I talked last night to WRIC-8's Parker Slaybaugh about the Virginia GOP's latest move in the Voting Wars. The bottom line: the Republicans are unlikely to affect this November's election, but have plenty of other incentives to keep fighting.
As a reminder, last week the Governor issued a sweeping executive order that would restore voting rights to over 200,000 convicted felons. Virginia, like most states, takes away these rights from many convicted criminals, but allows the Governor to restore them.
Virginia Republicans plan to challenge the Governor's executive order in court. Yesterday they announced they had hired Chuck Cooper, a well-connected DC lawyer, to start building their case. Cooper worked in the Reagan White House, and has argued before the Supreme Court (including defending California's Proposition 8, which opposed marriage equality for gays, in 2013).
Virginia's Constitution -- specifically Article V, Section 12, in case you were wondering -- notes that the Governor should "communicate to the General Assembly, at each regular session, particulars of every case." In the past, this language has been interpreted to mean that the Governor should review voting restoration on a case-by-case basis. Governor McAuliffe says it doesn't. This basic disagreement will be at the heart of the legal arguments that we'll soon see brought before judges in Virginia and, likely, federal courts.
But the battle here is not just about legality and constitutionality. There's a political battle going on for the key prize in American politics: political office, specifically the Presidency. Thanks to McAuliffe's order, thousands of new voters may join the rolls just in time for a contested Presidential election in November. Just based on demographics, these voters are more likely to register and/or vote as Democrats than Republicans. House Speaker Bill Howell argued that McAuliffe is explicitly trying to deliver the state to his pal Hillary Clinton this fall.
Of course, Republicans have made voting rights a key battleground for partisan fighting through their voter ID efforts in states across the country. Voter ID laws disproportionately affect poor and minority voters who skew Democratic. In the absence of any evidence of the voter fraud these laws supposedly stop, voter ID laws are better seen as partisan tools to keep Democrats from the polls. In this context, McAuliffe's executive action is almost certainly a strategy to expand, rather than reduce, the Democratic electorate.
But under the partisan fighting, there's a real honest question of ethics here. Restoring voter rights might help the Democrats, and it may or may not be constitutional. But it might actually be the right thing to do. Once criminals have been appropriately punished according to state laws, do we need to keep punishing them by withholding their basic rights as citizens? (NYU's Brennan Center has much more about this, including how voter disenfranchisement is "deeply rooted in our troubled racial history.")
Still, the Republicans will challenge. But this will take time. Their legal team may be in place, but Cooper has to determine how best to establish the standing to sue -- who exactly is harmed by the executive order? -- and needs to craft careful legal arguments for why the order goes beyond the Governor's authority. At the same time, the GOP needs to carefully plan their public relations campaign for this - that they are not opposed to voting restoration per se, only that we should be more careful, that the governor has overstepped his authority, etc.
Even if the lawsuit is filed quickly, most judges will be loathe to offer any rulings that block the executive order until all appeals have been exhausted. In general, the judiciary does not like to be seen as interfering in partisan elections. Even the U.S. Supreme Court's infamous decision in Bush v Gore in 2000 including plaintive language that the case was "limited to the present circumstances," and should not be taken as precedent. The safe bet is that convicted felons will be voting in Virginia this fall.
Yet while the November election will likely proceed with felon restoration in place, Virginia Republicans have other things to worry about. There's next year's gubernatorial elections, where the question of the Governor's action may actually become a campaign issue. (Depending on how long the issue drags on, Attorney General Mark Herring may need to defend the executive order in court at the same time he's running for re-election.) And the Governor promises to continue issuing monthly orders restoring rights to felons, so the size of the electorate will matter for future elections as well.
Republicans in the General Assembly have a long game to play here. They can use the order as a campaign club to beat up Democratic candidates for Governor and AG in 2017; try again to limit the number of Democratic voters in Virginia elections; and even counter executive power in a period where it seems Democrats have a lock on statewide elections but can't challenge for control of the legislature. That's plenty to fight for, even if they can't stop the state from going for Hillary in the fall.