How Two New Court Rulings Are Impacting the November Election

By Hans von Spakovsky

The same week that Republicans were formally nominating their 2016 presidential candidate in Cleveland, two different courts issued decisions, one positive and one negative, that may affect the security and integrity of the November election in Virginia and Texas. The Virginia case threw out the blanket restoration of felon voting rights, while the Texas case found that the state’s voter ID law violates the Voting Rights Act.

On July 22 in Howell v. McAuliffe, the Virginia State Supreme Court ruled four to three that Governor Terry McAuliffe had acted outside of his constitutional authority (sounds like Obama) when he granted a blanket restoration of voting rights to 206,000 felons, of whom over 11,000 have already registered to vote.

A group of state Republican Virginia legislators led by Speaker of the Virginia House of Delegates William J. Howell, as well as some registered voters, challenged the executive order McAuliffe issued on April 22. The court said that order inverted the constitutional rule in Virginia. According to the court, the Virginia constitution sets out the rule that no one “who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor.” But McAuliffe changed this “rule-exception sequence” to reframe this constitutional provision to instead say that no one “who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of supervised release.”

The court was faced with the question of whether the governor had suspended the “general principle of voter disqualification” in the Virginia constitution and replaced it “with a new voter qualification that has not received the ‘consent of the representatives of the people.'” In deciding that question against McAuliffe, the court was guided by the “backdrop of history.”

As the court said:

“Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind – including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.”