Felons’ suffrage in Virginia shouldn’t rely on one person, even if he is the governor

Stop me if you’ve heard this: How many Virginia policymakers does it take to change a light bulb?

Answer: five. One to put in a new bulb, but only after a protracted, emotional debate with the other four about the painful necessity of parting with the old one.

Yep, change comes mighty slow here in the Old Dominion. We cling to anachronisms like cat hair to polyester pants. That includes hoary rites and prerogatives rooted in the British monarchy our forebears won a war against to form our democratic republic.

One of them is the imperative of putting the full duty of felons’ rights restoration on one chief executive, the governor (who enjoys the monarchical salutation “His Excellency” at official ceremonies and stuffy, high-flown social occasions).

Pardons, reprieves, clemency and rights restoration are specifically delegated to the governor by the Virginia Constitution. Governors have folks around them to help decide who gets the slate wiped clean and who doesn’t, but it’s not a duty to be outsourced. When it comes right down to it, His Excellency alone decides which individuals with felony records regain the right to vote, hold elective office, serve as notaries or are selected for juries after they successfully reenter society.

Put aside for the moment ideological and/or ethical qualms over the prospect of the state’s most powerful political figure holding sole, unfettered discretion over which one-time offenders get to vote and which do not.

Restoration of rights should be automatic

We all know of smelly, end-of-term clemency sprees by presidents and governors that paid off past favors. None was bigger (or smellier) than President Gerald Ford’s preemptive pardon of his recently resigned predecessor, Richard Nixon, for egregious criminal abuses exposed by the Watergate scandal. That pardon, more than any other, made possible the one-term presidency of Jimmy Carter, who riled many Americans at the time with his blanket pardon of those who dodged the military draft during the Vietnam War.

Consider it instead from a purely practical standpoint: how does one guy equitably judge the merits of tens of thousands of released felons’ applications in a timely way? Sure, he’s got staff support from the Secretary of the Commonwealth’s office and input from the Department of Corrections. But is it the best use of time for a governor and a cabinet-level office to be vetting restoration-of-rights requests from folks who hot-wired and stole a car 20 years ago at age 18, or who went to prison after being caught in someone’s house near a stash of crack and a stolen gun?

For more than a decade, governors of both parties prided themselves on setting up processes to expeditiously reward those who’ve paid their due and renounced their rough and rowdy past.

Republican Gov. Bob McDonnell, in the final year of his four-year term, was the first to effectively make restoration automatic for nonviolent felons who had done their time and completed parole and probation requirements. Citing a belief in forgiveness and second chances born of his Catholic faith, McDonnell returned more than 10,000 former offenders to full citizenship before he clocked out in January 2014.

His two Democratic successors put the process on steroids. By the time Terry McAuliffe and Ralph Northam — the 72nd and 73rd governors, respectively — left office, more than 300,000 former felons had their right to vote reinstated, eliminating the backlog who had sought restoration.

McAuliffe, during his term, issued a series of executive orders intended to restore the franchise to felons who completed all their post-conviction obligations en masse. In 2016, the state Supreme Court sharply struck down his efforts, holding that the sweeping blanket authority he asserted to restore the vote to a class of felons rather than specific individuals was incompatible with Virginia’s Constitution.

Can a suit tied to an 1870 law finally end Va.’s feudal felon rights restoration regimen?

So, McAuliffe and his successors began swiftly and individually enfranchising applicants who completed their sentences. That included Republican Gov. Glenn Youngkin for the first year of his term before he rescinded the policy seven months ago, slowing the pace to a trickle.

Against that backdrop, Youngkin’s rights-restoration constipation earned the commonwealth another reputational blemish last week when a New York Times story exposed inequities inherent in Virginia’s antiquated regimen.

It tells the story of George Hawkins, who did 13 years for attempted murder when he was 17, finished his post-release obligations, applied to the governor to gain his voting rights and has been rejected twice without explanation. It notes that a lawsuit in U.S. District Court challenging Youngkin’s process has been allowed to proceed over the state’s motion to dismiss.

The Times’ reporting also starkly shows what an outlier Virginia is on the issue of rights restoration. Virginia and Kentucky are the only states that still vest all voting rights restoration decisions for felons in their governors,  according to the National Conference of State Legislatures. Unlike Virginia, however, Kentucky governors can issue blanket restorations via executive order, as Gov. Andy Beshear did in 2019, leaving Virginia in a league of its own.

When the Virginia NAACP alleged that race was a motivation in Youngkin’s decision to throttle down the process, his secretary of the commonwealth, Kay Coles James, forcefully rebutted the assertion in a two-page letter to state NAACP president Robert N. Barnette Jr. She said applications do not collect data on the applicant’s race, religion or ethnicity. If some felons are not getting their rights restored quickly enough, she wrote, it’s because Youngkin generally prioritizes applications from nonviolent offenders over those who used a firearm.07172023 KCJ letter to NAACP

And so it goes: the ceaseless point/counterpoint rhetoric; the litigation that quibbles and nibbles around the edges. It gets us no closer to a lasting, 21st century solution.

Real change requires a state constitutional amendment, something that has been tried several times, unsuccessfully, since the 1980s.

In Virginia, a proposed constitutional amendment must pass both chambers of the General Assembly unchanged in consecutive years separated by a legislative election before it goes to voters for ratification (or rejection) in a statewide referendum. It has never made it to the ballot, with the most recent effort failing last year.

Initial passage came in the 2021 session when Democrats held House and Senate majorities and the governor’s office. A year later, after Republicans swept the 2021 state elections, the second passage was snuffed out in a House subcommittee.

Another shot at modernizing Virginia’s suffrage policy for penitent felons is not on the horizon given the current composition of the legislative and executive branches, even if Democrats hold their tenuous Senate majority in next month’s legislative election.

But then, people who have spent years staring at a concrete wall and locked steel bars may have a different perspective on time than most of us.