Gov. Terry McAuliffe, a Democrat, says his order restoring voting rights to 206,000 felons is legal; that he can re-enfranchise an entire class of Virginians in a single stroke. Speaker Bill Howell and Senate Majority Leader Tommy Norment, both Republicans, say that’s illegal; that the governor can act only on a case-by-case basis.
Who’s correct — given that there is little precedent to support either argument — will be decided this summer by the Virginia Supreme Court, whose seven members owe their jobs to the Republicans who control judicial spoils through their legislative majority. The judiciary finds itself in an uncomfortable position that, history shows, it often tries to avoid: settling a political dispute between the executive and the legislature.
On one level, it’s a civics book exercise, a reminder of the occasionally fractious interplay of the three branches of government, as guided by the Constitution of Virginia, seen more as a doctrine of limitations than one of powers. On another level, it’s a nasty argument among top elective officials who deeply dislike one another and — in their ever-escalating battle over policy — are looking to the Supreme Court to provide one side a truncheon with which it can bludgeon the other.
In announcing this past week that it would hear the Republican challenge to the McAuliffe decree, the state’s highest court left no doubt it would decide the case.
The decision, some lawyers suggest, could be technical — and evasive. In other words, the justices wouldn’t rule because there’s no evidence that Howell, Norment and four other plaintiffs have been wronged by McAuliffe. In the argot of the law, the plaintiffs lack standing, despite their claims that elections would be tainted by unqualified felons swept up by the broad order. For McAuliffe, that would be a temporary win.
However, the Supreme Court has considerable latitude to explore the issues on its docket — in this instance, the bounds of a governor’s clemency powers. If facts are in dispute, the court could order both sides to file additional briefs. It may even want to hear from experts and could direct that they appear in Richmond.
It’s possible the case could come down to a pronoun in one section of the constitution that’s missing from another. Article II, dealing with voting and qualifications for office, says a felon is ineligible to vote unless his rights are restored by the governor. Article V, on the executive, outlines a governor’s authority to remove political disabilities. Unlike Article II, it makes no reference to an individual covered by clemency.
That the court, for the first time since 1993, is convening in special session — that is, during the long summer gap in its calendar — is an acknowledgment that this latest executive-legislative dispute, because of the approaching presidential and congressional elections, is time-sensitive but has implications beyond November.
A speedy turnaround is by no means unusual. A year ago this month, the Supreme Court needed about a week to hear arguments and issue an opinion in the lawsuit to keep open women-only Sweet Briar College. Time was of the essence if the financially struggling school outside Lynchburg was to admit students for the 2015-16 academic year.
That the Supreme Court is hearing the voting rights case in tandem with a government transparency question tied to a redistricting lawsuit on which the clock also is ticking may be more than a coincidence.
The challenge to allegedly gerrymandered House of Delegates and Virginia Senate districts is scheduled for trial in Richmond Circuit Court in September. But the Supreme Court must first decide whether six current and former senators should surrender records to the redistricting reform group contesting legislative boundaries.
Were the two cases not heard until the fall, and given that there is no deadline for the court to rule, the disputes might not be resolved until sometime in 2017, a gubernatorial and House election year.
In both matters, there could be a delay attributed to legislators and their special privilege: They are shielded from legal action during a General Assembly session as well as 30 days before it and 30 days after it. That means it could be late March 2017, at the earliest, before either case is resolved.
Ergo, the Supreme Court’s special-session provision ensures resolution — or what passes for it — a lot sooner than later.
Over the past 35 years, a period during which Virginia’s politics have become more competitive and even more contentious, the court has become an arena in which Republicans and Democrats settle their immediate differences or the justices — and the government authorities who rely on their findings — issue edicts with which one political party clobbers the other.
In the early 1980s, the Supreme Court made clear that the election of judges by the General Assembly requires separate majority votes of the House and the Senate. At the time, the Democrats who controlled both chambers were fumbling to fill a vacancy on the State Corporation Commission.
The ruling had implications this year, thwarting for months Republicans’ efforts to fire McAuliffe’s interim pick for the Supreme Court, Jane Marum Roush, replacing her with one of their own; ultimately, Steve McCullough, an appeals court judge who’s burnished his conservative legal credentials as a deputy to Attorney General Ken Cuccinelli.
In the mid-1990s, the Supreme Court narrowly decided the limits of a governor’s power to veto portions of the state budget. Gov. George Allen, a Republican, had struck Democrat-written policy language. The court said the veto could not be used to make editorial changes; that a governor could only reject language tied to an appropriation.
This issue flared last month, when McAuliffe vetoed a provision preventing him from implementing without legislative approval a Medicaid-financed expansion of Obamacare. Should he attempt to do so, over warnings by Howell that the veto is unconstitutional, Republicans could again dash to the Supreme Court, likely invoking the Allen-era decision and others.
In the early 2000s, the Supreme Court junked as taxation-without-representation a bipartisan transportation-financing scheme under which unelected regional authorities would impose new levies in Northern Virginia and Hampton Roads. It was designed as an end-run on Republican anti-taxers who still dominate the General Assembly.
The ruling forced a promise-breaking retreat in 2013 by members of the no-new-tax crowd, most notably Gov. Bob McDonnell and Speaker Howell. Because of continuing resistance by fellow Republicans, McDonnell and Howell were dependent on Democrats to win a tax fix for roads and rails.
Ahead of — and immediately after — the July 19 hearing, there will be considerable handicapping on how the Supreme Court might divide on the voting rights lawsuit and whether some of the justices would be looking over their shoulders at the Republican legislators who have the last word on judicial patronage.
The chief justice, Don Lemons, hits mandatory retirement in 2022; so politics could be the last thing on his mind. Bernard Goodwyn and Bill Mims are up for re-election in 2020 and 2022, respectively. Maybe that’s enough time for Republicans to forgive and forget, should Goodwyn and Mims side with McAuliffe.
Elizabeth McClanahan, Cleo Powell and Arthur Kelsey are considered reliable conservatives. Their terms extend well beyond the next redistricting in 2021. They’re likely secure if Republicans are still in the majority. Ditto McCullough, though as the junior justice, he’s yet to fully establish a profile.
That’ll change soon enough.
Contact Jeff E. Schapiro at (804) 649-6814. His column appears Wednesday and Sunday. Watch his video column Thursday on Richmond.com. Follow him on Twitter, @RTDSchapiro. Listen to his analysis 8:45 a.m. Friday on WCVE (88.9 FM).