The nation's eyes might be on Cleveland this week (unless they're looking for a Snorlax). But in Virginia all eyes are on the state Supreme Court, where an issue that may have just as big an effect on elections is being heard this week: felon voter rights.
A quick recap: 34 states in the nation bar convicted felons from voting, even once they've served their sentences. Virginia has allowed felon rights to be restored by the Governor, but essentially on a case-by-case basis. Earlier this year, Virginia Governor Terry McAuliffe announced that he would restore rights to over 200,000 felons with one sweeping executive order. Republicans have sued to stop this order, and force the Governor to go back to individual restorations. The Virginia Supreme Court is hearing arguments this week, although the final decision may not be issued for some time.
I spoke last night with WRIC-Richmond reporter Mark Tenia about the case, noting that there could be important implications for this November's election. Virginia is a battleground state that both Republicans and Democrats feel is winnable in recent Presidential elections, and even a small number of votes might make a difference.
How many votes are we talking about? The 200,000 number is thrown around a lot, but not all of those people will vote. The demographics of convicted felons -- largely poor and minority -- indicates that most will vote Democratic, but also tells us that an even greater percentage won't vote at all. The Economist suggested that as few as 30,000 might actually come out to the polls in November - in a state that Obama won by 150,000 votes in 2012.
Still, Democrats won all three top offices in the last statewide election, and the state went to Obama in the last two Presidential years. Even back in 2012, a UVA study noted that demographic changes, particularly the growth in the more diverse (and Democratic) NoVA-DC suburbs, are turning Virginia into a more solidly "blue" state. As a result, Republicans may be feeling some desperation to slow down the blue tide, which may be at least partially fueling the current lawsuit.
In the court of public opinion, McAuliffe probably still has the upper hand. As conservative blogger Jim Hoeft noted, the Republicans' lawsuit enables Democrats to portray them as "obstructionist, out of touch, fearful, racist and bent on disenfranchising voters." That may not scare away the Republican base in the age of Trump, but it won't win over those diverse NoVA voters.
Still, the Governor has good reason to be concerned. The fact that the Virginia Supreme Court even decided to hear this case at all is not a good sign. In general, judges are wary of interfering with the electoral process; in order to hear this case, the VA Supremes had to schedule a special session for the first time in 23 years. Clearly they wanted to issue a decision before this fall's election.
While I'm no mind-reader, this suggests at least two avenues of thinking. On the one hand, perhaps they were concerned that the Governor's order, being contested in the media, would cause Virginians to question the validity of this fall's election results. Since their role is to settle constitutional questions, the Court thought it best to step in and review the order and settle the matter.
The second option, more worrying for the Governor, is that some Justices find the Republican's arguments about constitutional overreach appealing. The legal consensus seems to be on the Governor's side. But the Court leans Republican and conservative, and we've seen justices throw impartiality out the window before.
Whatever decision the court makes, it's unlikely -- although not impossible -- that the Virginia vote this fall will be close enough for the felon rights issue to make a difference. The bigger impact may be in future elections, all across the country. There's a hidden war going on over voting, as Republicans and Democrats try to shape the electorate in ways favorable to themselves. Republicans have been winning this war in recent decades, especially with the drawing of district lines and voter ID laws designed to limit the size of the electorate (and not to combat the supposedly widespread scourge of voter fraud, as Republicans often claim).
McAuliffe's voter rights initiative is one of the first salvos in a possible Democratic counter-attack. Felon rights restoration offers a chance for Democrats to make the argument for inclusion, widening participation, and ending functionally racist (and, sometimes, deliberately racist) policies that disproportionately affect poor and minority voters. They'll start making that argument this week in front of the Virginia Supreme Court.