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Del. Ken Plum: Clinging to the Past

by Del. Ken Plum August 4, 2016 at 11:30 am 17 Comments

Del. Ken Plum/File photoThis is a commentary by Del. Ken Plum (D), who represents Reston in Virginia’s House of Delegates. It does not reflect the opinion of Reston Now.

At the same time that the nation is moving forward with a major political party nominating a woman as candidate for the presidency of the United States, Virginia institutions are clinging to past traditions that should have been abandoned decades ago.

The Supreme Court of Virginia ruled that Governor Terry McAuliffe exceeded his authority in a blanket restoration of the voting rights of 206,000 felons who have completed their sentences. There are a number of serious concerns about the Court’s 4-3 decision.

While the Chief Justice who wrote the opinion did not dispute the fact that the Governor clearly has the authority to restore voting rights — as Professor A. E. Dick Howard, the chief drafter of the current Virginia Constitution, and other experts testified — he quibbled with the method the Governor chose in restoring the rights.

The majority of the Court found that the restoration of rights needed to be an individual action and not a class action although there is no provision in the Constitution requiring it.

The Court decided to micromanage the process of the executive in carrying out its authority. If such a decision is extended to other executive actions, the Court could make the Governor powerless. Courts have most often deferred to the legislature and to the executive to carry out the powers that they have under the Constitution.

A second concern is that the Court did not apply a rigorous requirement that the Republican legislators who brought the case show that they would be harmed by the action of the Governor. Of course, we all recognize that new voters coming into the electorate might be intimidating to elected officials who could not be sure how they might vote, but that is not evidence enough that the Court should intervene in an executive action to protect a legislative majority of a particular party.

An action like this one raises doubts as to whether the Virginia Supreme Court could be expected to rule fairly in a disputed election outcome.

Finally, the Court used the history of the actions, or in this case the inaction, of previous governors to limit the power of the incumbent governor.

The powers of the governor are established in the Constitution and not by history. In fact, if the Justices want to review Virginia’s history on voting rights it will find decades of efforts by the parties in power whether Democrat or Republican to limit the electorate as a way to maintain power.

Whether it was the poll tax, blank sheet voter registration, literacy test, denying felons the right to vote, or voter identification, Virginia has had them all. One in five African American males are being denied the right to vote until their rights are restored. The Justices should have been more concerned with the voting rights of citizens than the concerns of legislators wanting to hang onto their jobs.

Governor McAuliffe is moving forward in restoring the voting rights of felons as the Court required but not limiting the number restored.
Fortunately, Virginia’s reputation on the national scene will be enhanced by the nomination of our favorite son Senator Tim Kaine for Vice President. He is a champion of civil rights.

  • Virginia Harlow

    The felons in question should have been more concerned about their voting rights before becoming felons.

  • susie

    Let out all the felons just in time to vote for Hillary! Yes, Ken, our Democrat governor, McCaulliffe, who will soon be a felon himself wants to set a precedent so he too will be able to vote for the corrupt Clinton machine.

  • Ming the Merciless

    So hilarious to see Mr. Dinosaur Dem who thinks it is forever 1965 talk about “clinging to the past”.

    If denying felons the right to vote is “clinging to the past”, so be it.

  • Reston Realist

    Ken, Please move to Maryland so you can enjoy your life….

  • Wheatie

    Terry McAuliffe made his fortune from a number of shady schemes, including selling the identities of the terminally ill, so it’s no surprise that he has an affinity for criminals.

  • CE

    Clinton was not nominated, she was anointed as the democratic process was ignored. Keep on (D) blinders.

    • Chuck Morningwood

      Really? Looked to me like she won her delegates fair and square.

      • susie

        ha ha – then why did the DNC chair resign in disgrace?

        • Blue

          Because DWS is terrible.

  • Paul

    If the Reston Rep and the Guv were serious about making a real change they would be taking steps to amend the Virginia Constitution. They are not serious about making real change for the future, just about making an end run to get what they want now.

    Why don’t they try to amend the Virginia Constitution? Likely they know it’s because it would not pass, much easier to make the end run and then blame the judicial system if they do not rule in their favor.

  • 30yearsinreston

    If felons voted for GOP there wouldn’t be an issue
    They are smarter than the average republican by not voting against their interests

  • Chuck Morningwood

    A person serves their sentence, they should have their rights restored. There might need to be some reasonable limitations: child molesters shouldn’t be allowed to work too closely with children; embezzlers shouldn’t be allowed into money handling positions; violent criminals shouldn’t be allowed to own guns. Unless the crime specifically involved vote fraud (or some such), I can’t see the point in keeping these people disenfranchised.

    Or would you folks rather persecute and torment felons for the rest of their lives in any way you can?

    • susie

      Not letting a felon vote is not persecuting and tormenting them. Give me a break.

  • Michael Barrett

    I am amazed by the partisan response to Del. Plum’s op Ed. These are people who have no understanding of the past, when women and blacks were not allowed to vote across the board. When blacks finally were allowed to vote, states imposed literacy tests that were unbelievably difficult in substance for blacks to respond but kindergarten level for whites. Now, at least the voter restrictions in North Carolina have been stricken down, at least temporarily, because they were intentionally designed to prevent blacks and others who might vote Democratic from voting.

    My career as a trial lawyer for the Civil Rights Division of the Justice Department made me very sensitive to any effort to prevent minorities from voting, from purchasing or renting housing, from getting a job. Voting is really the most important aspect of our efforts and I wish that I hadn’t retired over ten years ago. There is no legitimate reason for denying felons the right to vote after they have served their time. The people who oppose this are fearful that ex-felons will vote for Democrats. So what. That shouldn’t be a bar from someone voting.

    The Constitutional provisions that provide for equal protection and due process are applicable to former felons and not just to people who have never read the Constitution. The Constitution has no exception for ex-felons in terms of voting. While voting regulations are basically left to the states, the Constitution is the supreme law of the land and restrictions on voters have to be consistent with the federal Constitution.

    I look forward to arguments against Del. Plum’s position that could defend restrictions on fellon’s voting that relate only to the necessity in passing such legislation.

    • Paul

      There is a legitimate reason in VA for denying felons the right to vote…the state constitution:

      No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.

      If the Reston Rep and the VA Guv really believe in restoring voting rights they would be taking steps to amend the VA Constitution. The process of restoring voting rights through executive action clearly show that they not interested in making true progress and change, they are interested in a quick fix that can be changed by the next person “in charge”.

  • John Higgins

    To those reading this article, and to Del. Plum himself if he has not already done so, I recommend a reading of the full text of this Supreme Court opinion. ( caselaw.findlaw.com/va-supreme-court/1743532.html ) There one finds reasoned arguments by both the majority and dissenters on the court. Essentially, the question is: what is the governor’s authority under the Virginia constitution? Not, what would one like it to be?

    Two aspects of this case should give one pause in concluding that the court got it wrong. First, McAuliffe argues that all of his 71 predecesors failed to appreciated the unlimited nature of their executive powers. The court said, really? Even though Article V, section 12 says that the governor is to communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon? If one of the 72 governors got it wrong, my money is on the latest one. Note that the recently sainted former governor, now seeking national office, disagrees with #72. When he was asked to restore voting rights to an unknown number of unnamed individuals who had not applied for restoration, he concluded the constitution did not permit it. In fact, he believed “[a] blanket order restoring the voting rights of everyone would be a rewrite of the law.” Citing his “pledge to uphold the Constitution” Kaine refused to “issue a blanket restoration of rights to unnamed individuals” on a categorical basis.

    Second, the governor is regrettably showing contempt for the rule of law in his planned next move. He said he is prepared to crank out as many individually signed orders as a laser printer and autopen can produce without his having to give so much as a reading of the names on those documents or put pen to paper. That’ disgraceful.

    This is a commonwealth. Our political structure and laws derive from the will of its citizens, not an imperial executive or even a large number of individuals in power. Don’t like the constitution? Ask the people to change it.

  • Rational Reston

    Funny to see Del Plum as a Consitutionalist.

    It’s also to see Del. Plum worry about Virginia’s place on “the national scene”, how about Reston’s place on the Virginia scene? Isn’t that we send a Delegate to Richmond?

    Oh, and I think our “favorite son” Senator is Sen. Warner.

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