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Three states allow their governors to use their discretion to deny former prisoners the right to vote. The lawsuits in two of them claim this violates the First Amendment.
By Michael Wines
After George Hawkins served a 13-year sentence in Virginia for attempted murder, he petitioned the state last spring to repair his right to vote. So far, Gov. Glenn Youngkin’s administration, which has absolute discretion over such requests, has twice denied it with almost no explanation.
Governor Youngkin’s authority is enshrined in the Virginia State Constitution. But now, a lawsuit filed through the Center for Fair Elections, a Washington, D. C. -based voting rights organization, claims the federal Constitution limits that power.
The lawsuit, filed in federal district court in Richmond, contends that the First Amendment prohibits Governor Youngkin, a Republican, from arbitrarily silencing Mr. Youngkin’s voice in political matters. Instead, it asks Virginia to identify the regulations that govern decisions about restoring voting rights.
Otherwise, the lawsuit says, governors can simply claim that their voting resolutions were impartial, “while secretly basing their resolution on data — or well-informed hypotheses — about the candidate’s political affiliations or views. “
Last week, U. S. District Judge John A. Gibney allowed the case to proceed, postponing a ruling on state regulations for granting clemency that are subject to judicial review until the end of hearings early next year.
The stakes are potentially high in the trial in Virginia and Kentucky. (A third state, Iowa, also gives the governor voting power, but it’s being prosecuted because an executive order restores that right to former prisoners who have served their sentences. )
More than 66,000 Virginians on parole or parole remained disenfranchised in 2022, according to the Sentencing Project, a criminal justice advocacy group.
In Kentucky, Democratic Gov. Andy Beshear signed an ordinance in 2019 that automatically restored voting rights to more than 190,000 people. But the lawsuit jeopardizes the governor’s decision to exclude more than 55,000 former prisoners who committed high-level crimes from automatic pardon. crimes such as manslaughter or were convicted outdoors in state courts.
In court arguments, the state said this summer that the only popular option for restoring voting rights to those not covered by automatic restoration is if the governor deems the candidate “worthy. “In just about 4 years, Governor Beshear has restored the rights of 60 people.
But when a criterion like “worthy” can refer to skin color, political opinions, or even deference to authority, the two lawsuits argue, it justifies a government resolution to restrict a citizen’s political rights.
Most states repair the voting rights of former prisoners or have written voting guidelines. Virginia is the only state that still puts all voting decisions in the hands of the governor, as a result of Mr. Virginia’s decision. Youngkin will abandon the auto repair policy of his Democratic predecessor, Ralph Northam.
Government attempts to silence citizens because of their opinions or behavior, commonly known as viewpoint discrimination, through the courts have long been considered offensive violations of the First Amendment. And the Supreme Court has governed that government. Officials cannot arbitrarily deny First Amendment rights.
But it remains controversial whether those legal principles apply to a governor’s resolution on voting rights. In the Kentucky lawsuit, the Sixth Circuit Court of Appeals has already ruled that’s the case. That power, the court said this summer, applies to licensing resolutions. such as granting parade permits, pardon powers of the governor. The Electoral Center plans to appeal the ruling to the Supreme Court.
Gov. Youngkin’s lawyers made the same argument in the Virginia lawsuit. State regulations for granting pardons are “rarely, if ever, subject to judicial review,” they wrote in a document filed in September.
A spokeswoman for Gov. Youngkin, Macaulay Porter, said in an email that the governor “believes strongly in the importance of immediate opportunities. “He said voting rights decisions “take into account the unique elements of the situation, practicing pardons for those in need and ensuring public safety. “
A specialist in First Amendment law, Kevin F. O’Neill of Cleveland State University School of Law, said the courts might disagree that the First Amendment protections that apply to the issues they see, such as permits for parades, also cover non-unusual issues. cases, such as a governor’s refusal to repair voting rights.
At a minimum, he said, a whistleblower would have to show that some denials of voting rights are rooted in, not just arbitrary, such as race or politics.
“Normally,” he said, “you can’t win a constitutional case based on assumptions. “
Hawkins, an ex-con in Virginia, was criminally prosecuted at age 17 after being passed off by police officers for a crowd shootout that injured him and two others. He never voted.
“I pleaded my case from beginning to end,” he said, “from the day I sentencing to the day I returned home this year. Being denied the right to vote, he said, “is like saying my sentence is not enough. “”
He added: “I don’t know now what makes me ineligible, I don’t know when I’ll be eligible. I am free, as a second-class citizen. I don’t need to remain a non-voter for the rest of my life.
Michael Wines writes about voting and other election-related topics. Since joining The Times in 1988, he has covered the Justice Department, the White House, Congress, Russia, South Africa, China and other topics. Learn more about Michael Wines
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