History, Va. Constitution the focus in Tuesday Supreme Court hearing
By Travis Fain, Daily Press – 7/18/2016
RICHMOND – Tuesday’s special session of the Virginia Supreme Court will be historic, pitting state legislative leaders against the governor in a battle over the limits of executive power.
This will be the court’s first special session in 23 years. Justices decided to add the hearing date because of the time sensitive nature of this case, and they’ll be deciding whether more than 200,000 Virginians will be eligible to vote in the November presidential election.
The case boils down to a battle over the state constitution, and how much power it grants Virginia’s governor to restore civil rights. Republican majority leaders want to overturn Gov. Terry McAuliffe’s decision to use a mass executive order to return voting rights to felons who’ve completed their sentences, instead of using the case-by-case review past governors relied on.
The unusual request from General Assembly leadership – to have the judiciary rein in the executive branch – presents a number of procedural questions that may mean an uphill climb in this case for Speaker of the House William Howell and Senate Majority Leader Thomas K. “Tommy” Norment.
“I think it’s more likely than not that the court will decide the case on a procedural grounds rather than on the merits,” said Steven Emmert, an appeals attorney in Virginia Beach.
Emmert said he plans to get a hotel room in Richmond Monday night to make sure he’s on hand early at what will likely be a courtroom packed full of attorneys, reporters and onlookers. He said the court’s seven justices will have to decide a number of questions in Howell and Norment’s favor before turning their attention to the main question of this case: who’s got the proper reading of the Virginia Constitution.
“What John Q. Public would call a technicality, but we would call the rule of law,” Emmert said. “It’s going to be difficult to convince the court to undo something that the governor has already done. … I don’t know of any, any precedent, to order the governor to stop exceeding his authority.”
Republicans, though, see the fact that the Supreme Court took the case on an expedited schedule as a good sign. They believe the constitution limits McAuliffe’s power to restore rights, even though the document does not explicitly say so.
“It is unmistakably clear from the text, structure, and history of the constitution’s clemency provisions, as well as the unbroken practice of all 71 previous Virginia governors, that the governor may exercise his clemency powers, including his power to restore voting rights, only on an individualized, case-by-case basis,” GOP attorneys argued in their most recent brief before the court.
The use of singular nouns and pronouns in the constitution’s section on clemency powers suggests, as Attorney General Ken Cuccinelli concluded when this question came up in 2013, that “the restoration power is only exercisable on an individualized basis,” attorneys wrote.
Attorney General Mark Herring’s office, which is defending the governor in this suit, said that argument would “throw a wrecking ball at other constitutional protections,” since various sections of the law also use singular, and solely masculine, pronouns.
McAuliffe’s lawyers key in on constitutional language that gives the governor authority “to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution,” calling this text “unqualified” and saying it “commits the restoration-of-rights power solely to the Governor’s discretion.”
In briefs, the two sides go back and forth debating finer points of law and Virginia history back to the 1700’s, discussing various clemencies granted by U.S. presidents and Virginia lawmakers responses to them as the state constitution was redrafted over the centuries.
McAuliffe’s side says the disenfranchisement of felons is a vestige of Jim Crow laws meant to limit black people’s participation in Democracy, and the NAACP filed an amicus brief in this case backing that argument. Howell and Norment insist race has nothing to do with the case, noting that the 1971 rewrite of the state constitution removed discriminatory features, including a poll tax, but left felon disenfranchisement in place.
Law professor A.E. Dick Howard was part of that rewrite, and he has also signed onto an amicus brief in this case, siding with the governor in arguing that the constitutional allows him to restore rights en masse.
McAuliffe’s order restored not just the right to vote, but the right to serve on a jury, and commonwealth’s attorneys have filed briefs on both sides of this case. Locally, Hampton Commonwealth’s Attorney Anton Bell sided with McAuliffe.
McAuliffe’s order is also a first step toward felons getting back the right to own a gun, but a judge must sign off before that right is restored.
Oral arguments in this case are slated for Tuesday morning, but it’s difficult to say how quickly the Supreme Court will rule.
Virginia judges, including those on the Supreme Court, are elected by the General Assembly, and the GOP majority removed Justice Jane Roush from the bench earlier this year. McAuliffe had appointed Roush while the legislature was out of session, and the General Assembly replaced her with Justice Stephen McCullough.
Kevin Martingayle, immediate past president of the Virginia State Bar, said he doesn’t think the legislature’s power over the court will be a factor in the case.
“I’ve never had the sense that our Supreme Court spends a lot of time looking over its shoulder,” he said.