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The Right Note: Now the Supreme Court Must Decide

by Mark Kelly July 21, 2016 at 1:45 pm 0

The Right Note is a weekly opinion column. The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Mark Kelly

The Virginia Supreme Court will now make a decision on Governor McAuliffe’s order to restore voting rights to over 200,000 felons who served their time.

Previous governors have agreed with legal advice that the right to restore rights was not a blanket one through the clemency powers. Instead, they were supposed to set up a review of each case.

Both Governors Kaine and McDonnell worked to make that review easier. And McAuliffe’s predecessors were applauded from across the political spectrum for doing so.

McAuliffe has fought to keep the list secret, and multiple mistakes have been uncovered — leading to ever-growing criticism.

The case should ultimately rest on one important question:  Did Governor McAuliffe violate the Virginia Constitution with his order? The Court is expected to decide in time for the general election in November.

But the Solicitor General asked that the case be thrown out because the legislators could not prove they were harmed by the Governor’s order. He said allowing the case to go forward could amount to a situation where “any voter is going to be able to challenge virtually any election law.” And there was a good deal of discussion on this question during the arguments.

The Supreme Court did agree to hear this case in an expedited fashion. That seems to indicate the justices are concerned there could in fact be harm if the General Election is allowed to proceed under the order.

However, high courts often make decisions based on procedural questions like this rather than creating a precedent on the merits. If the Supreme Court rules in favor of McAuliffe, they will almost certainly hang their hat, or robes, on this question.

The harm of the order does appear to be to anyone who is a valid voter in Virginia, including our elected officials. If the Governor’s order resulted in individuals having their voting rights restored in error and those individuals register and vote, it dilutes the votes of everyone else. Your vote and my vote would not have as much strength as they should have in the electoral process because of the actions of the government.

Our default position should be that any time the impact of an election law weakens our voting rights, a voter should be able to challenge it. The Solicitor General should stand ready to defend our election laws. And we can let the courts decide.

 

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