Restoration of voting rights, Howell, et al., v. McAuliffe, et al., No. 160784 (amicus curiae). 

On June 27, 2016, the ACLU of Virginia, along with the ACLU’s Voting Rights Project, filed an amicus brief supporting named Respondent Governor Terry McAuliffe’s authority to issue the April 22, 2016 Executive Order that granted restoration of civil rights to an estimated 206,000 Virginians, who have completed terms of incarceration and who have been released from supervised probation and/or parole.  The amicus brief supports the constitutionality of the Governor’s authority to issue such an order and discusses the goals of rehabilitation and reintegration, in additional to the racial impact of felony disenfranchisement in Virginia.  The brief is accompanied by affidavits from three people who had their rights restored as a result of the Governor’s order and serve as examples of the human impact of both disenfranchisement and rights restoration.

Background:
On May 23, 2016, six voters in their individual capacities, including William Howell (Speaker of the House of Delegates) and Thomas Norment (Majority Leader of the Senate of Virginia) filed a lawsuit against Governor Terry McAuliffe’s challenging his authority to issue and implement the April 22 Executive Order that restored the civil rights of an estimated 206,000 Virginians.  Petitioners allege that the implementation of Governor McAuliffe’s restoration order has injured them, specifically by risking the dilution of their votes and by undermining the legitimacy of the upcoming November 8, 2016 election.

Petitioners are asking the Supreme Court of Virginia to issue a writ of mandamus and a writ of prohibition ordering the cancelation the voter registration of all felons registered under the April 22 Executive Order and any subsequent similar order.   Further, Petitioners are asking the Court to prohibit the Governor from issuing additional orders that restore civil rights en masse.  Petitioners are asking the Court to order the other named Defendants (Commissioner of the Department of Elections, State Board of Elections, Secretary of the Commonwealth, etc.) to stop registration of individuals restored by the April 22 Executive Order and to take necessary steps to undo its implementation.

On July 22, 2016, the Virginia Supreme Court held that Governor McAuliffe unconstitutionally exceeded his authority by issuing the April 22 executive order and subsequent orders restoring the civil rights of nearly 206,000 Virginians. The Court ordered the Secretary of the Commonwealth, the State Board of Elections and the Department of Elections to take appropriate measures reversing the effects of the executive orders and cancel the voter registrations of individuals who were newly enfranchised as a result of the Governor's actions. Governor McAuliffe pledged to quickly restore the civil rights of affected Virginians by conducting individualized reviews and sending letters to eligible persons to comport with the Court's decision. On Aug. 31, the petitioners filed a motion asking the Court to order the governor to prove he was obeying the Court's decision. The motion alleged that Governor McAuliffe was not individually reviewing persons for restoration of rights and was circumventing the Court's orders. Governor McAuliffe, along with the Secretary of the Commonwealth, State Board of Elections, Department of Elections filed a lengthy response outlining the measures taken to comport with the Court's decision. On Sept. 1, 2016, the Court denied the petitioner's request.  Governor McAuliffe continues to individually review and issue grants of restoration of civil rights to eligible Virginians.

Attorney(s)

Hope R. Amezquita, ACLU of Virginia; Julie Ebenstein and Dale Ho, ACLU Voting Rights Project

Date filed

June 27, 2016

Court

Supreme Court of Virginia

Status

Closed

Case number

No. 160784

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