ACLU rejects conclusion of Ken Cuccinelli’s rights restoration report

scales-of-justice2The ACLU of Virginia today rejected the conclusion of the report of the Attorney General’s Rights Restoration Advisory Committee that the governor does not have the power to issue an executive order restoring voting rights, and urged Gov. Bob McDonnell to move ahead despite the Committee’s finding.

“While we praise Attorney General Ken Cuccinelli for becoming an advocate for reform of Virginia’s felony disenfranchisement law, we are extremely disappointed in the conclusion of his Rights Restoration Advisory Committee that the Governor does not have the power to restore rights by executive order,” said ACLU of Virginia Executive Director Claire G. Gastañaga.

“The Committee addressed only one possible version of an executive order – a blanket restoration of all felons’ rights without limitation,” Gastañaga added. “There are many other ways that an executive order can be crafted to preserve the Governor’s discretionary role and make appropriate administrative and policy distinctions. If in doubt about his authority, the Governor should seek advice from a lawyer who will help him find a way to accomplish the objective of restoring as many rights by executive order as possible rather than one who will point out all the ways it can’t be done.”

The ACLU of Virginia, along with scores of ministers, faith-based groups, the NAACP and numerous other state and local organizations have pressed for reform of Virginia’s felon disenfranchisement law for years. In  2010, rights restoration advocates urged then-Governor Tim Kaine to issue an executive order, and on January 21 the ACLU urged Gov. McDonnell to issue an executive order. On both occasions, the ACLU provided the Governor with a memorandum setting out the legal basis for such an order.

“For too long, Virginia has been successful in implementing a law designed to target minority voters: one in five African-American adults in the state is disenfranchised,” added Gastañaga. “Felony disenfranchisement requires true reform: Gov. Bob McDonnell should issue an executive order restoring voting rights to as many of the hundreds of thousands of Virginians who have been denied their political voice as possible, and legislators should pass a constitutional amendment repealing this Jim Crow era felony disenfranchisement law.”

Under the Virginia Constitution, the governor, not the General Assembly, has control over the process for restoring voting rights of felons. Only the General Assembly has the power to put a Constitutional amendment to change this before the people for a vote. A constitutional amendment requires approval by two separate legislative sessions (with a House of Delegates election in between) before it can be put to a referendum by Virginia voters. This year, the Virginia General Assembly again failed to pass any measures that would reform Virginia’s disenfranchisement law.

According to the Sentencing Project, over 450,000 individuals – about 7.3% of the population – are barred from exercising their right to vote in Virginia due to a felony conviction. The vast majority of disenfranchised persons in Virginia and the U.S. are no longer incarcerated and are tax-paying citizens who are involved in their communities. At least two-thirds have fully completed their sentences, including probation and parole. Moreover, as the number and kinds of offenses that are felonies in Virginia have proliferated, the link between offense and disenfranchisement has become less and less rational and more attenuated.

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