How Much Have We Lost?

Monday, May 2, 2016

The Constitution Contemplates Mass Civil Rights Restoration

Governor McAuliffe Signs Order Restoring
206,000 Virginians' Voting Rights
Today, I read that several members have hired counsel to litigate the constitutionality of Governor McAuliffe's decision to restore the civil rights of 206,000 Virginians.  Some are questioning whether he has that power. 

I think he does.  Here's why. 

While prior Governors have not chosen to exercise the authority to restore civil rights in the same way as Governor McAuliffe, prior Governor's practical application is not binding on a court.  What matters is legal authority.

The primary legal argument I have heard is that some claim the second sentence of the Constitution only contemplates individual restorations.  After about twenty minutes of legal research, I do not read it that way.

First, here's the constitutional language.

Article V. Executive
Section 12. Executive clemency

The Governor shall have power to remit fines and penalties under such rules and regulations as may be prescribed by law; to grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and to commute capital punishment.  He shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.

To me this is simple statutory construction.  If you follow the structure of the two sentences, you can see they were written in parallel.  Here is the language again with insertions by me to show where you can easily see what's missing.
The Governor shall have power to [A] remit fines and penalties under such rules and regulations as may be prescribed by law; [B] to grant reprieves and pardons after conviction except when the prosecution has been carried on by the House of Delegates; [C] to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and [D] to commute capital punishment.
 
[Here's the second sentence]
 
He shall communicate to the General Assembly, at each regular session, particulars of every case of [A] fine or penalty remitted, [B] of reprieve or pardon granted, and of [D] punishment commuted, with his reasons for remitting, granting, or commuting the same.

Notice something missing from the last sentence?  The power I enumerated as "C" - the power to remove political disabilities.

In the lawyer world, there's a contract and statutory construction concept called "expressio unius est exclusio alterius" - the expression of one thing is the exclusion of the other.  In other words, silence on the power to remove political disabilities implies that the framers of the constitution meant to exclude it and thus that power does not have to be exercised on a case by case basis. 

Also, the restriction being argued here is implied - it is not explicit in the text of the Constitution.  the Supreme Court of Virginia has also held that implied constitutional restrictions are disfavored and usurpation of an "implied" constitutional provision must be "very clear and palpable." 

Finally, since 1918, the Supreme Court of Virginia has previously found that with regard to the General Assembly, the Constitution of Virginia only restricts its powers, but does not enable them.  I am not sure if that concept has been applied to the executive branch as well, but application of this concept to the Governor of Virginia, would seem to militate in favor of having a blanket power.

Either way, I don't see a legal challenge to the Governor's action going very far.  We will see what happens. 

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