Not if you're a felon, for now.

Photographer: Andrew Harrer/Bloomberg

Why Virginia's Governor Has Power to Let Felons Vote

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Virginia’s Democratic governor, Terry McAuliffe, issued an order in the spring allowing over 200,000 convicted felons to register and vote – in time for the November election. Republicans are challenging the order in Virginia’s supreme court. They admit that the governor has the power to issue individual exceptions to the ban on felon voting. But they say he can’t do it in one fell swoop.

Remind you of anything? The structure of the legal arguments parallels those made in U.S. v. Texas, the challenge to President Barack Obama’s executive action on immigration. In that case, the U.S. Supreme Court split 4 to 4, thereby upholding a lower court judgment that said Obama exceeded his power by announcing a policy not to deport some illegal immigrants.

McAuliffe should win: what an executive can do individually at retail, the executive should be able to do collectively at wholesale. But as the Texas case should remind us, such issues are political. So the Virginia outcome is likely to turn on the partisan balance of the state supreme court, not the inherent logic of the legal arguments.

I’m against disenfranchisement of felons. But I want to take seriously the legal arguments against McAuliffe’s unprecedented order, not assume that he’s in the right.

And the best argument against McAuliffe’s action is precisely that it is unprecedented. No Virginia governor has ever tried to issue a mass order that would allow felons to vote.

The challengers emphasize that a power unused for nearly 250 years isn’t a power at all. The governor rejoins that an unused power remains on the books.

It's worth noting that conservatives, who usually think constitutional text should be determinative regardless of past practice, take the opposite view in this case. And liberals tend to be more open to what Justice Felix Frankfurter once called the “gloss” on executive power created by an unbroken history of its use.

To a degree,  the usual positions are reversed here.

I favor the “gloss” approach to determining executive power. Constitutions are designed to last a long time, and circumstances change. Past practice develops and creates a constitutional edifice that goes beyond mere text.

This idea is often considered liberal in the U.S., and is associated with Justice Oliver Wendell Holmes’s famous metaphor of the living Constitution; he called it “an organism.” But its true intellectual origins lie in Edmund Burke’s conservative notion that radical change is generally a mistake when it comes to human institutions – a view that Burke also applied his constitutional thinking.

Consequently, I take the critics’ position seriously. But it runs headlong into a practical problem that outweighs the interest in continuity in this instance.

That’s the admitted fact that allowing individual felons to vote is within the governor’s authority under the state constitution. And no one is saying that individual power has lapsed through disuse.

The challengers assert that the power, analogous to the pardon power, can only be used on a case-by-case basis. That’s the parallel to the argument made by Texas against Obama’s executive order on immigration.

Texas admitted that the president can exercise prosecutorial discretion in individual cases and decide whom to prioritize in deportation. But it said that the president was making new policy for the nation when he announced a wholesale plan not to deport undocumented immigrants who met particular descriptions.

When it comes to some government actions, like criminal prosecution, the principle of due process requires some degree of individual consideration. We wouldn’t allow the government to convict thousands of people simultaneously.

But some kinds of collective action are necessary for government to do its job. In civil matters, courts rely on collective decision-making in class-action cases, which depend on adjudicating for  one representative party who stands in for many others.

And when it comes to extending rights, as McAuliffe and Obama did, there’s no individualized due process requirement imposed by the state or federal constitutions. Due process kicks in when the government deprives people of rights, not when it gives them new ones.

It would be absurd for the state Supreme Court to make McAuliffe issue 200,000 separate individual determinations. And that’s enough for me to conclude that the court should let him do it in a single order -- the same way the Supreme Court should have let Obama implement his executive order.

McAuliffe made his own case harder by declining to release a list of the people whose voting rights he reinstated. Presumably his motive was at least partly political; he didn’t want to give opponents the chance to scan the names for particularly nasty felons.

But the fact of felony conviction is a public one because it’s a governmental act, and the fact of re-enfranchisement should be, too. In a perfect world, the state court would uphold the order but demand release of the names. McAuliffe’s timing was no doubt partisan. But his power exists.

  1. But only to a degree, since the exact question here is whether nonuse of it, can produce a gloss analogous to the gloss produced by use of the power.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net