Should a state governor have the power to decide who gets to vote on federal elections? A lawsuit filed in the federal District Court in Richmond may determine whether the practice is legal or not.
The lawsuit was originally filed in April by the Fair Elections Center, a voting rights organization based in Washington, D.C., the lawsuit claims that the federal Constitution limits that power. This past week, U.S. District Judge John A. Gibney allowed the lawsuit to proceed after hearing arguments from both sides as to whether he should throw out the case.
“It is apparent that there are factual issues that must be developed,” Judge Gibney reportedly said as he explained his reasons to allow the motion to continue.
According to NPR the judge also ordered attorneys from both sides to prepare for discovery, which is the process in which they can request documents and depose people. The process must be completed by Jan. 14, ahead of a hearing in March 20.
The lawsuit challenges states that have vested onto the governor the power to restore the voting rights of former convicted felons. Although Virginia was the only state sued in this motion, this being a federal court case may affect all states. Currently, only Virginia and Kentucky maintain the practice; however, some other states (such as Iowa) still have such practice deemed as legal in their constitutions.
Most importantly, the outcome of the lawsuit will also impact whether other states will be able to amend their constitutions to vest such power to their governors as well.
Before Gov. Glenn Youngkin’s (R-Va.) governorship, former Gov. Ralph Northam (D-Va.) had implemented a policy of automatic restoration in Virginia, a policy similar to how most states approach restoration. Should the lawsuit favor the plaintiffs, it may prevent other governors from following into Youngkin’s footsteps and “grabbing” this power back to themselves.
The lawsuit argues that the First Amendment bars Gov. Youngkin from arbitrarily silencing certain convicted felon’s voices in political matters. It also calls for Virginia (and inherently all other states) to set specific rules determining how to decide on matters regarding restoring voting rights.
The lawsuit also claims that the status quo allowed for governors to claim that their ruling rights were impartial “while secretly basing their decision on information — or informed speculation — on the applicant’s political affiliations or views.”
“The ultimate goal is to create a process that’s not arbitrary; a process that’s bound by rules and criteria and is not just left to the complete discretion of a single politician,” Jon Sherman, the litigation director for the Fair Elections Center said.
Macaulay Porter, a spokesperson for Gov. Youngkin, told The New York Times that the governor firmly believed in the importance of second chances.
“Voting rights decisions take into consideration the unique elements of each situation, practicing grace for those who need it and ensuring public safety,” Porter said.
It is unclear whether the First Amendment protects voting rights restoration. Earlier this summer, the Sixth Court of Appeals ruled in Lostutter v. Kentucky that when granting pardons, a governor may have the discretion as to whether the convicted felon may have their voting rights restored.
“While a person applying for a newspaper rack or parade permit is attempting to exercise his or her First Amendment right to freedom of speech, a felon can invoke no comparable right when applying to the Governor for a pardon because the felon was constitutionally stripped of the First Amendment right to vote,” Circuit Judge Helene White wrote in the opinion of the court.
The Fair Elections Center has challenged the decision in the Supreme Court, though it is currently unknown if the Court will take on the case.
