In Virginia, where over 350,000 people can’t vote due to past felony convictions, legal experts have said for years that the governor could allow former incarcerated felons to vote again by issuing an executive order that strikes that law. Virginia Gov. Bob McDonnell announced in January that he wanted the state’s general assembly to pass a law that would automatically restore voting rights to those with felonies. Today, a task force Attorney General Ken Cuccinelli assigned to the matter issued a report saying that neither the governor nor the general assembly have the legal power to restore former felons’ voting rights.
The governor can only restore rights on a case-by-case basis and modify the clemency process. Gov. McDonnell did that last year to accelerate the number of people whose rights were restored — 4,659 as of April 12. But the "number of Virginians convicted of felonies who apply to have their rights restored is a relatively small percentage of the total number of persons" currently disenfranchised, reads the report.
The general assembly can only restore rights by amending the state’s constitution, according to the task force, a much more difficult process that would involve passing a proposal through the entire legislature plus additional approval made by state referendum.
The task force instead recommended two alternatives to a constitutional amendment: Assign individual rights restoration application reviews to an existing state agency or create a new agency for this work; or, "augment the staff of the Secretary of the Commonwealth" for more rights restoration reviews.
The Commonwealth currently has two employees working on clemency matters , but the secretary says this staffing level is "appropriate" for timely application reviews.
The declaration that the governor can’t issue an executive order to do this automatically is a setback to civil rights organizations, many of which have built entire campaigns around pushing the governor to take this exact action. Many of them simply aren’t buying the task force’s findings.
The Virginia Constitution makes it clear that the Governor has the exclusive power to remove political disabilities from people convicted of a crime," said Judith Browne Dianis, co-director of Advancement Project. "The Virginia Code reinforces this, allowing the Governor to restore voting rights by whatever process he alone deems appropriate. Previous governors in Florida and Iowa – Republican governors, at that – have also signed executive orders for automatic rights restoration. The Attorney General’s conclusion is incorrect, and it is wrong to continue Virginia’s policy of punishing and keeping citizens politically isolated for years after paying their debt and re-entering society."
"The Committee’s findings shouldn’t halt any action by Governor Bob McDonnell to sign an executive order automatically restoring voting rights for people with felony convictions," said Tram Nguyen, deputy director of Virginia New Majority. "Gov. McDonnell called on the Legislature during his State of the Commonwealth address to pass a bill that would automatically restore voting rights for people with felony convictions. That didn’t materialize. We were hoping that today’s announcement would be a prelude to an executive order. We’re still cautiously optimistic the Governor will do the right thing, regardless of today’s outcome."
Virginia is one of only two states — the other Kentucky — that has yet to update its felony disenfranchisement laws in any substantial way since the 19th century, when it was placed. In March, a U.S. District Court in eastern Virginia allowed a legal challenge to the disenfranchisment law to move forward on the grounds that it may violate the equal protection clause of the U.S. Constitution.