Not long ago, Virginia governor Terry McAuliffe initiated a sweeping order to restore voting rights to over 200,000 felons in the state. McAuliffe insisted that the effort was not only within his authority, but also within his competence. He promised Virginians that only those who had fully served their sentences and probation or parole and who had not re-offended would be eligible for restoration.

So much for competence. The Washington Post reported yesterday that at least some of the beneficiaries might have to vote absentee — from prison:

Gov. Terry McAuliffe (D) mistakenly restored the right to vote to several violent felons currently in prison or on supervised probation, as part of his sweeping clemency order, records show.

Among the 206,000 felons who were awarded voting rights are some high-profile killers whose crimes shocked their small communities. …

The administration said only felons who had served their time and completed parole would win back the right to vote and be permitted to resume other aspects of civic life, such as serving on a jury or running for public office.

McAuliffe granted voting rights to a sex-offender turned murderer who is currently serving a life sentence in West Virginia. Another beneficiary is a former police office who shot a woman as her car drove off, and is currently under supervised probation in California. After the Post asked about these two cases and several others, the state of Virginia reversed their restoration, and then offered this statement in response:

“This is obviously a massive administrative undertaking,” Coy said. “We are working constantly to refine the working administrative database that we’re using to implement this process. As we are made aware of ways we can refine it, we’re executing those refinements immediately.”

In other words: We couldn’t perform the proper due diligence and you caught us at it. McAuliffe could have approached this on a case-by-case basis and kept these issues from arising in the first place, but he instead chose to use the blanket approach. Had they taken a more deliberative approach, then McAuliffe and Virginia wouldn’t have a problem with “refin[ing] the working administrative database.”

The state Republican Party sued McAuliffe to block this action two weeks ago on this very basis, choosing to go directly to the state Supreme Court rather than spending time in lower courts. They argue that McAuliffe does not have the authority to effect a blanket restoration, which cuts against Virginia statute, but only has the power of clemency on an individual basis. McAuliffe accused Republicans of attempting to reinstate Jim Crow, which seems rather suspect considering that (a) the Virginia statute prohibiting felons from voting goes back to the 1830s before African-Americans could vote at all in Virginia, and (b) McAuliffe governed under that statute for almost three years himself.

The attorney representing the plaintiffs laid out the case in Friday’s Wall Street Journal:

The more relevant historical reference is not the state’s 1902 constitution, but rather its founding constitution of 1776, which predates the Declaration of Independence. Led byJames Madison and George Mason, the framers of Virginia’s original constitution sought to ensure that the lawmaking power rests in the hands of the people themselves. But they also wanted to forever forbid their governor from repeating the king’s abuses of executive authority. Among the abuses they feared were royal edicts eerily similar to Gov. McAuliffe’s executive order—granting blanket clemency to all who violated a particular law.

A related fear today is that Gov. McAuliffe’s unprecedented assertion of the clemency power is only the beginning. As Gov. Kaine recognized in 2010 when he declined to issue a blanket restoration order, such a unilateral expansion of executive power “could set a dangerous precedent that would have negative consequences if applied under different circumstances by future governors.” A governor who disagrees with the Commonwealth’s gun laws could issue a blanket pardon to all persons convicted of illegal possession or sale of firearms and follow it up with similar monthly orders, effectively suspending the gun laws.

Reasonable people can disagree whether all felons should automatically regain the right to vote or serve on a jury. But this is a policy choice that requires an amendment to the state’s constitution, adopted by the people of Virginia and their representatives in the General Assembly—not by a single person in the executive mansion. Gov. McAuliffe’s order invades the exclusive legislative powers of the people and thus does violence to the constitutional rights of all Virginians.

In today’s Post, Sean Kennedy wonders why we don’t require felons to earn their restoration:

They alone must choose if they will return to lives of crime or substance abuse and the resulting punitive measures or if they will redeem themselves in the eyes of the law and their fellow citizens. If they choose the latter, we have an obligation to reward them — if they can earn their redemption.

States and the federal government should set out stringent criteria that ex-offenders must meet, including holding steady employment, making appropriate financial restitution to the state and their victims, paying taxes, liens and debts (e.g. child support) in a timely manner and participating in and serving the community. Most important, they must remain on the straight and narrow, free from criminal acts and convictions and from substance abuse.

If those convicted of felonies or other crimes meet these criteria, the state should go a step further after a time and completely expunge and/or seal their criminal records. Maryland took a first step in this direction recently by enacting the state’s Justice Reinvestment Act, which expands eligible offenses for expungement to 50. In addition, the states should restore all their prior rights as citizens, including suffrage, employment, housing and many others. After five years, these former inmates would be eligible to petition a court for full citizenship restoration with final approval granted by the state’s governor (or the president in federal cases). …

For felons and former inmates, the states should set expectations high that you will be pardoned — if you can earn it.

Note well that this would still be adjudicated individually, and with legislative approval on the process itself. That’s the proper way to change laws and deal with broad public issues. McAuliffe usurped that process with an executive order, making himself the executive, legislature, and judiciary all rolled up into one. His order should be reversed … long before McAuliffe himself has a personal interest in voting rights restoration.

Front-page image courtesy of Steve Burns at WMAL.