By Wendy Underhill
Virginia Governor Terry McAuliffe announced an executive order last week automatically restoring voting rights to convicted felons who have completed their prison sentence and their term of supervised release as of April 22.
(A bit of context: Whether felons should have the right to vote is a perennial legislative topic, with the trend over many years moving toward “yes.” See NCSL’s elections newsletter, The Canvass, for more.)
The Washington Post called the governor’s move “one of the biggest actions taken by a state to instantly restore voting rights.” Big? I’m not so sure. Thirty-eight states provide automatic restoration of a felon’s voting rights. That means Virginia is hardly breaking new terrain—and it’s worth noting that the governor’s action does not make restoration automatic in the future.
More important: This is a story about struggles between the executive branch and the legislature.
McAuliffe, a Democrat, serves in a state where Republicans control both legislative chambers, and in issuing his order he sidestepped the legislature’s role. In the words of Virginia’s Speaker of the House, William Howell: “I am stunned yet not at all surprised by the governor’s action. I am stunned at his broad and unprecedented view of executive power, which directly contradicts how past governors have interpreted their clemency powers, and I am stunned at his willingness to restore the rights of the most heinous criminals without batting an eye.”
Most of the commentary has been based not on the balance of power, but on personal views. They don’t get any more personal than this email NCSL received from an ex-felon in Virginia that was in my inbox yesterday: “How can I find out if my name is among those who had rights restored? This is a Great Time, and God Bless our Governor, and his administration.”
My correspondent is in line with the thinking of groups such as Revive My Vote, The Sentencing Project and the Restoration of Rights Project, which see restoring voting rights as good for democracy and good for re-engaging ex-felons in their communities.
Others, such as Hans von Spakovsky of the Heritage Foundation, say the governor’s move may be unconstitutional: “What McAuliffe entirely dismisses is the principle that if you won’t follow the law yourself, you can’t demand a role in making the law for everyone else, which is what you do when you vote. Restoring a felon’s right to vote should be done not automatically, as soon as he has completed his sentence, but carefully, on a case-by-case basis, after he has shown that he has really turned over a new leaf. “
And politicians of either stripe may see this through a political lens: How many new voters will this add to the rolls in a swing state, and how might they vote? More than 200,000 Virginians who were prohibited to register to vote now will be permitted to do so. Whether they vote remains to be seen.
Wendy Underhill is the program director for elections and redistricting at NCSL.
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