Yesterday, a task force commissioned by Virginia Attorney General Ken Cuccinelli found no legal basis for either the governor or the general assembly to automatically restore the voting rights of former convicted felons, but the governor found a way to do it anyway. This morning, Gov. Bob McDonnell announced that he would lift the permanent civil rights ban for those convicted of nonviolent felonies, but he'd have to do it on a case-by-case basis. This means, for the thousands who currently can't vote (or run for office) due to a nonviolent felony on their criminal record, the governor will send a letter to each person he can find telling them their rights are restored. Before this, a person with a nonviolent felony had a two-year wait after release from prison to begin an application process that might lead to their rights restored within 60 days of submitting that application. Those with violent or drug felony convictions will still have to wait five years to apply for rights restoration.
According to Rebecca Green, co-director of the Election Law Program at William and Mary Law School in Virginia, the fact that the governor can simply write a letter to individuals to restore rights shows that his powers are expansive enough that he should be able to provide automatic rights restoration, while the fact that those with violent and drug felonies still have to wait and apply shows there continues to be a lack of due process.
"In a world where the governor could literally flip a coin to determine whose rights are restored and whose aren't, I don't understand why he then couldn't issue blanket restoration for all rights," says Green. Yet, if McDonnell did attempt a blanket restoration, "he would be doing what the [task force said the] legislature can't do, which is change the law."
The task force's findings that the governor can't do sweeping restoration is an "odd argument given the broad authority the Virginia Constitution delegates to the governor to restore rights," says Green. Green helped prepare an amicus brief in a U.S. District Court case where former Richmond city councilmember Sa'ad El-Amin is suing the state to overturn the felony disenfranchisement law on the basis it has racist origins. A federal judge is allowing for that racial history to be explored to determine if the law is, in fact, unconstitutional on equal protection grounds.
The irony here is that El-Amin may now no longer have standing in that case. El-Amin himself has a nonviolent felony conviction, for tax crimes, which invalidated his voting rights. He is legally challenging the disenfranchisment law, but he never himself applied for restoration of his rights. Now he doesn't need to. The governor will be sending him a letter telling him his rights are now restored, which might affect his standing.
Indeed, finding every person in the state with a nonviolent felony to send a letter too will be tough for the governor. As Secretary of the Commonewealth Janet Kelly told the Richmond Times-Dispatch:
"If you're sitting in prison right now, we know where you are," Kelly said. "If you got out of prison 20 years ago, we don't know where you are."
Overall, roughly 350,000 people lack voting rights due to felony convictions in the state. A report from the NAACP on felony disenfranchisement in Virginia says that if the governor had to review an application from every disenfranchised person it would take him 51 years to get through them all. That application review is now gone for nonviolent felons, but stay tuned to see how this affects those with violent felonies.
UPDATE (1:03 P.M. EST)
From civil rights community law organizing nonprofit Advancement Project:
Following the Governor's announcement, Secretary of the Commonwealth Janet Kelly is meeting this afternoon with Virginia grassroots rights restoration advocates and national civil rights organizations, including Advancement Project, to discuss implementation.
"We commend Gov. McDonnell for doing what his predecessors would not - taking an executive action to loosen Virginia's grip on its antiquated felony disenfranchisement law," said Advancement Project Co-Director Judith Browne Dianis. "We are interested in hearing his implementation plan for re-enfranchising as many people as possible, as quickly as possible. While today's announcement represents a positive step forward, Virginia still needs a more permanent solution through a Constitutional amendment from the General Assembly to automatically restore civil rights for all citizens who have served their time. We hope to build on this development in order to move Virginia fully toward America's promise of a robust and inclusive democracy."
Many grassroots advocates, several of whom have been personally impacted because of prior felony convictions, are also attending this afternoon's stakeholder meeting with the Governor's office.
"I appreciate today's announcement and hope that Gov. McDonnell will use the full extent of this executive action to restore rights to as many people as possible," said Michael Edwards, founder and director of Secure Organization Building Educational Recovery, Inc. (S.O.B.E.R.). Edwards lost his right to vote for distribution of marijuana in the 1970s, before finally having his rights restored in 2011. "Since the new rules make a distinction for people with certain kinds of convictions, I'd like to see some other process in place to more efficiently re-enfranchise these individuals who pay taxes and live in our communities."
UPDATE (10:10 A.M. EST):
Virginia New Majority, a non-profit that organizes community and conducts leadership development programs for progressive causes, is planning a major voter registration drive on the heels of Governor Bob McDonnell's planned announcement to streamline the rights restoration process for people with non-violent felony convictions.
"Gov. McDonnell is taking a huge step forward today. We've been actively working on this issue for the past four years. It's a huge milestone for us," said Tram Nguyen, Deputy Director of Virginia New Majority.
"We're going to celebrate today, but we have to get right back to work tomorrow. We're making plans to ensure that people with non-violent felony convictions will be registered in time for the November elections," said Jon Liss, Executive Director of Virginia New Majority. "We don't know how many people will be impacted by the Governor's decision, but we think it will be in the thousands."
Virginia New Majority is meeting with the Governor and other advocacy groups following the press conference to finetune the new rights restoration process. The state-based civil rights group also intends to continue its push for a permanent solution that would automatically restore voting rights for everyone who has a felony conviction.