Bernie Niemeier
bniemeier@va-business.com
OurView from the Publisher
Opposing stances on legal standing A
s reading goes, it isn’t exactly an Ernest Hemingway
novel. Nevertheless, the Supreme Court of Vir- ginia’s majority opinion and its dissents in the recent case of Virginia House Speaker Bill How- ell and Senate Majority Leader Tommy Norment versus Gov. Terry McAu- liffe is quite a page-turner. Running 63 pages with detailed footnotes, it’s a well-documented historical drama of sorts — at least for political wonks. For those who may not follow such news closely, this is the case challenging McAuliffe’s executive order restoring the voting rights of about 206,000 Virginians who had been convicted of felonies but had completed their terms of incarceration, probation and parole. While the particu- lars vary widely, Virginia is among only six states that do not automatically restore voting rights to at least some felons, the others being Alabama, Florida, Iowa, Kentucky and Mississippi.
After McAuliffe’s order, Howell and Nor- ment petitioned the court to overturn the action as being in violation of the Virginia Constitution. They also asked the court to prohibit the governor from issuing future executive orders restoring political rights to felons as a group rather than on an individu- al basis.
The court’s widely
reported ruling was a split decision, 4-3, in favor of the legislators.
In general, access to the court system requires that the petitioners dem-
Photo credit by Mark Rhodes
onstrate they have stand- ing in a case. For business interests, this is where things get interesting. Standing essentially means a person has a legal inter- est in the case because he or she has been harmed by someone else’s actions. Among Virginia’s
many virtues as a business- friendly state is the fact that its courts typically take a pretty strict view of standing. They do not allow frivolous lawsuits by plaintiffs who simply disagree with a law or the actions of another party. This helps Virginia busi- nesses avoid unnecessary legal costs.
Howell and Norment petitioned the court saying that, as qualified Virginia voters, their votes would be diluted by the addi- tion of 206,000 people to the rolls of those legally qualified to cast ballots. Norment further contend- ed that his plans to seek re-election to the Virginia Senate in 2019 would be harmed by an “invalidly constituted electorate.” The majority opinion, written by Chief Justice Donald W. Lemons, is a sweeping tale of history, particularly the origins of constitutional law. Despite writing that, “Virginia law, not federal law governs every aspect of our deci- sion,” the chief justice cites numerous legal precedents reaching back as far as Britain’s Glorious Revolution in 1688 and its Bill of Rights in 1689. Most of the oldest precedents focus upon historic distrust of executive power. The chief justice also notes that none of Virginia’s previous 71 governors attempted to
restore political or other rights to an “entire class of unnamed felons.” Instead, they addressed the issue on an individual basis. On a textual basis, the Virginia Constitution is pretty clear. Article II, Sec- tion 1 states, “No person who has been convicted of a felony shall be quali- fied to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Article V, Section 12 of the Constitution states that the governor shall have the power to grant pardons and remove political disabilities, going on to say, “He shall com- municate to the General Assembly, at each regular session, particulars of ev- ery case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remit- ting, granting, or commut- ing the same.” The latter part is notably silent on reporting on the removal of “political disabilities.” The dissenting opin- ions in the case were only slightly less lengthy than the majority opinion. The first dissent, by Justice William C. Mims, largely focuses on the issue of standing. Mims disagrees that Howell and Norment have shown a “particularized injury” that was separate and distinct from the public at large. Mims further writes that, “Among other rea- sons we require litigants to demonstrate a ‘particular- ized injury’ to a recognized personal or property right [is] to prevent this Court from becoming embroiled in political disputes.” Thus, Mims’ opinion not
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only avoids the political is- sue, it protects the erosion of the concept of legal standing that is important to business.
The second dissent, written by Justice Cleo E. Powell and joined by Jus- tice S. Bernard Goodwyn, also disagrees with the majority opinion on stand- ing, as well as the consti- tutionality of the executive order. It includes this very telling historical anecdote not mentioned in the ma- jority opinion:
“A more complete consideration of that his- tory indicated that, despite Virginia’s historical distrust of executive power, its citi- zens purposefully granted the Governor textually unrestricted constitutional authority to remove politi- cal disabilities consequent upon conviction, perhaps in consideration of the potential disenfranchise- ment and exclusion from government of former Confederates.”
It is with some degree of irony that Virginia is per- haps once again finding itself on the wrong side of history.
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