Eye On the General Assembly – Voters File Lawsuit Against Governor Terry McAuliffe’s Executive Order

Attorneys for General Assembly Republicans are filing suit in the Supreme Court of Virginia to halt enforcement of Governor Terry McAuliffe’s (D) order restoring the political rights of more than 206,000 convicted felons, Speaker of the House William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment, Jr. (R-James City) announced Monday.

Six Virginia voters, including Howell and Norment, are asking the Supreme Court to issue writs of mandamus and prohibition to stop the implementation of the order.  In accordance with Supreme Court rules, the petition will be filed with the Court later today, after the Respondents receive notice. To read the full filing click here.

“The Constitution of Virginia forbids this unprecedented assertion of executive authority,” the filing states. “Governor McAuliffe’s executive order defies the plain text of the Constitution, flouts the separation of powers, and has no precedent in the annals of Virginia history.  The Governor simply may not, with a stroke of the pen, unilaterally suspend and amend the Constitution.”

“Governor Terry McAuliffe exceeded the authority granted to him by the Virginia Constitution and we simply cannot ignore this unprecedented executive overreach,” said Speaker Howell.  “Along with fellow citizens, we are asking the Supreme Court of Virginia to stop the implementation of the order and any similar orders he may issue in the future. The case against the Governor’s executive order is overwhelming.  A plain reading of the Constitution, 240 years of practice, and precedent-setting Virginia Supreme Court cases lead to the unambiguous conclusion that the Governor’s order is unconstitutional and cannot stand.”

“The Governor has willfully ignored constitutional limitations on his power, demonstrating his complete and total disregard for the Commonwealth, the people of Virginia, and the principles of representative government,” Majority Leader Norment said.  “We have three separate and co-equal branches of government to serve as checks and balances to prevent abuses of power.  To fulfill the legislative branch’s constitutional duty to check the excesses of executive power, we are compelled to challenge this order.  The weight of the case against the Governor’s action is staggering, and we are confident we will prevail on the merits.”

Six Virginia voters are filing suit in the Virginia Supreme Court challenging Governor Terry McAuliffe’s executive order restoring the political rights of more than 206,000 convicted felons. The petitioners are:

  • House Speaker William J. Howell; Fredericksburg, VA
  • Senate Majority Leader Thomas K. Norment; Williamsburg, VA
  • Bill C. Cleveland; Alexandria, VA; Former Vice-Mayor
  • Marianne Gearhart; Fairfax Station, VA
  • Brett Hall; Coeburn, VA
  • Hunter Slemp; Dryden, VA

The petitioners are asking the Supreme Court to:

  1. Issue a writ of mandamus against the Governor, the Secretary of the Commonwealth, the Board of Elections and the Department of Elections commanding them to require the Commonwealth’s registrars not to register felons based on the April 22 order and to cancel all invalid registrations made since April 22.
  2. Issue a writ of prohibition against the Governor, the Secretary of the Commonwealth, the Board of Elections and the Department of Elections prohibiting them from permitting the registration of any felon based on the April 22 order.

The petitioners argue the Governor’s executive order is unconstitutional because:

  1. The Text of the Constitution Permits the Governor To Restore Voting Rights Only on an Individualized Basis
    Pages 16 – 20

Key Excerpt: “The Governor is authorized to restore the voting rights of any convicted felon through an individualized grant of clemency, but he may not issue a blanket restoration of voting rights and thus effectively suspend the Commonwealth’s general prohibition on felon voting.” (p. 17)

Supporting Case Law: “[C]onstitutional history demonstrates a cautious and incremental approach to any expansions of the executive power…” Gallagher v. Commonwealth, 284 Va. 444, 451 (2012)

  1. The Governor’s Unprecedented Order Contradicts 240 Years of Executive Branch Practice
    Pages 20 – 22

Key Excerpt: “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only. Governor McAuliffe has admitted that ‘no Virginia governor has exercised the clemency power on a categorical basis…’ COMMONWEALTH OF VIRGINIA OFFICE OF THE GOVERNOR, SUMMARY OF THE GOVERNOR’S RESTORATION OF RIGHTS ORDER DATED APRIL 22, 2016 at 2 (Apr. 22, 2016), https://goo.gl/myLmtF. This fact alone suffices to condemn his order, for often ‘the most telling indication of the severe constitutional problem with’ governmental action ‘is the lack of historical precedent for’ it. Free Enter. Fund v. PCAOB, 561 U.S. 477, 505 (2010)” (p. 20)

Supporting Case Law: “The Commonwealth itself recently argued the clemency power must be construed in light of past governors’ consistent “practice.” Blount v. Clarke, 782 S.E.2d 152, 155 (2016).” (pp. 21)

“[W]hen a gubernatorial power ‘has received only [a single] construction at the hands of successive governors, who, during many successive terms of office, and many years, have [failed to take certain actions], we are sustained by the contemporaneous construction which this charter has thus received.’” Lewis v. Whittle, 77 Va. 415, 422 (1883).” (pp. 21)

III. The Governor’s Executive Order Violates the Separation of Powers
Pages 22 – 29

Key Excerpt: “Governor McAuliffe’s executive order violates the separation-of-powers provisions and several other provisions that implement the separation… Governor McAuliffe’s executive order effectively suspends, without the consent of the People or their representatives, the voter-qualification provision of the Constitution of Virginia.” (p. 23 – 24)

“Governor McAuliffe’s assertion of executive power has no limiting principle. If Governor McAuliffe can effectively erase the general disenfranchisement provision from the Constitution for all felons who have completed their terms of incarceration and supervision, what will stop him or a future Governor from utilizing the clemency powers to restore the voting rights of all convicted felons, including those who are still serving prison sentences? Indeed, such a Governor could nullify other policies established by law or by the Constitution. A Governor who disagrees with the Commonwealth’s gun laws, for example, could issue a blanket pardon to all persons convicted of illegal possession or sale of firearms and follow up with similar monthly orders, thus effectively suspending the gun laws.” (pp. –27 – 28)

“The requirement that the Governor restore political rights on an individualized basis is not a mere formality. Rather, it is itself a component of the separation of powers. When the Chief Executive must dispense clemency on a case-by-case basis, the public and the coordinate branches may hold him accountable for his choices in the political arena.” (p. 28)

Supporting Case Law: “This separation has always been understood to be ‘one of the fundamental principles of our government,’ Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 24 (Gen. Ct. 1793) (opinion of Tucker, J.), and it remains today ‘an essential element of our constitutional system,’ Advanced Towing Co., LLC v. Fairfax Cty. Bd. of Supervisors, 280 Va. 187, 191 (2010).” (p. 23)

“The Court robustly reaffirmed these principles in 2008, unanimously holding that the separation-of-powers guarantees in Article I, Section 5 and Article III, Section 1, do not simply declare Virginia policy but also provide a private cause of action for any individual injured by executive action that treads upon the separation of powers. Gray v. Virginia Sec’y of Transp., 276 Va. 93, 106 (2008).” (p. 23)

  1. The History of the Relevant Provisions of the Constitution Makes Clear that the Governor May Not Suspend the Prohibition on Felon Voting.
    Pages 29 – 35

Key Excerpt: “The history of the relevant provisions of the Constitution of Virginia demonstrates that the Executive clemency provision was meant to be a narrow delegation of power in a system that otherwise sharply circumscribes Executive prerogatives. It therefore cannot be understood to include the power to suspend or excise the Constitution’s general provision disqualifying persons convicted of a felony from voting, or, for that matter, any other law.” (p. 29)


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