Three states let governors use their discretion to deny voting rights to former prisoners. Lawsuits in two of them say that violates the First Amendment.
After George Hawkins completed a 13-year term in a Virginia prison for attempted murder, he asked the state last spring to restore his right to vote. So far, the administration of Gov. Glenn Youngkin, who has unfettered discretion over such requests, has twice turned him down with almost no explanation.
Governor Youngkin’s authority is enshrined in Virginia’s State Constitution. But now a lawsuit filed by the Fair Elections Center, a Washington, D.C.-based voting rights organization, argues that the federal Constitution limits that power.
The suit, in federal District Court in Richmond, claims that the First Amendment bars Governor Youngkin, a Republican, from arbitrarily silencing Mr. Hawkins’s voice in political affairs. Instead, it calls for Virginia to set rules governing decisions on restoring voting rights.
Otherwise, the lawsuit says, governors could say their rulings on voting rights were impartial, “while secretly basing their decision on information — or informed speculation — on the applicant’s political affiliations or views.”
Last week, U.S. District Judge John A. Gibney allowed the case to proceed, putting off a decision on whether state rules on granting clemency are subject to judicial review until after hearings early next year.
The stakes are potentially large in the Virginia suit and a similar one in Kentucky. (A third state, Iowa, also vests power over voting in the governor but is not being sued because an executive order restores the right to former prisoners who have completed their sentences.)
More than 66,000 Virginians on probation or parole remained disenfranchised as of 2022, according to the Sentencing Project, a criminal justice advocacy group.
In Kentucky, Gov. Andy Beshear, a Democrat, signed an order in 2019 that has automatically restored the franchise to more than 190,000 people. But the lawsuit there challenges the governor’s decision to exclude from automatic restoration more than 55,000 former prisoners who committed high-level felonies like murder or were convicted outside state courts.
In court arguments, the state said this summer that the only standard for restoring voting rights to those not covered under automatic restoration is whether the governor judges the applicant “worthy.” In nearly four years, Governor Beshear has personally restored rights to 60 people.
But when a criterion like “worthy” can encompass people’s skin color, political views or even their deference to authority, both suits argue, it cannot justify a government decision to limit a citizen’s political rights.
Most states either automatically restore the voting rights of former prisoners or have written guidelines on the matter. Virginia is the only state that still places all voting rights decisions in the governor’s hands, the result of Mr. Youngkin’s decision to abandon the automatic restoration policy of his Democratic predecessor, Ralph Northam.
Government attempts to silence citizens because of their opinions or behavior, commonly called viewpoint discrimination, have long been seen by courts as particularly offensive First Amendment breaches. And the Supreme Court has frequently ruled that government officials cannot arbitrarily deny First Amendment rights.
But whether those legal principles apply to a governor’s decision on the right to vote remains in dispute. In the Kentucky suit, the Sixth Circuit Court of Appeals already has ruled that they do not. That power, the court said this summer, applies to licensing decisions like granting parade permits, not to a governor’s pardon powers. The Elections Center plans to appeal the decision to the Supreme Court.
Lawyers for Governor Youngkin made the same argument in the Virginia lawsuit. State rules for granting clemency “are rarely, if ever appropriate subjects for judicial review,” they wrote in a September filing.
A spokesman for Governor Youngkin, Macaulay Porter, said in an email that the governor “firmly believes in the importance of second chances.” She said voting-rights decisions “take into consideration the unique elements of each situation, practicing grace for those who need it and ensuring public safety.”
One scholar of First Amendment law, Kevin F. O’Neill at Cleveland State University College of Law, said courts may not agree that First Amendment protections that apply to issues they commonly see, like the granting of parade permits, also cover far less common cases, like a governor’s refusal to restore voting rights.
At the least, he said, a plaintiff would need to show that some denials of voting rights are rooted in arbitrary factors like race or politics, not just that they could be.
“Ordinarily,” he said, “you can’t win a constitutional case based on hypotheticals.”
Mr. Hawkins, the onetime Virginia convict, went to prison at 17 after being singled out by police officers for a shooting incident in a crowd that left him and two others wounded. He has never cast a ballot.
“I fought my case from start to finish,” he said, “from the day I was convicted until the day I came home this year.” Being denied the vote, he said, “is like saying my sentence ain’t enough.”
He added: “I don’t now what makes me ineligible, I don’t know when I could be eligible. I’m kind of free — like a second-class citizen. I don’t want to be a nonvoter for the rest of my life.”
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