The Wall Street Journal’s editorial board criticized Virginia Gov. Terry McAuliffe for continuing his effort to restore voting rights to former felons, echoing an unfounded Virginia GOP claim that McAuliffe, a Democrat, “is acting in contempt of the court that has rebuked him.”
On April 22, McAuliffe issued an order restoring voting rights to approximately 206,000 Virginians who lost them due to prior felony convictions. Nearly 13,000 Virginians subsequently registered to vote. But the speaker of the Virginia House of Delegates, William Howell, filed a lawsuit against McAuliffe seeking to stop the restoration of rights to this group of people, arguing the governor did not use his authority properly. The Virginia Supreme Court agreed, halting McAuliffe’s executive action and bumping those who had registered off the voting rolls.
After the state Supreme Court ruled, McAuliffe again began restoring voting rights to former felons, but on a case-by-case basis, which the court had specifically suggested as an acceptable alternative. As explained by the governor’s office, “While it is our position that the Governor’s April 22nd action was clearly constitutional by any reasonable standard, he will proceed with individual restorations in accordance with the Virginia Supreme Court’s order and the precedent of governors before him.”
But the Journal still took issue with the latest round of restorations in a August 12 editorial, baselessly suggesting that McAuliffe “is acting in contempt of the court that has rebuked him” and claiming that if McAuliffe “gets away with” restoring voting rights, we would be “well down the road to tyranny”:
President Obama has charted new levels of executive defiance, but even he hasn’t refused to obey a Supreme Court ruling. Virginia Governor Terry McAuliffe has sought to follow Mr. Obama’s executive hubris, and now he’s gone further and is acting in contempt of the court that has rebuked him.
In July the Virginia Supreme Court struck down his executive order restoring voting rights to 206,000 felons. Under Virginia law the Governor can grant clemency on an individual basis. But the justices wrote that “Governor McAuliffe’s assertion of ‘absolute’ power to issue his executive order” runs “afoul of the separation-of-powers principle” in the Virginia constitution. The individual clemency power, the court admonished, “does not mean he can effectively rewrite the general rule of law.”
The Democratic Governor claims he is restoring these voting rights by the thousands on an “individual” basis. And he says he plans to do so for all of the more than 200,000 remaining felons by the time his term ends.
This is contempt of both the court and the legislature, or what is known as the “suspension” of a law simply because an executive disagrees with it. This is why the Founders wrote the Constitution to protect against such actions by kings, and Virginia Republicans have now gone to court again to stop him. Their filing last week, submitted by former U.S. Assistant Attorney General Chuck Cooper, argues that Mr. McAuliffe’s mass restoration orders “have precisely the same scope, precisely the same effect, and accomplish precisely the same unconstitutional suspension of Virginia’s felon-disenfranchisement law.”
The Journal provides no proof that McAuliffe is violating any court order or not evaluating the restorations on a case-to-case basis as his office described, a process which the Journal explicitly admits is legal under Virginia law, noting that the “Governor can grant clemency on an individual basis.” As McAuliffe’s court filing explains, voting rights were individually restored to “most but not all of the [12,521] people who had previously registered” and to “an additional 6,957 persons, all of whom had requested to have their rights restored, and he did so, again, through individualized orders after a case-by-case review process.” This procedure follows the guidance of the court, which found such an individualized review to be unobjectionable, affirming that “the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis.”
The Journal is no friend to expanded voting rights, especially when the denial of rights disproportionately harms minorities, as barring former felons from voting does. Its opinion pages have argued against the restoration of the Voting Rights Act and for restrictive Voter ID laws.
And that background makes the Journal’s hostility to McAuliffe’s actions unsurprising. The denial of voting rights for felons has long had a disproportionately negative impact on African-Americans in Virginia. As Erika Wood, the former deputy director at the Brennan Center for Justice, explained in a 2010 Richmond Times Dispatch op-ed, “There is ample evidence in the historical record that” the law denying former felons the right to vote “is firmly rooted in Jim Crow, and its intended effects continue today,” when “one in every six African Americans in Virginia, and one in four African-American men, is permanently disenfranchised under this law. African Americans make up only one fifth of Virginia’s population, but over half of those are disenfranchised.”