The Limits of Executive Clemency: How the Virginia Supreme Court Blocked the Restoration of Felons’ Political Rights in Howell v. McAuliffe

Abstract

On July 22, 2016, the Supreme Court of Virginia found Virginia Governor Terence McAuliffe’s actions restoring full political rights to 206,000 Virginians convicted of a felony unconstitutional. At the same time, the court issued a writ of mandamus ordering Commonwealth officials to remove these convicted felons from the voting rolls and return their names to the list of prohibited voters. Governor McAuliffe had restored the political rights of these released felons en masse, via a single Executive Order on April 22, 2016, eschewing the typical case-by-case review process for restoration of voting rights. The majority in the case held that the Governor’s Executive Order of April 22, 2016, along with subsequent orders, had violated article I, section 7 of the Virginia Constitution by illegally suspending the execution of laws without consent of the representatives of the people. The dissenting justices, applying a different interpretation, argued that the petitioners in the case lacked standing to pursue their claim, and that even if they had such standing, Governor McAuliffe’s actions would have been proper based on the plain reading of the Virginia Constitution. This comment argues that Justice Powell’s dissent most faithfully interprets the Virginia Constitution. It contends that given the contested nature of the historical record and the plain meaning of the constitutional language, the Virginia Supreme Court erred in finding Governor McAuliffe’s actions unconstitutional.