Wednesday, January 13, 2010
Law allows Kaine to act on voting rights
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Rebecca K. Glenberg
Glenberg is the legal director of the ACLU of Virginia in Richmond.
The Roanoke Times has long supported reform of Virginia's felon disfranchisement law, so was I surprised to see in a recent editorial that you oppose a blanket executive order by Gov. Tim Kaine restoring the voting rights of 300,000 Virginians.
In "Even a bad law can't be broken" (Jan. 7 editorial), you seem to have fallen prey to a common misperception that the Virginia Constitution requires the governor to restore voting rights one person at a time and to communicate the particulars of each case to the Virginia General Assembly.
While that has been the custom of governors in Virginia, a straightforward reading of the Constitution shows that it is not required.
Under Article V, Section 12 of the Virginia Constitution, the governor's executive clemency powers include the authority to remit fines and penalties, to grant reprieves and pardons, to remove political disabilities that result from a conviction (such as loss of voting rights) and to commute capital punishment
When the governor exercises executive clemency, Article V, Section 12 requires only that he communicate "the particulars of every case" to the General Assembly when remitting fines and penalties, granting reprieves and pardons and commuting capital punishment. The removal of political disabilities is not among the clemency actions that must be submitted one at a time to the General Assembly.
Elsewhere, the Virginia Constitution says, "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the governor." There is no limitation on the governor's power to restore rights, and no mention of having to report the names of such people to the General Assembly.
Good people may differ on how to interpret the law, but there is little doubt that the Virginia Constitution treats the governor's power to restore voting rights differently from other kinds of clemency powers and that it does not carry the same reporting obligation required for relief of fines, pardons and commutations.
You are correct that Kaine does not have the power to make a new law just because he doesn't like a bad one. But no new law is required to issue a blanket restoration order under the Virginia Constitution. Other governors have done it under similar constitutional provisions, including the Democratic governor of Iowa in 2005. Only two years ago, the Republican governor of Florida significantly reformed that state's voter restoration procedures using his executive powers.
I hope you will rethink this editorial -- not because of its viewpoint, to which you are entitled -- but because you presented as fact an interpretation of law that is by no means definitive.
