, including Speaker of the House of Delegate William Howell and State Senate Majority Leader Tommy Norment, have no standing to sue.
The question of standing — whether or not the plaintiffs have been demonstrably harmed by McAuliffe’s order — was front and center, with Justice Cleo E. Powell pressing Cooper on the issue within minutes of the start of arguments.
Cooper answered that the plaintiffs have standing as legislators do not have to win elections from an illegally-designed electorate, and that more importantly, they are voters seeing their vote diluted.
Justice William C. Mims seemed skeptical, shooting back “If all are diluted equally, how are they all diluted?”
Later in the proceedings, Raphael argued that granting the plaintiffs standing would set a dangerous precedent.
“Any voter is going to be able to challenge virtually any change in election law,” he said.
The judges gave few clues as to how they would side, but Justice D. Arthur Kelsey seemed sympathetic to Cooper’s arguments, pushing back repeatedly on Raphael’s assertion that the plaintiffs had no right to sue and at one point trying to guide Cooper through a hypothetical about stop signs.
With much of Cooper’s argument being devoted to the idea that felon disenfranchisement is the general rule and that rights are supposed to be restored only after thorough review and in exceptional cases, Justice S. Bernard Goodwin may have given some hint of his feelings on the case. He asked Cooper if just because stop signs are only at some intersections, the general rule is that a driver doesn’t have to stop at an intersection.
“I think there’s a general rule that you need not stop at an intersection,” Cooper answered.
Kelsey then asked if the closer analogy wasn’t a place with stop signs at every intersection and police officers sitting at a select few, waving cars through.
“I think that changed the hypothetical,” Goodwin said to laughter in the gallery.
At issue is Article 5, Section 12 of the state constitution, which reads, “The Governor shall have power … to remove political disabilities consequent upon conviction.”
Cooper also pointed to Article 2, Section 1, which includes “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor.” Cooper emphasized the clause’s singular wording as an indication that the restoration was supposed to be done on an individual basis.
But Raphael kept returning to Article 5, arguing that it grants the Governor the ability to restore rights to as many felons as he wants.
“That power is not qualified by any language,” he said. “This court said, ‘the words of Article 12, Section 5 are unambiguous.’”
Republicans have argued that McAuliffe’s order was carried out for political purposes, to give Hillary Clinton and other Democrats an advantage in the 2016 elections. Democrats contend that it was an attempt reverse an injustice stemming from an era of widespread disenfranchisement of African-Americans.
But Raphael closed by encouraging the Court to set aside the political implications of the case, of which there are many.
“Ignore the political aspects and focus on the law,” he said.
