“Don’t boo. Vote.” – President Obama at the Democratic Convention

Virginia House Speaker William Howell and Senate Majority Leader Thomas Norment

The struggle to do just that goes on, as illustrated by three recent court decisions.

In two federal cases, appeals courts struck down voter ID laws in Texas and North Carolina. In the Texas case, the Fifth Circuit on July 20 affirmed the trial court’s finding that the 2011 law had a racially discriminatory effect, as 608,000 registered voters – about one in 20 – lacked the required voter ID and faced obstacles to obtaining one in violation of the Voting Rights Act. It remanded the case to District Judge Nelva Gonzales Ramos for a remedy and reconsideration of whether the legislature acted with discriminatory intent. For North Carolina, the Fourth Circuit on July 29 reversed a trial court, finding the state’s 2013 law (and as amended in 2015) was enacted with racially discriminatory intent in violation of the Voting Rights Act and the 14^th Amendment.

In their analyses, both appeals courts applied the tests of a 1986 Supreme Court case, Thornburg v. Gingles: whether racial polarization – meaning that the race of a voter correlates with a candidate or candidates – renders minority voters vulnerable to the tendency of elected officials to entrench themselves by targeting groups unlikely to vote for them.

Gingles would have been handy in the third court case, Howell v. McAuliffe, in which the Virginia Supreme Court on July 22 invented a limit on the governor’s authority to restore ex-felons’ voting rights. The plaintiffs, House Speaker William J. Howell and Senate Majority Leader Thomas Norment, both Republicans, successfully argued that they had standing as to sue Democratic Governor Terry McAuliffe and then achieved a reversal of his executive orders restoring voting rights to 206,000 ex-felons who had completed their sentences and any parole and probation. The court instructed state officials to strike from the voter rolls citizens who had registered per McAuliffe’s orders, issued in April, May and June.

Under Article II Section 1 of the Virginia Constitution, “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Under Article V Section 12, the governor may “remove political disabilities consequent upon conviction.”

In the 4-3 decision, Chief Justice Donald Lemons wrote that McAuliffe’s orders broke precedent by applying his power to an “indiscriminately configured class . . . without any regard for their individual circumstances and without any specific request by individuals seeking such relief,” contrary to the disqualification provision. To get there, the majority reasoned that the governor had “inverted” the disqualification provision, because under his order, “no person who has been convicted of a felony shall be disqualified to vote unless the felon is incarcerated or serving a sentence of supervised release.” (Emphasis in original.) In so doing, the governor also violated Article I Section 7: “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”

Huh?

In their dissent, Justices Cleo Powell and Bernard Goodwyn reviewed the debate around the governor’s clemency power that led to the Constitution of 1870, which remains unchanged: the legislature rejected any limits on it. Next, they wrote, the majority ignored the plain language of the Constitution and the governor’s order, announcing “an innovative ‘rule-exception sequence’ inversion theory.”

As for the suspension clause, the dissenters wrote, the governor “would be ‘suspending’ the law each time he removed a person’s political disabilities,” whether individually or as part of a group. “[T]he people of the Commonwealth have given their consent to the Governor’s suspension of the law within the limitations set out in the Restoration Clause.” They added, “[T]here is no dispute that a governor’s exercise of such clemency power on an individual basis does not violate the Suspension Clause.” In other words, the suspension clause is irrelevant.

But before they arrived at the merits, the court had to grant the legislators (and four other voters) standing to bring the case. That is, under Virginia precedents, they had to “demonstrate a direct interest, pecuniary or otherwise, in the outcome of the controversy that is separate and distinct from the interest of the public at large.”

Powell and Goodwyn, and in a separate dissent Justice William Mims, argued that the plaintiffs “have failed to make any showing of injury in fact. Rather, they merely claim that they, along with every other voter in the Commonwealth, have had their voting rights diluted. Such an injury could hardly be considered personal.”

To grant standing, the court’s majority were persuaded by the precedent cited by Howell: a 2002 racial gerrymandering case, in which those plaintiffs had shown a “particularized injury” in that, as Powell and Goodwyn noted, they were “denied equal treatment because of the legislature’s reliance on racial criteria.” But that was not present in Howell, the dissenters wrote: The effect on, or damage to, the plaintiffs by “dilution” of their vote with the addition of 206,000 more potential voters is no different than that to any other. The plaintiffs’ interest is indistinct from that of the general public, unless one accepts that all those ex-felons threaten the GOP’s legislative majorities.

What’s ironic in citing a racial gerrymander case to find standing is that the Republican legislators’ interest in McAuliffe’s order is its political effect. As the Fourth and Fifth circuits found, the voter ID laws were racially discriminatory. So is Virginia’s disenfranchisement, a constitutional provision dating to 1830 and emphasized for its effect on “darkies” (future U.S. Senator Carter Glass’s appellation) in the constitutional convention of 1902. As of 2010, 243,000 African Americans – 20 percent of the state’s black population – were disenfranchised ex-felons. Blacks account for 46 percent of the disenfranchised population but 19 percent of all residents. (More than 7 percent of the Virginia’s total population is disenfranchised. Only one state has more disenfranchised residents: Florida, the subject of a prior post, in which I reviewed America’s history of disenfranchisement as a racial weapon.)

In filing suit, Virginia’s GOP complained that McAuliffe, an ally of Hillary Clinton, was attempting to gain a Democratic edge. If that’s the case, the Republicans are trying to limit it – as the Supreme Court articulated 30 years ago in Gingles.

McAuliffe vowed he would not be deterred: he promised to set up auto-pens to sign 206,000 clemency orders. Virginia’s voter registration deadline is October 17. It will be an interesting fall.