At the end of Tim Kaine’s term as Governor of Virginia, the ACLU requested that he do a blanket restoration of rights similar to what Terry McAuliffe did today. At that time Mark E. Rubin, Counselor to then Governor Tim Kaine informed the ACLU on the Governor’s behalf that:

     We conclude that a blanket restoration of rights within the context of current Virginia law would not be proper for two reasons. First, while the wording of the constitutional provision granting the powers of clemency and restoration of rights might be read to support the blanket use of these powers to benefit unnamed individuals, we think the better argument is that these powers are meant to apply in particular cases to named individuals for whom a specific grant of executive clemency is sought. A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers. And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.

To be sure, the Governor disagrees with the current policy embodied in the Virginia Constitution that a felony conviction automatically leads to permanent disenfranchisement. But, he did pledge to uphold the Constitution when he took his oath of office in January 2006. His and others’ efforts to persuade the General Assembly to change the current law and policy have been unsuccessful. To attempt to change the Constitution by executive order on the way out the door could set a dangerous precedent that would have negative consequences if applied under different circumstances by future Governors.

Tim Kaine and Mark Rubin were correct in their analysis, and Governor McAuliffe does not have the authority to alter the Virginia Constitution by executive order. The General Assembly should immediately request an injunction to prevent this miscarriage of justice.

The complete document can be found here:

RubinLetterJan2010

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