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VA Supreme Court: McAuliffe’s Voting Amnesty for Felons Unconstitutional

In a major setback to Hillary Clinton’s presidential bid, the Virginia Supreme Court held Friday that Gov. Terry McAuliffe—Clinton’s scandal-plagued ally, currently being investigated by the FBI—violated the Virginia Constitution when he granted mass amnesty to 206,000 convicted felons by allowing them to vote in the 2016 presidential election.

On Apr. 22, 2016, McAuliffe issued the first of three executive orders granting mass amnesty to convicted felons who have completed their prison time, restoring their voting rights and ability to hold public office, among other rights. Although the state’s constitution allows the governor to grant an individual a pardon or clemency, and restore that person’s rights, this power has been used on a case-by-case basis, and never on a mass-scale.

In Virginia, House Speaker William Howell, Senate Majority Leader Thomas Norment, and four registered Virginia voters sued McAuliffe, arguing that the governor was violating the Virginia Constitution. The plaintiffs are represented by Charles Cooper from Cooper & Kirk, one of the most respected constitutional lawyers and U.S. Supreme Court litigators in America, a former law clerk to William Rehnquist and former head of the U.S. Justice Department’s elite Office of Legal Counsel under President Ronald Reagan and Attorney General Edwin Meese.

The Virginia Supreme Court took the extraordinary step of bypassing the state’s lower courts, bringing Cooper’s case immediately to the state’s highest court and scheduling a special hearing on July 19.

In Howell v. McAuliffe, the Virginia Supreme Court held 4-3 that the Clinton ally’s executive orders violate the Virginia Constitution, permanently blocking the mass amnesty for felons.

McAuliffe argued that the court could not even rule on this case because the plaintiffs lacked standing to sue under Virginia law. Rejecting that argument, the court held “that each petitioner, as a Virginia registered voter planning to vote in the 2016 General Election, is directly affected by the allegedly constitutional expansion of the statewide electorate and has standing to challenge Executive Order and respondents’ registration of allegedly unqualified voters.”

This is consistent with the U.S. Supreme Court precedent holding that under federal law and the U.S. Constitution, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”

Quoting from a brief filed by former attorneys general, the Virginia court reasoned that “when a pool of voters is made larger, each carries less weight,” and therefore that allowing felons to rejoin the electorate illegally “presents a textbook claim of vote dilution.”

Turning to the merits of the case, the court noted that Article II, Section 1 of the Virginia Constitution provides, “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”

McAuliffe claims that this includes the power to give voting rights to large groups of people whom he does not even name, rather than just a “person.”

The court held that this provision must to read in a manner that is consistent with another provision of the Virginia Constitution, Article I, Section 7, which declares, “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights….”

“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,” Chief Justice Donald Lemons wrote for the court.

“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,” he added.

The court also noted that while “scores of restoration orders have been issued [by governors] for more than a century to specific felons who requested that their civil rights be restored,” each time the felon in question had petitioned the governor for relief. This is the first time that a Virginia governor acted on his own initiative, without any request.

The court declared, “The clemency power may be broad, but it is not absolute.”

The justices went on to elaborate, “This tradition reflects our belief that the ‘concerns motivating the original framers in 1776 still survive in Virginia,’ including their skeptical view of ‘the unfettered exercise of executive power.’”

When Clinton’s running mate, Sen. Tim Kaine, formerly served as governor of Virginia, he had expressed willingness to grant mass amnesty. However, as the Virginia court noted, Kaine decided against the mass amnesty when his lawyers advised him that it would violate the state constitution, because that “power could be exercised only in particular cases to named individuals for whom a specific grant of executive clemency is sought.”

Embarrassing for McAuliffe here, Kaine’s lawyers characterized such as move as rewriting the constitution by fiat, concluding that the “notion that the Constitution of the Commonwealth would be rewritten via executive order is troubling.”

The Virginia court went on to note that several attempts have been made to amend the Virginia Constitution along these lines of McAuliffe’s actions to restore voting rights after a felon’s prison time has been fully served, but those attempts have been rejected.

The case is of enormous importance to the 2016 presidential election. Political analysts say that convicted felons vote overwhelmingly for Democrats over Republicans. These 206,000 registered voters could have boosted Clinton’s vote share in the Old Dominion by over four percent.

With Kaine on the ballot, Virginia becomes a must-win state for Clinton to ascend to the presidency. McAuliffe’s defeat at the hands of Cooper on Friday makes it harder for Clinton to return to the White House next January.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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