January 15, 2010
By Hans A. von Spakovsky
In her Jan. 13 opinion piece, Erika Wood of the Brennan Center in New York suggests that Gov. Tim Kaine, on his way out the door, restore the voting rights of all 300,000 of Virginia's convicted felons "with the stroke of a pen." In effect, she is asking Kaine to put politics ahead of state law, displaying a complete lack of respect for the law and the legal procedures that have the overwhelming support of Virginia's citizens.
Since antiquity, withholding the right to vote from convicted felons has been considered rational and reasonable. Why should we allow those who have broken the law to have any say in making it?
The U.S. Constitution recognizes that in Section 2 of the 14th Amendment. It specifically provides that states may take away the right to vote "for participation in a rebellion, or other crime." Three federal courts of appeal have rejected challenges to the felon disenfranchisement laws of Massachusetts, New York, and Florida.
Only the 9th Circuit has gone the other way, recently holding that felons still in jail for their crimes cannot be deprived of their right to vote. Its decision deliberately ignores the Constitution, the decisions of the other courts of appeal, and the long history of this practice. The Supreme Court will be asked to review the decision and should overturn it.
Under Virginia law, convicted felons don't just lose the right to vote. The people of Virginia have decided that lawbreakers should lose other rights, including the right to carry a firearm and the right to serve on a jury. They also suffer the loss of the right to hold public office, public employment, (such as working in a child welfare agency or a family day care home), or to be a notary public. These are rights that can be restored only upon application and an in-depth review by the secretary of the commonwealth, including a criminal background check, and the approval of the governor. In addition, the licensing boards of certain professions can refuse to grant, or can revoke, a license to practice those professions to convicted felons.
Virginia felons who want their civil rights restored must show that they have paid their debt and that they've changed their ways. They cannot apply for restoration until they have been released from supervised probation for three years for nonviolent crimes or five years for violent, drug, or election-related crimes. They also must have paid all court costs, fines, and restitution to their victims.
Wood complains that the process is lengthy and that only the governor can grant relief. But the Virginia process is intentionally individualized. Virginia is entitled to ensure that those who have shown that they're willing to break the law in the past to injure or kill their fellow citizens, or to steal or damage our democracy by committing election crimes, have paid their debt to society and shown that they deserve restoration to full citizenship. Wood would use the "stroke of the pen" to completely ignore and override that process and grant relief on a wholesale basis, without considering whether someone is really entitled to restoration of their rights.
If critics believe that Virginia's disenfranchisement law is unfair, they should petition the legislature to change it, not ask the governor to effectively override it by executive fiat. Significantly, Wood does not mention the fact that, unless any executive order is carefully crafted, any mass restoration of felons' rights granted by the governor also could restore all of the other civil rights of felons. Convicted felons might then become eligible for public employment, allowing them to become teachers in our local schools or police officers in our cities, no matter what their previous crime or subsequent history.
Wood's suggestion shows a complete lack of respect for the democratic process and the safety of Virginians. It is particularly pernicious since it is, in fact, a back-door, eleventh-hour maneuver that circumvents the legislative process and takes the question away from Gov.-elect Bob McDonnell. He and the new legislature should be the ones who decide whether, and how, Virginia laws should be amended.
It would be a gross abuse of executive power for a lame-duck governor to take such a radical step. Kaine should reject the foolhardy suggestions of those who would not have to live with the consequences of their ill-considered advice.
Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former commissioner on the Federal Election Commission. John Park is a visiting legal fellow at Heritage and a former Alabama assistant attorney. Both reside in Virginia.
First Appeared in the Richmond Times-Dispatch
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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