Showdown in Virginia Over Voting Rights

By: Miles Pringle

May 2016

On Friday, April 22, Virginia Governor Terry McAuliffe (Democrat) signed an Executive Order giving formerly convicted felons in Virginia the right to vote after completion of their prison sentences and any probation and/or parole period.  In his announcement, Gov. McAuliffe made several references to Virginia’s troubled history with voting restrictions, specifically referencing the state’s enactment of a poll tax.  See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079 (1966) (“Held: A State's conditioning of the right to vote on the payment of a fee or tax violates the Equal Protection Clause of the Fourteenth Amendment.”).  His action fulfills a campaign promise he made when running for office.  His message upon signing the Executive Order was “People have served their time and done their probation… I want you back in society.  I want you feeling good about yourself.  I want you voting, getting a job, paying taxes.” [1]

Are politics involved in Gov. McAuliffe’s move?  Probably, Virginia is a swing state; however, it should be noted that Virginia prohibits its governor from running in successive terms.  Thus, Gov. McAuliffe could not benefit from this move until the 2021 gubernatorial election (both U.S. Senators from Virginia are Democrats (Tim Kaine and Mark Warner).  The move is expected to affect approximately 200,000 individuals.[2]  To put this in perspective Virginia had 5,196,436 registered voters in 2015 (down from 5,428,833 in 2012).[3]  Not everyone eligible to vote registers to do so.  Exact numbers are hard to come by, but depending upon the year between 78% (2008)[4] and 66% (2015)[5] of eligible voters register nationally.  Not everyone registered to vote does so. Virginia turn out in 2014 (senatorial election) was 41.6%, 43% in 2013 (gubernatorial election) and 71% in 2012 (presidential).[6]  Thus, depending on the election cycle, the number of new voters could be 110,000 in a presidential election or 55,000 in non-presidential election cycles.   

Virginia elections have been close in recent years.  In 2013 Gov. McAuliffe won his election by approximately 66,000 votes,[7] and in 2014 Sen. Mark Warner won by approximately 17,000 votes.[8]  In 2012 President Obama defeated Mitt Romney in Virginia by approximately 116,000 votes.[9]  The Republicans may have won the Governor’s Mansion or the U.S. Senate Seat had they convinced Robert Sarvis, former Republican turned libertarian, not to run as a third party candidate in those elections, in which he won 145,000 and 53,000 votes respectively.

Some pundits and rivals have accused the move as an attempt to help Hillary Clinton in the fall, as Gov. McAuliffe was Co-Chairman of her 2008 presidential campaign.  If that was the sole motivation, it was likely an unnecessary move, as Hillary has several paths to winning in November with or without Virginia. To win the White House in 2016 the Republican Nominee will need to gain 64 electoral votes from Mitt Romney’s showing in 2012.[10]  Virginia has 13 Electoral Votes.  Thus, any Republican will need to not only win Virginia, but hold all of the swing states Romney won (e.g. North Carolina), and come up with 51 additional Electoral Votes.  For example, the Republican Nominee will need to flip Florida, Ohio, Wisconsin and Virginia.  A tall order for any candidate, but likely impossible for a candidate like the presumptive nominee Donald Trump whose unfavorable rating is around 65%[11] (although Hillary also has high unfavorables of around 54.9%).[12]

Furthermore, it appears that the Governor’s move will be held up in litigation.  On May 2, Virginia Republicans announced that they will file a lawsuit challenging the Executive Order.[13]  In short, the lawsuit hinges on whether the Governor has the authority to issue a blanket order, or whether restoring voting rights must be performed on a case-by-case basis.  It is unclear how long this challenge in the courts will last, but it may prevent the Orders’ implementation until after the presidential election (if ever).

Virginia Republicans may have walked right into a political trap.  Hillary likely doesn’t need Virginia in the fall, and may take it without any additional voters. There is no senate seat up for grabs, and, because of gerrymandering, the congressional seats do not appear to be in play.  Furthermore, this policy is easily made into a racial issue as minorities, especially African-Americans, are affected by America’s incarceration policies.  Virginia imprisons 1,422 African-Americans per 100,000 compared to 283 white Americans per 100,000.[14]  Virginia Republicans are buying bad publicity for this and future elections.  If the executive order is upheld, those affected individuals (along with their friends, families and moral sympathizers) have been given incentives to vote against state Republican candidates.  If struck down, Gov. McAuliffe has time to fashion another remedy before the 2017 gubernatorial election and/or make it a strong campaign issue in future elections.  Regardless, Virginia Republicans appear to be standing in the way of minority voting rights.  Not a palatable position in 1966, much less so in 2016.

Is Gov. McAuliffe’s Executive Order the right thing to do?  Yes.  Even Virginia Republican Party Chairmen John Whitbeck acknowledged “[t]hose who have paid their debts to society should be allowed full participation in society”.[15]  America’s rate of incarcerating its citizens is appalling.  “It is well known that, with nearly 5 percent of the world’s population, the United States has close to 25 percent of the world’s prisoners”.[16]  American prosecutors win 95% of their cases (90% without ever having to go to trial), compared to 60% in Canada and 50% in Britain.[17]  This statistic is staggering considering the constitutional protections American citizens are suppose to be afforded to obtain a fair trial.  The United States has almost double the number of prisoners as China, despite the fact that China’s population is more than four times the size of the U.S. and China is actively repressing its people.[18]  These numbers do not even capture the conditions of prisoners in the United States, e.g. as of 2012 fifty thousand American male prisoners were held in solitary confinement and seventy thousand prisoners are raped each year.[19]

On a side note, as of 2009 the U.S. prison population has begun to decline; however, Oklahoma’s has continued to grow.[20] From 2009 to 2014 Oklahoma’s prisoner population grew 11.7%.[21]  Oklahoma has the second-highest incarceration rate in the United States.[22]  This is a moral and budgetary crisis.

Gov. McAuliffe’s Executive Order does not fix the underlying problem of over incarceration.  It does begin to address the issue that in a free country, when individuals have paid their proscribed debt to society with years of their lives, those individuals should be allowed to rejoin that society.  What appears to be getting lost in the debate is that Virginia had one of the most unforgiving policies in the nation.  It was one of only four states (Florida, Iowa and Kentucky) which continue to prohibit felons from voting after all prison, probation and parole time has been served.[23]  The Executive Order brings Virginia into the national norm as the new policy is also practiced by thirty-one other states, including Oklahoma.

Perhaps Gov. McAuliffe has overstepped his authority, and any reinstating of voting rights must be done on a case-by-case basis.  Regardless, his action is a smart move politically and the right thing to do.

[1] Stolberg, Sheryl Gay, and Eckholm, Erik, “Virginia Governor Restores Voting Rights to Felons”, The New York Times, Pub. April 22, 2016, available at http://www.nytimes.com/2016/04/23/us/governor-terry-mcauliffe-virginia-voting-rights-convicted-felons.html (last accessed May 3, 2016).

[2] See Stolberg and Eckholm, Supra Footnote 1.

[3] Virginia Dept. of Elections, “Registration/Turnout Statistice”, available at http://elections.virginia.gov/resultsreports/registration-statistics/registrationturnout-statistics/ (last accessed May 3, 2016).

[4] United States Census Bureau, “Voting and Registration in the Election of November 2008”, at Table 1 (“Reported Voting and Registration by Sex and Single Years of Age: November 2008”, available at https://www.census.gov/data/tables/2008/demo/voting-and-registration/p20-562-rv.html (last accessed May 3, 2016).

[5] Static Brain, “Voting Statistics”, available at http://www.statisticbrain.com/voting-statistics/ (last accessed May 3, 2016).

[6] See Virginia Dept. of Elections, Supra Footnote 3.

[7] The New York Times, “Virginia Governor”, pub. Nov. 6, 2013, available athttp://www.nytimes.com/projects/elections/2013/general/virginia/map.html (last accessed May 3, 2016).

[8] The New York Times, “Virginia Election results”, pub. Dec. 17, 2014, available athttp://elections.nytimes.com/2014/virginia-elections (last accessed May 3, 2016).

[9] The New York Times, “Virginia Election results”, pub. Dec. 17, 2014, available at http://elections.nytimes.com/2012/results/states/virginia (last accessed May 3, 2016).

[10] CNN.com, “Election 2012: Results”, available at http://www.cnn.com/election/2012/results/main/ (last accessed May 3, 2016).

[11] RealClearPolitics, “Trump: Favorable/Unfavorable”, available at http://www.realclearpolitics.com/epolls/other/trump_favorableunfavorable-5493.html (last accessed May 3, 2016).

[12] RealClearPolitics, “Clinton: Favorable/Unfavorable” available at http://www.realclearpolitics.com/epolls/other/clinton_favorableunfavorable-1131.html (last accessed May 3, 2016).

[13] See e.g. Richer, Alanna, “Virginia Lawmakers to Sue Over Felons’ Voting Rights”, pub. May 2, 2016, available at http://abcnews.go.com/US/wireStory/virginia-gop-lawmakers-sue-felons-voting-rights-38814642 (last accessed May 3, 2016).

[14] The Sentencing Project, State-by-State Data: Virginia”, available at http://www.sentencingproject.org/the-facts/#map?dataset-option=SIR (last accessed May 3, 2016).

[15] See Stolberg and Eckholm, Supra Footnote 1.

[16] Zakaria, Fareed, “What Happened to the Rights of the Accused in America?”, The Washington Post, pub. April 30, 2015, available at https://www.washingtonpost.com/opinions/what-happened-to-the-rights-of-the-accused/2015/04/30/8b4cf4ca-ef74-11e4-8abc-d6aa3bad79dd_story.html (last accessed May 4, 2016).

[17] Id.

[18]Walmsley, Roy, “World Prison Report (Eleventh Edition)”, World Prison Brief, Institute for Criminal Policy Research, available at http://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition.pdf (last accessed May 4, 2016).

[19] Gopnik, Adam, “The Caging of America: Why do we lock up so many people?”, The New Yorker, pub. January 30, 2012, available at http://www.newyorker.com/magazine/2012/01/30/the-caging-of-america (last accessed May 4, 2016).

[20] The Sentencing Project, “U.S. Prison Population trends 1999-2014: Broad Variation Among States in recent Years”, pub. February 2016, available at http://www.sentencingproject.org/wp-content/uploads/2016/02/US-Prison-Population-Trends-1999-2014.pdf (last accessed May 4, 2016).

[21] Id.

[22] NewOK, “Growth in Oklahoma prison population persists”, pub. January 17, 2016, available at http://newsok.com/article/feed/951347 (last accessed May 4, 2016).

[23] The Sentencing Project, “felony Disenfranchisement”, Updated April 2014, available at http://www.sentencingproject.org/wp-content/uploads/2015/12/Felony-Disenfranchisement-Laws-in-the-US.pdf (last accessed may 4, 2016). 

©PRINGLE® 2016

This Article was originally published in Oklahoma County Bar Association’s Briefcase Vol. 49 No. 5 in May 2016.