Adjunct Professor Jerry Goldfeder co-wrote an article for the New York Law Journal about the use of executive authority to restore voting rights.
Earlier this spring, Virginia Governor Terry McAuliffe issued an executive order restoring voting rights to approximately 200,000 citizens who have completed their terms of incarceration and supervised release (including probation or parole). He also announced that, going forward, those who satisfy these criteria will be eligible for rights restoration on a monthly basis. Litigation has ensued. A few weeks after McAuliffe’s order, the Speaker of the Virginia House of Delegates, the Majority Leader of the Virginia Senate, and others filed a lawsuit in the state’s Supreme Court challenging it on state constitutional grounds. The plaintiffs argued that McAuliffe did not have the authority to restore voting rights en masse; in other words, he could restore them person by person, but not a whole group in one fell swoop.
A political fight over the use of executive authority to restore voting rights is not new. Nor is turning to the courts to decide whether state disenfranchisement laws are lawful. What is new is the use of state courts to adjudicate a largely political battle over the use of executive authority to restore voting rights.
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In New York State, persons are disenfranchised while in prison or on parole, but persons on probation are eligible to vote. The constitutions of Florida, Kentucky, Virginia and Iowa appear to permanently disenfranchise persons with criminal convictions unless their rights are individually restored by the government. The interpretation of Iowa’s rule is the subject of pending litigation.
These laws are not new to the federal court system. In 1974, in Richardson v. Ramirez, the U.S. Supreme Court ruled that section 2 of the Fourteenth Amendment permitted states to disenfranchise people on account of criminal convictions. The court reasoned that the constitutional text allowing states to avoid diminished representation for disenfranchising people who commit “rebellion[s]or other crime[s]permitted states to disenfranchise Americans convicted of crimes.” This analysis was limited in 1985, when the Supreme Court, in Hunter v. Underwood, held that felony disenfranchisement laws enacted with the intent of disenfranchising minority voters were illegal. On the other hand, federal courts of appeals in the First, Second, Fourth, Sixth, Ninth, Tenth and Eleventh circuits have upheld state criminal disenfranchisement laws.