By David B. Rivkin Jr. and Andrew M. Grossman
September 11, 2016, in the Richmond Times-Dispatch
This past July, the cronyist government of Venezuelan President Nicolas Maduro threw out more than half of the signatures on a petition for a recall to remove him from office, citing “unclear handwriting.”
That is not a problem shared by Virginia Governor Terry McAuliffe, whose autopen machine traces a perfectly legible facsimile of his signature every time. Following the autocratic example of Venezuela and other rule-of-law pariahs, McAuliffe has his autopen working overtime to transform Virginia into a banana republic, one signature at a time.
The signatures — a mere 206,000 or so of them — are the centerpiece of McAuliffe’s scheme to circumvent the Virginia Supreme Court’s July ruling striking down his executive order that suspended the Virginia Constitution’s general rule stripping felons’ voting rights. The court agreed with legislative leaders who had challenged the order that it was not a legitimate exercise of the governor’s power to grant clemency in particular cases. It was, instead, an unlawful attempt to suspend the operation of a law simply because the governor disagrees with it.
Does he ever. The same day that the decision issued, McAuliffe told the press that he “cannot accept” it. A few days later, citing the venerable maxim that “you’ve got to do what you got to do,” he vowed that “all 206,000 (felons) will have their rights back” in a matter of weeks.
Thus, the autopen. Rather than a single bulk order suspending an entire felon-voting bar, McAuliffe would achieve the same result by issuing an individual order for each felon in Virginia who has completed his or her incarceration and supervised release. On Aug. 22, the governor announced that he had issued 13,000 orders restoring voting rights for the felons who had registered to vote under the order struck down by the Supreme Court and promised (many) more to come.
In response, the same legislators who defeated McAuliffe’s first order have asked the Virginia Supreme Court to hold the governor in contempt and act to enforce its prior judgment.
As their motion exhaustively describes, McAuliffe’s new orders amount to outright defiance of the court’s earlier decision. That decision did not turn on the fact that McAuliffe had issued a blanket order, but instead focused on the “practical effect” of that order as nullifying the law. The new orders have the same effect as the old one, unilaterally suspending the operation of the constitution’s felon-voting bar in precisely the same way, with respect to precisely the same persons. As the legislators’ contempt motion observes, the “Court did not reduce the suspension clause of the Constitution to a printing requirement.”
Indeed, seeking to foreclose further legalistic scheming, the court took pains to state that a Virginia governor cannot “suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone” subject to it. And it made clear that proper exercise of the pardon power requires a “specific request by individuals seeking such relief” and consideration of their “individual circumstances.”
So, whether the Virginia Supreme Court’s decision got the law right or wrong, there is no disputing that McAuliffe’s current actions clash with what it ruled. And that is reason enough for the court to hold the governor in contempt and invalidate his flurry of orders.
But the stakes are far higher than in the last round. McAuliffe’s disrespect for the law and for a co-equal branch of government threatens the freedom and political rights of all Virginians. It is worth recalling President John Kennedy’s admonition, offered in response to defiance of the court-ordered desegregation of the University of Mississippi, that “observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny.” As Americans, we are free “to disagree with the law but not to disobey it.”
That principle applies with special force to those whom we entrust with the power and responsibility to carry out the law. Nicolas Maduro may be above the law, but Terry McAuliffe and his autopen are not.
David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law in Washington, D.C.