As the plaintiff in a law suit I filed in the United States District Court challenging the disenfranchisement of persons convicted of felonies in Virginia, in which Governor McDonnell is the principal defendant, I feel compelled to comment on McDonnell’s recent request to the General Assembly to pass legislation for automatic restoration of the voting rights of persons convicted of nonviolent felonies.District Court Judge John Gibney has scheduled to hear oral arguments on this case on Friday, February 1, 2013 at 9:30 AM.
I think that McDonnell’s legislative request is politically motivated rather than a sincere gesture to correct the long and shameful history of Virginia’s disenfranchisement of the African American vote by all manner and methods, including violence and intimidation. McDonnell is painfully aware of the potential for Virginia to lose this lawsuit which is why he is trying to score some political points by appearing to favor automatic reinstatement rather than being forced to do so as a consequence of losing the lawsuit.
I have presented to the Court irrefutable evidence of Virginia’s history of disenfranchising the African-American vote beginning with Virginia’s 1869 Constitutional Convention. This history puts Virginia in the precise legal position that Alabama found itself which was on the losing side of a 1985 United States Supreme Court case, Hunter v. Underwood. (See my website, restoremyvotingrights.com for all of the proceedings in the case including the Hunter case).
Prior to the lawsuit, there was little or no political interest in automatic restoration by either McDonnell or the General Assembly. In fact, every effort of the Virginia’s Legislative Black Caucus to achieve automatic restoration was scuttled by the General Assembly. The most recent rebuff occurred with a bill patroned by the late Senator Yvonne B. Miller (D) - Senate District 5, 2012, SJ 35. This was a Constitutional amendment seeking restoration of civil rights to persons convicted of nonviolent felonies.
The proposed bill had an ignominious end after it was referred to the Senate Committee on Privileges and Elections that continued it to the same committee during the 2013 legislative session. It is interesting to note that McDonnell made no reference to this tabled bill in his remarks leading up to his restoration of rights announcement.
Prior to my lawsuit, McDonnell was satisfied in taking bows for his restoration of rights procedure which required exfelons to apply to him for the restoration of their rights. He bragged to all who would listen that he had restored more rights than any previous governor, pointing directly to Virginia’s last two governors who were Democrats.
The Virginia Constitution gives the governor complete and sole authority over voting rights restoration which means that at any point in his tenure, McDonnell could have issued an executive order to accomplish the very thing that he now claims that he wants by legislation.
If McDonnell were serious about restoration, he would issue an interim executive order which would be superseded if the General Assembly approves his legislative initiative. This would greatly expedite the process and lend credence to his words.
I am not in favor of McDonnell’s current proposal because it does not provide for the restoration of the rights of all persons who have been convicted of a felony no matter the kind or type of felony. I believe that the treatment difference between violent and nonviolent felonies has already been taken into account by the length of sentence. Once a person serves his or her sentence, there should be no distinction in the restoration of rights process. McDonnell’s proposal to use the type of crime as the differentiating factor to automatic restoration makes disenfranchisement more akin to punishment than a public policy bar.
McDonnell’s comments prefacing his statement of his desire for an automatic restoration of rights may also come back to haunt him. It is reported he said:
While we have significantly improved and fast-tracked the restoration of civil rights process, it’s still an executive process. As a nation that believes in redemption and second chances, we must provide a clear path for willing individuals to be productive members of society once they have served their sentences and paid their fines and restitution. It is time for Virginia to join most of the other states and make the restoration of civil rights an automatic process for nonviolent offenders
This statement fully supports one of my claims in the lawsuit, that lifetime disenfranchisement for a felony conviction is a violation of the Eighth Amendment’s “Evolving Standards of Decency”. In the suit, I argue that Virginia is out of step with the rest of the United States. Governor McDonnell remarks support this claim. I will forward the above McDonnell’s remarks to Judge Gibney to support my Eighth Amendment claim.