| Daquella manera, flickr.com

Legislators challenge McAuliffe felons rights order in Virginia Supreme Court

Republican House and Senate leaders filed a challenge in Virginia's Supreme Court Monday afternoon to Gov. Terry McAuliffe's executive order restoring political rights to over 206,000 felons.

The lawsuit contends McAuliffe overstepped his constitutional authority in his April 22 executive order, which returned the right to vote, to serve on juries, to hold elected office and to serve as a notary public, to both violent and non-violent felons.

In a conference call Monday morning discussing the lawsuit, lead attorney Charles Cooper of the Washington, D.C. firm Cooper and Kirk called McAuliffe's order an "unprecedented exertion of executive authority."

Cooper said McAuliffe's order effectively suspended Virginia's constitutional provision taking away felons' rights “with a single stroke of his pen.”

Cooper also said the move was "injurious to the people" of the commonwealth and their elected representatives because it is "tantamount to a repeal or an amendment" of the state constitution.

"Only people can do that in conjunction with the General Assembly," Cooper said. 

Cooper added that if the state's highest court agrees with the arguments in the suit, "it's clear felons' rights will not be restored," and "any [felon] who does cast a vote will be filing an illegal vote."

In a statement, Gov. McAuliffe said the lawsuit was an attempt to "preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century. 

"This is simply the latest Republican attack on the voting rights of qualified Virginians who deserve a voice in their society," McAuliffe added, "and we will oppose it vigorously.”

In an interview with AMI Newswire, Paul Goldman, who in 2013 served on then-Attorney General Ken Cuccinelli's bipartisan commission that reviewed Virginia's restoration of the felons' rights process, said the lawsuit's fate may rest on the issue of standing.

"The Supreme Court can say the General Assembly doesn't have standing to sue because they can't show a particularized injury," Goldman said.

"Virginia courts don't like 'citizens lawsuits' brought by an advocate of a particular policy point of view," Goldman added.

"They want you to show an injury that's unique to you and nobody else" he said. "Maybe the General Assembly can do that here, but it's tricky. 

"Republicans are arguing constitutional principle," Goldman said. "That's fine. The court may want to hear that argument. But this is also a very politicized issue now, and the court may not want to get in the middle of a political fight."

Highlighting the issue's political nature, both the state's Republican and Democratic Parties were quick to issue press statements on the lawsuit.

Democratic Party of Virginia executive director Becca Slutzky said Republicans "are clinging on to Civil War-era laws that were passed with the intent of preventing African Americans from voting, it's that simple."

Republican Party of Virginia chairman John Whitbeck said he is "optimistic that the courts will act quickly to overturn this blatantly unconstitutional attack on the rule of law."

Goldman said that with politics so tightly bound to this issue, it would be a good strategy for the lawyers on both sides to treat it as what he called "a political lawsuit."

"I've argued a few of those over the years," Goldman said. "The key is to win the political argument before you ever get into the courtroom, so it doesn't matter what the judges say.

"In this case," he added, "the politics, and the history, are as tricky as the law.

"Both sides have made mistakes so far," Goldman said. "Republicans have written a brief that doesn't touch on the particulars of Virginia history surrounding voting rights, and Democrats have made rights restoration a racial issue.

"But," he added, "it comes down to if the Virginia Supreme Court wants to get involved."