Control of Virginia House of Delegates Still Hangs in the Balance

After Virginia's state and local elections on November 7, there were four extremely close House of Delegates' races.  Here is what happened and the status of each of them:

• 28th District: Republican Bob Thomas led Democrat Joshua Cole by 82 votes after the election.  After a recount, Thomas' margin of victory narrowed to 73 votes.  However, Democratic voters in the district, through leading Democratic attorney Marc Elias, have filed suit regarding 147 ballots cast in the wrong district, asking for a new election.  A hearing is scheduled in this case on Friday, January 5.
• 40th District: On election night, Democrat Donte Tanner led incumbent Republican Tim Hugo by 68 votes.  During the canvass the next morning, 183 votes for Hugo were discovered that were not counted due to human error, giving Hugo a 115 vote lead.  After all votes were counted and a brief recount, Hugo won the seat by a 99-vote margin.
• 68th District: After the election, Democrat Dawn Adams led incumbent Republican G. Manoli Loupassi by 336 votes.  After a recount, the margin of Adams' victory increased to 347.
• 94th District: After Election Day, incumbent Republican David Yancey led Democrat Shelly Simonds by 12 votes, which was certified as a 10-vote lead.  
• After a recount, Simonds led by one vote, but Yancey challenged a ballot that was excluded, arguing that it should be counted.  The three-judge recount panel determined on December 20 that the ballot should be counted, resulting in a tied vote.  
• Virginia law provides for decision by lot in the event of a tie, and the Virginia State Board of Elections planned to conduct the drawing (by placing the names in two identical old film canisters and selecting one from a bowl) on December 27.  The drawing was delayed after Simonds filed a petition to reverse  the decision to count the disputed ballot.  
• On January 2, the Virginia SBE re-scheduled the drawing for tomorrow (Thursday, January 4) at 11:00 AM.
• This afternoon, the court denied Simonds' petition to have the ballot not counted, so the race remains tied.  
• After the ruling, Simonds pledged not to challenge the result of the random drawing, asking Yancey to pledge the same, which he refused.  After the refusal, Simonds also said she would keep her legal options open.

One House seat has not yet been decided (but could be tomorrow), and two are currently under litigation.  Delegates are scheduled to be sworn in for the new session on January 10.  Currently, the balance in the Virginia House is 50 Republicans to 49 Democrats, with the 94th District outstanding.  If the House is tied, the parties would have to broker a power-sharing agreement.  If the 94th is still unresolved on January 10, a Republican speaker and leadership would be elected based on the Republican majority, even if Simonds eventually wins, leading to a tied House.

What can we learn from this?  

• First, it is actually true that every vote counts.  
• Second, election integrity and smooth election administration matter.  Take the canvass in the 40th District.  Often canvasses are seemingly formulaic processes to verify the votes, but in the Hugo-Tanner race, the canvass uncovered two significant errors that completely changed the winner of the election.  These errors would not have been caught without a thorough process of double-checking the results and sharp-eyed election workers taking their jobs seriously.  
• Third, well-trainied election officials and proper election administration are key, especially in close elections.  
• Fourth, while extremely close elections and lengthy post-election procedures and litigation may seem rare, it is vital that parties and candidates be well-prepared for such events in advance of Election Day.  
• Fifth, attorneys have very important roles to play at every point of this process.  Attorneys resolved problems on Election Day, represented candidates and parties, observed the canvasses and recounts, and are litigating fast-moving cases raising novel issues of law.

We will continue to follow and report on the outcome of these races in Virginia.

The November Races in Virginia Are Tightening...

Virginia features the only race for Attorney General this year, as well as important contests for Governor and Lieutenant Governor.  This year, we need your help to ensure fair, open, and honest elections.

Two of the last three elections for Attorney General have gone to a recount. In 2005, we narrowly won; and in 2013, we narrowly lost.  This year, the polls in the statewide race are neck and neck.

Despite strong headwinds, our candidates have closed the gap, but we need help to ensure a fair election and to be prepared for a recount in one or more of the three statewide races. There are also many important races for Virginia's General Assembly where the Democrats are contesting more Republican-held seats than they have since Republicans secured their first post-Reconstruction majorities in the late 1990's.

Below is a list of statewide polls which show how close this race really is:

Statewide Polls

September 25 Wason Center (Margin +/-4)

Gillespie 41%; Northam 47%

Vogel 42%; Fairfax 46%

Adams 42%; Herring 47%

September 21 Fox News (Margin +/-4)

Gillespie 38%; Northam 42%

September 18 Suffolk University (Margin +/-4)

Gillespie 42%; Northam 42%

General Assembly Contests 

2017 - 60 Major Party Contested Seats 

Contested House Seats - 2005-2017

The RNLA is committed to ensuring that elections in Virginia remain open, fair and honest.  There will be a series of CLE trainings throughout the state, starting with a two-hour training in Washington, D.C. tonight.  For more information, or to RSVP, click here.

-Chris Marston, RNLA Virginia Chapter Chair

Why Are College Students’ Votes Worth More Than Everyone Else’s?

In the Daily Caller today, Executive Director Michael Thielen discussed the complicated issues around registering out-of-state college students to vote in battleground states. The article highlight how this issue raises gray legal and ethical issues, which are often disregarded in favor of political advantages.

[W]hy aren’t we upset when students do the same thing? Would we really accept the fact that adult commuters who work in New York and Boston and leave for their true homes on the weekends can vote in the city if it is in the strategic interest of a political party? Would we accept adults who are periodically working in a state or city voting there even when they have no real intent to live there? The answer is a resounding no. Worse, why aren’t we troubled that a political party uses students as political pawns on a regular basis?

. . . 

Legal definitions about eligibility to vote in a state vary from state to state, but state residence, domicile, inhabitance, or similar requirements usually contain the intent to live there for the foreseeable, or undetermined, future. A person who enters a state with no intent to remain usually does not meet this standard, and many college students have no intention to remain in the place they go to college. But some students do meet the legal standard, and this is why student voting location is so tricky. There is no set rule or answer for students, but the needs of a political party is not an ethical or acceptable way for a student to figure out where he or she should vote.

Americans would not be pleased if a multimillionaire politician, who owns several homes opted to register to vote in one property which happens to be in a battleground state, over his actual residence in another non-battleground state--solely based on a political factor. However, this is exactly what has happened in the past with students (and we blogged about this in 2014):

In 2008, then-Senator Obama’s campaign started a program nicknamed “float the vote”. This program involved telling students to vote where it was most politically advantageous for the Obama campaign and not where the student felt they “resided” or where they met the legal definition of residency or domicile for purposes of voter registration. This program unfortunately encouraged white lies for short-term political gain by encouraging students to state under oath that their college town was their permanent home and they intended to stay and vote. The program also undermined federal law that authorized and encouraged students who were away to vote by absentee ballot in their hometown. 

. . .

Float the vote demeaned voting from a patriotic right and duty to something strategic that included a bit of lying about where students really lived. There used to be safeguards in some states, such as Virginia, whereby students would be asked a series of simple questions when registering to see if they really resided in Virginia. This matters, in part, because there many more elections than just the Presidential election. However, Democratic Virginia Governors Tim Kaine and Terry McAuliffe appointed Democrats to the Virginia Board of Elections that eliminated these questions. McAuliffe also attempted to effectively eliminate voter registration questions on citizenship and felonies by saying those who did not answer would be automatically registered. The reason why they did so was quite simply the perception, backed up by polls, that felons, non-citizens, and students overwhelmingly vote Democrat.

The article closes on this point:

To be clear, liberals’ rhetoric about student voting has nothing to do with defending “poor students” or whether students have a right to vote and everything to do with obtaining more votes in close races. . . The Democratic Party encourages this tactic because polls show students tend to vote Democrat. It should not be contentious or controversial to say that students should have the same right to vote as everyone else, nothing more and nothing less.

Work needs to be done to reign in this behavior. It is unethical to target these students--from non-battleground states attending college in battleground states--just because their vote would have a greater impact while away at school and irrespective of where they intend to be after college. This should be a undebatable, nonpartisan issue, but sadly is not.

New Report: Thousands of Non-Citizens Voting in Virginia

Today, the Public Interest Legal Foundation released a disturbing report about non-citizens registered to vote and actually voting in Virginia:

After three lawsuits, scores of record requests, and reviews voter history files across 133 Virginia jurisdictions, the Public Interest Legal Foundation has uncovered the following:

• Virginia election officials quietly removed 5,556 voters for non-citizenship between 2011 and May 2017;

• 1,852 of those removed as noncitizens cast ballots;

• A total of 7,474 illegal ballots were cast from the pool of removed noncitizens;

• Some records of illegal voting date back to the 1980s before their respective removals;

• Virginia election officials routinely fail to alert law enforcement about these illegal votes or registrations.

“At the instruction of Governor McAuliffe’s political appointees, local election officials spent countless resources to prevent this information from spilling into the open,” PILF President and General Counsel J. Christian Adams said. “Virginia hid critical information that would have improved election integrity while a political operative-turned-governor vetoed numerous proposals that would’ve prevented alien registration and voting. From NoVa to Norfolk and all urban and rural points in between, alien voters are casting ballots with practically no legal consequences in response. 

“In this election year, aliens must not cast illegal ballots, and if they do they must be prosecuted. Let’s pray that Gov. McAuliffe’s veto pen did not invite a close election tainted by fraud,” Adams added. 

In the absence of regular data-sharing arrangements between federal officials and the Commonwealth, the ability of election officials to identify aliens on the voter rolls is almost nonexistent. The most that happens in Virginia is that an alien on the voter rolls will sometimes tell the state DMV they are not a citizen. Without those leads, counties and municipalities must accept false claims of citizenship on their face.

This report gives lie to those who claim that there is no problem with ineligible voters voting and determining the outcomes of elections.  In addition to other close races detailed in the full report (page 12), the winner of the 2013 attorney general election was determined by just 907 votes statewide.  As PILF noted, the methods for removing non-citizens from the voter registration rolls are far from effective or complete and the existing methods are rarely followed.  So there are likely far more non-citizens registered to vote and additional votes by non-citizens that PILF was unable to identify through their data review.  

This problem is duplicated in nearly every state across the country but has largely not been studied because it requires a tremendous amount of time and resources.  Sadly, PILF had to litigate against local election officials who refused to disclose voter registration data as required by the NVRA.  We can only hope that President Trump's Presidential Advisory Commission on Election Integrity can conduct or prompt similar studies in a number of states and that state and local officials will cooperate, as required by law, in efforts to improve the accuracy of voter registration rolls.

Status of Voter ID Laws after 2016

2016 was a remarkable year in many ways, not least of which was the number of court decisions on voter ID laws.  What is the state of the law on the validity of voter ID requirements after 2016?:

Rule One: Voter ID, by itself, is presumptively valid. In the immediate post-HAVA era, new photo ID laws were seen as a threat and drew litigation challenges accordingly. Over time, however, courts – including the U.S. Supreme Court in the 2008 Crawford case – came to accept voter ID and uphold it against what lawyers call “facial” challenges; i.e., challenges to its mere existence. More specifically, courts are accepting states’ proffered justifications of fraud prevention and are finding that ID laws, by themselves, are not an undue burden on voters. In 2017 and beyond, therefore, any plaintiff challenging a new or existing voter ID law will have to do more than simply allege discrimination and/or limitation of voting rights to prevail. 

Rule Two: legislative intent behind voter ID matters. That said, general judicial acceptance of voter ID laws erodes quickly if there is evidence of actual discriminatory intent behind their enactment. In 2016, federal appeals courts blocked election laws in Texas and North Carolina because of evidence that legislators in both states had consulted, and may have relied upon, data suggesting those laws would disproportionately affect protected minorities under the Voting Rights Act. Going forward, any legislature seeking to enact or expand voter ID laws will be closely scrutinized to ensure that similar discriminatory intent is not motivating those laws. Note, however, that plaintiffs challenging such laws may no longer be able to count on support from the U.S. Department of Justice under the new Administration. 

Rule Three: whether and how voters without ID can get it is crucial. While facial challenges to voter ID laws are likely to fail, recent experience suggests that an “as-applied” challenge focused on the implementation of these laws has more likelihood of success. State and federal courts have been very clear that voter ID requirements begin to lose their presumption of validity when evidence suggests that voters without ID can’t actually get it. These fights can be intensely detailed; in Wisconsin, courts temporarily halted implementation of ID laws because of deficiencies at the state DMV in training staff to assist voters with obtaining ID, and in Texas the instructions to poll workers about what kind of ID could be required were subjected to direct oversight by the court. In this environment, the voter ID fight isn’t about sweeping legal issues but rather the nitty-gritty of implementation. 

What does this mean for voter ID going forward? I think it’s pretty straightforward: legislatures are likely free to enact such laws if they have the votes, but there must be no evidence of discriminatory intent and implementation matters; in other words, it isn’t enough to simply say voters will be allowed to get free IDs – there has to be an actual plan. In this environment, theoretical legal arguments about the constitutionality of ID laws are most powerful during legislative debate but are unlikely to succeed in court. The real fight is over intent and what happens after enactment. Proponents and opponents alike would be well-advised to put less emphasis on legal research and more on data gathering.

We are hopeful that some of the bad decisions on voter ID will be overturned in 2017.  Here are some of the notable voter ID stories from 2016:

• Fourth Circuit upheld Virginia's voter ID law
• Missouri voters passed a constitutional amendment allowing the state to require photo voter ID with 63% voting in favor
• Fourth Circuit struck down North Carolina's voter ID law; appeal to the Supreme Court is likely
• Fifth Circuit required Texas to modify its voter ID law; petition for writ of certiorari pending at the Supreme Court
• Multiple challenges to Wisconsin's voter ID law are ongoing
• A study exposed the inflated, faulty statistics repeatedly cited by voter ID opponents

4th Circuit Upheld Virginia Voter ID Law

Tuesday, a unanimous three-judge panel of the Fourth Circuit Court of Appeals upheld Virginia's voter ID law:

In Lee v. Virginia State Board of Elections, the court held that not only does the photo-ID law “not impose an undue burden on minority voting, there was no evidence to suggest racially discriminatory intent in the law’s enactment.” Therefore, there was no violation of Section 2 of the Voting Rights Act and no constitutional violation either. 

The court’s description of the evidence presented by Elias and the plaintiffs shows just how frivolous this case was. Elias produced 14 “voter-witnesses” to support the Democratic party’s claims, yet as the district court found, “none of the voter witnesses was actually denied his or her right to vote.” In other words, out of the more than 5.6 million registered voters in Virginia, the Democratic party couldn’t find a single one who was unable to vote because of the law. So much for the Left’s constantly repeated theme that voter-ID laws “suppress” votes. . . .  

The evidence that the Virginia legislature passed the ID law with the intent to discriminate was almost equally pathetic. . . . Moreover, the court observed, the ID-law was passed “through the normal legislative process, and that process was unaccompanied by any facts or circumstances suggesting the presence of racially discriminatory intent.” This made the Virginia legislative process “in no way like” the process in North Carolina over its voter-ID law, which a different panel of the Fourth Circuit held as invalid in July in NAACP v. McCrory. Thus, this panel did not have to follow the other Fourth Circuit panel’s decision over the North Carolina law. . . . 

One final note. Those opposed to voter-ID laws consistently claim that huge numbers of American voters have no ID and no ability to get one. Yet when it comes to actually producing evidence to support that claim, opponents always fall short. In fact, in this lawsuit, they couldn’t produce a single Virginian who didn’t have an ID or who couldn’t easily get the free ID provided by the state.

The entire decision is well worth reading.  The Fourth Circuit rightly recognized, as the Supreme Court said in Crawford v. Marion County Election Board, that inconveniences do not constitute a substantial burden on the right to vote, especially when a state is attempting to protect the integrity of its elections and has taken steps to ensure that no eligible voter loses the opportunity to vote.

Even a Liberal Democrat "Expert" Agrees - Virginia's Latest Effort at Vote Fraud Goes Too Far

What won’t Virginia Democrats do to promote vote fraud in Virginia?  Unconstitutional orders to enfranchise felons, including those in half way houses or prisons in other states; encouraging election officials to not ask for citizenship or felon status; refusing to clean up the voting rolls; and now allowing “selfies” (a self-portrait photograph, typically taken with a digital camera or camera phone held in the hand) of ballots, via a last-minute Advisory Opinion from the Attorney General.

  

Why is this another tool for vote fraud?  It could lead to vote buying and coercion.  Let’s quote an “election law expert” regarding an election selfie case in New Hampshire:

Similarly, the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.  [A] picture of a valid voted ballot, unlike a simple expression of how someone voted, is unique in being able to prove how someone voted.  

Indeed, it is hard to imagine a more narrowly tailored law to prevent vote buying. Tell the world you voted for Trump! Use skywriting. Scream it to the heavens. We just won’t give you the tools to sell your vote or get forced to vote one way or another.  

The social-media age gives people plenty of tools for political self-expression. New Hampshire’s law is a modest way to make sure that this patriotic expression does not give anyone the tools to corrupt the voting process.

The expert quoted - Hans von Spakovsky of Heritage?  Ex-DOJ Official Christian Adams?  Another conservative?  Nope, it is noted Democrat party supporter/advocate and Election Law Professor Rick Hasen of Election Law blog.  Of course, since the article was written in 2015 and the current issue is in a target state during an election, Hasen has merely posted links on his blog and remained relatively silent.  Hopefully, Hasen will stand up strongly and decry the Virginia Attorney General's Advisory Opinion and the potential for fraud it creates:

The change certainly opens the door to “vote-buying fraud” and it impacts the privacy of other voters and election workers just who happen to be around the camera.  More importantly, election officials have long warned that allowing voters to take a selfie of their ballot during the voting process will cause long lines of voters waiting to vote, all waiting until the “utter foolishness” plays itself out.

It would be nice if Democrats interested in election administration would just once practice what they preach.  

Democrats Fighting for Zombies, While Republicans Try to Protect the Living

There are problems with the dead registering in Virginia and voting in Colorado and California.  The most common way that the dead are fraudulently "voting" is via absentee ballot.  It is hard for zombies to actually get the polls.  The respective parties could not take a more radically different approach. 

Republicans like those in Virginia have proposed making absentee ballots less susceptible to fraud by measures such as 2015’s HB1318, which stated:

Applications for absentee ballots; photo identification required. Requires that any voter submitting his application for an absentee ballot by mail or by electronic or telephonic transmission to a facsimile device shall submit with his application a copy of one of the forms of identification acceptable under current law. The bill exempts from this requirement military and overseas voters and persons with a disability. Currently, only a voter who completes his application for an absentee ballot in person is required to show a form of identification.

This was vetoed by former DNC Chair and friend of the Clinton’s, Governor Terry McAuliffe. 

Democrats on other side continue in their efforts to bring chaos and discord to the election process regarding absentee ballots.  As the nonpartisan Lawyers Democracy Fund describes it:

The Tampa Bay Times reports that the Democratic Party has filed a lawsuit against Florida on equal protection grounds to remove a key integrity check of Florida’s mail voting process. The signature review requires a comparison of the mail ballot signature and the registration signature on file by the Florida Supervisor of Elections. If the signatures do not match, the ballot is rejected. The plaintiffs seek a last minute judicially created cure period for only some of these non-signature match voters because the truly absent voters or military overseas voters would not have an opportunity to update their signature. The lawsuit comes less than 35 days prior to the November 8 Presidential Election with millions of ballots already being mailed to voters. The current mail ballot rules have been in place for years, and mail ballots have already been sent to tens of thousands of overseas and military voters.  Absentee or mail balloting is already vulnerable to fraud and abuse without an ID requirement. Removing one of the key integrity measures increases the likelihood of potential fraud.  

So in a nutshell, the Democrats are supporting efforts to disenfranchise legal voters through vote fraud; Democrats are trying to take away even the few safeguards there are for absentee ballots.  Zombies or the dead are not a protected class under the Constitution and should not have their votes counted. 

Lawsuit Finds Non-citizen Voters in VA; Democrats Try to Cover Up

The Public Interest Legal Foundation has discovered that hundreds of non-citizens were removed from the voter registration rolls in Alexandria, Virginia.  The city refuses to disclose whether any of those non-citizens voted in any elections and it is unclear whether the city has forwarded the names to law enforcement authorities:

[T]he Virginia Voters Alliance and a Virginia voter (David Norcross) filed a lawsuit against the city of Alexandria, Va., claiming that the general registrar, Anna Leider, was violating the National Voter Registration Act (NVRA).  The lawsuit charged that Leider failed to make her records related to the city’s voter-list maintenance procedures available for public inspection, which would obviously include all information about the removal of ineligible voters. . . . As a result of the lawsuit, the Alliance was finally able to get into Leider’s office and inspect the voter registration records. Among the items they discovered was a list containing several hundred registrants who had been removed from the voter rolls because they were not U.S. citizens. . . . 

The Alliance was not able to determine exactly how many of those non-citizens had illegally voted before being dropped from the voter list. In a letter to the Public Interest Legal Foundation, the city’s attorney subsequently claimed that the voter history of non-citizens who are removed from the voter rolls is not subject to the public records inspection provision of the NVRA. In other words, they are trying to hide whether non-citizens illegally voted. 

Whether Alexandria notified law-enforcement officials is unclear. The city’s attorney says there were some “communications to and from the Commonwealth’s Attorney’s office,” but no records concerning those communications have been released. That response indicates that the city did not turn over any records to federal authorities.

This is a problem throughout Virginia, but perhaps the most disturbing part of this story is that Virginia's election officials seem not to care that hundreds of non-citizens are registered to vote and may have voted:

Numerous other Virginia counties have refused to provide this information to the Public Interest Legal Foundation, apparently based on instructions from the State Board of Elections and individuals working for the state Department of Elections, which the Board supervises. This is what a cover-up directed by state election officials looks like. They are trying to hide hundreds, if not thousands, of instances of voter fraud that occurred on their watch. . . . 

So the next time someone tells you that we shouldn’t be concerned about voter fraud, think about the hundreds of non-citizens who have apparently illegally registered and who may have even voted in elections in the Commonwealth of Virginia. They may have been removed from the voter rolls but so far none of them has been prosecuted for violating the law. Worse, these aliens were only detected because they sought to renew their driver’s licenses and told the truth the second time when they admitted to the Virginia Department of Motor Vehicles that they were not citizens. 

We have no idea how many other non-citizens remain undetected in the voter rolls of Virginia, a purple state where the outcome of the November election is still in doubt, and where the state takes no steps of any kind to verify the citizenship status of voter registrants. It is a state where the controlling members of the State Board of Elections obviously see nothing wrong with violating federal public records law, attempting to conceal illegal registration and voting, and seem to have no interest in taking any steps to prosecute those who have violated some of our most fundamental protections intended to preserve the integrity of our election process.

We applaud the Virginia Voters Alliance and the Public Interest Legal Foundation for endeavoring to protect the integrity of Virginia's elections and ensure that election officials follow the law.

Motion for Contempt Against McAuliffe for Defying Felon Voting Rights Restoration Order

Yesterday, Republican members of the Virginia General Assembly filed a motion for contempt against Gov. Terry McAuliffe for defying the Virginia Supreme Court's mandamus order that invalidated McAuliffe's executive orders that purported to restore voting rights to convicted felons on a blanket basis (internal citations omitted):

Petitioners respectfully request that the Court order Respondents to show cause why they should not be held in contempt for defying the writ of mandamus that this Court issued on July 22, 2016. 

The Court struck down three executive orders restoring political rights to all felons who had completed their terms of incarceration and supervised release, holding that the Governor had unconstitutionally suspended the felon-disenfranchisement provision of Article II, Section 1 for “an indiscriminately configured class of approximately 206,000 convicted felons, without any regard for their individual circumstances and without any specific request by individuals seeking such relief.” Governor McAuliffe immediately denounced this Court’s decision, vowing to accomplish precisely the same result simply by issuing individual restoration orders for precisely the same class of approximately 206,000 felons, again without any regard for their individual circumstances and without any specific request by individuals seeking such relief. . . . 

On Monday, August 22, 2016, Governor McAuliffe announced that he had issued individual restoration orders to the approximately 13,000 felons who had registered to vote pursuant to his earlier unconstitutional executive orders, notwithstanding this Court’s order cancelling their registrations. The Governor also announced that he will issue new restoration orders to the remaining approximately 200,000 felons who meet the same criteria set forth in his invalidated April 22 executive order—that is, those who have completed their terms of incarceration and supervised release. . . .  

There is no substantive difference between the Governor’s current actions and his three executive orders suspending Article II, Section 1, that this Court invalidated in its mandamus decision. . . .

The motion points out that more than the issue of felon voting rights restoration is at stake in Gov. McAuliffe's actions; he threatens the rule of law by purporting to set himself above the law:

The Governor has openly declared his resolve to evade the Court’s order. The same day that the Court issued the writ, Governor McAuliffe proclaimed that “the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights” and announced that he simply “cannot accept” the Court’s ruling. . . . And he announced that he and the other Respondents will evade the Court’s decision prohibiting him from restoring the rights of this “indiscriminately configured class” of over 200,000 felons, stating: “At the end of the day, you’ve got to do what you’ve got to do. . . . [B]y two weeks [from now], all 206,000 [felons] will have their rights back.”  

In announcing last week his new plan to unilaterally re-enfranchise 206,000 felons, Governor McAuliffe again expressed his disdain for this Court’s decision. He claimed that “the Court dismissed the clear text of the Constitution,” and instead based its holding solely on “the way things have always been done in the Old Dominion.” . . . And most importantly, while claiming to be acting in conformity with this Court’s decision, the Governor emphasized that he “remain[s] resolute in [his] commitment,” to override the Constitution’s felon disenfranchisement provision by again restoring voting rights to approximately 206,000 felons who have completed their sentences and periods of supervised release, notwithstanding this Court’s order prohibiting Respondents from doing just that . . . .  

Governor McAuliffe is entitled to disagree with our Constitution and with this Court’s rulings interpreting it, but “[i]t is not for him to set himself above the law and go his own way because he deems the law’s requirements to be unwise or its restraints vexatious. In such manner does a government of laws become a government of men.” 

We applaud the Republican members of the Virginia General Assembly for standing up for the rule of law, for the text of the Virginia Constitution, and for the integrity of Virginia's elections. 

VA Supreme Court Strikes Down McAuliffe's Blanket Restoration of Felon Voting Rights

Today, the Virginia Supreme Court struck down Gov. Terry McAuliffe's order that restored voting rights to over 200,000 convicted felons.  The court found it was unconstitutional because it re-wrote the Virginia Constitution:

In a 4-3 decision, the Court said it “respectfully disagrees” with Mr. McAuliffe’s position that he has the executive power to make such a sweeping move. . . . The court ordered the cancellation of registration of all voters convicted of a felony who registered under the governor’s executive orders by Aug. 25. 

Chief Justice Donald Lemons issued the majority opinion, which said that Mr. McAuliffe’s executive orders had revised a section of the state constitution. 

The ruling said Mr. McAuliffe lacked the power to issue a clemency order “to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request.” 

Justice Lemons cited Virginia’s tradition of “cautious and incremental approach to any expansions of the executive power,” writing that the framers in 1776 were skeptical of “the unfettered exercise of executive power.”

We applaud the Virginia Supreme Court for upholding the rule of law in Virginia. 

Update from Del. Rob Bell on Virginia Felon Voting Litigation

Yesterday, Delegate Rob Bell shared insights into the litigation challenging Governor Terry McAuliffe's blanket restoration of felon voting rights with RNLA lawyer volunteers.  We have covered Gov. McAuliffe's order and its aftermath here, here, here, and here.

Del. Bell discussed the order, the preparation for litigation, and likely outcomes:

• Since 1870, the Virginia Constitution has allowed the governor to restore voting rights to felons and governors have, but it has always been done on an individual, case-by-case basis.  Previous governors' legal teams, both Republican and Democrat, concluded that it had to be done that way.
• McAuliffe's order restored rights to any felon who has completed his or her sentence and finished supervised release, regardless of the crime committed.
• A particular concern is the effect on jury trials, because in criminal trials, the verdict must be unanimous.
• In preparation for trial, the legislature hired Cooper & Kirk.  Finding plaintiffs was the hardest part, but they found named plaintiffs at the Clifton Republican women’s club.  
• In terms of timing, mid-August is drop-dead date because of absentee ballots being printed.  Because of this, they took the case straight to the Supreme Court.  The Court agreed to special session for first time since 1993, and the case will be heard on July 19.
• 6,000 felons have already registered to vote.  If the restoration order is invalidated, then the governor could still restore voting rights one by one.
• The strongest argument is one of statutory interpretation: the blanket restoration allows one constitutional provision to survive while another becomes a nullity.  
• A bipartisan group of 43 Commonwealth Attorneys (representing 60% of citizens) filed an amicus brief on behalf of plaintiffs.  If there had been more time, many more would have joined.
• There is now a second lawsuit challenging the order filed in circuit court and asking for an injunction.  
• There are two concerns – the Court rules against the plaintiffs or finds a way to dodge the case (standing, needing evidentiary rulings at circuit court, etc.).  Since there’s another case in circuit court, the Supreme Court will likely take up the case now.
• In terms of standing, the cause of action is based on a vote dilution claim.  
• The list of felons to whom rights have been restored has turned out to be a mess.  There are numerous people on the list who shouldn’t be on the list, and at this point the governor can’t fix it; only a court can fix it.

This year's Ed Meese Award winner, Chuck Cooper, will be discussing this litigation on the opening panel at the National Election Law Seminar on August 12-13.

“Crooked Hillary” Crony McAuliffe Earns a Trip to the Virginia Supreme Court

Breaking news today: Virginia Delegate Rob Bell shared an update on the now pending litigation with regard to Governor Terry McAuliffe’s unconstitutional blanket reinstatement of all felon’s voting rights just prior to the presidential election. The Virginia Supreme Court announced that it will hold a special session to hear the suit. The petition can be found here: Howell v. McAuliffe. We discussed the pending suit last week as well as the fact that McAuliffe has recently come under investigation by the FBI for questionable donations to his gubernatorial campaign. 

The email detailed a few keypoints about the Governor’s actions and their likely impact.

[T]he Governor's order is continuing to cause (what are hopefully) unintended consequences. Because the order restores the right to sit on juries, a Dinwiddie defendant accused of murdering a state trooper is arguing that such felons must be included in his jury pool.  Prosecutors in Loudoun and Fauquier have asked Governor McAuliffe for a list of the restored felons so they could strike them from juries hearing cases of similar crimes.  McAuliffe refused to release the list and even rejected a follow-up FOIA request.

By treating all felons exactly the same, McAuliffe’s order didn't consider the violence of each offense or whether the offender finished paying his victim’s medical bills. Legal advisors to Governor Kaine and Governor McDonnell explicitly rejected the Constitutionality of such a blanket restoration. 

Bell points out the glaring concerns for the judicial system. Allowing murders and rapists to be on a jury for a murder or rape case is quite frankly obscene and defies all levels of reasonableness and logic. The case is scheduled to be heard on July 19, 2016, at 9:00 AM.

Executive Overreach Creeps into Virginia

A “Crooked Hillary” lackey, Virginia Gov. Terry McAuliffe, is having a rough week and it’s mostly self-inflicted. The Governor has recently come under investigation by the FBI for donations to his gubernatorial campaign (more on that in a later post).

As if that was not enough for a bad day, McAuliffe is also facing a lawsuit that was filed in the Virginia Supreme Court today challenging the constitutionality of using an executive action to restore voting rights to felons en masse:

  

Republicans in the Virginia General Assembly will file suit today in the Supreme Court of Virginia challenging Gov. Terry McAuliffe's authority to order a mass restoration of rights April 22, covering more than 200,000 felons who have served their time.

"The Constitution of Virginia forbids this unprecedented assertion of executive authority," the filing states. "Governor McAuliffe’s executive order defies the plain text of the Constitution, flouts the separation of powers, and has no precedent in the annals of Virginia history. The governor simply may not, with a stroke of the pen, unilaterally suspend and amend the Constitution."

McAuliffe's order came just days after the General Assembly wrapped up the 2016 legislative session, has the potential to expand the state's voter rolls by up to 3.8 percent.

Chuck Cooper, the attorney for Republicans filing the suit, said the plaintiffs are making a direct appeal to the state's highest court because "time is of the essence...the governor issued the order in time for thousands and thousands of felons to register and ultimately vote in November elections, but that isn't enough time to litigate a case in the normal course of the trial courts of the commonwealth."

In a statement, [Speaker of the House William J.] Howell, who has clashed frequently with McAuliffe during his term over Medicaid expansion, gun control and most recently judicial selection for the Supreme Court of Virginia, said legislators "simply cannot ignore this unprecedented executive overreach.”

Given the current FBI investigation, the lawsuit, and even further allegations of wrong doing, one need not infer the Governor’s motive, as his actions speak directly to it. The unconstitutional executive action was taken for one reason alone: adding Virginia’s felon voters to the rolls in time for the presidential election. Voters that statistically will likely support “Crooked Hillary” for President. 

Virginia Voter ID Law Upheld

A federal judge has just upheld Virginia’s voter ID law. This decision serves as yet another devastating judicial haymaker for opponents of common sense voter ID laws across the country.

"Mindful that the court's mission is to judge not the wisdom of the Virginia voter ID law, but rather its constitutionality, this court cannot say that plaintiffs have met their burden of proof in showing by a preponderance of the evidence that the Virginia voter ID law ... contravenes the Voting Rights Act, the First Amendment, the Fourteenth Amendment, the Fifteenth Amendment, or the Twenty-Sixth Amendment," U.S. District Judge Henry E. Hudson wrote Thursday.

Hudson's ruling concluded: "While the merits of this voter identification law, and indeed all aspects of Virginia's voting regime, can be reasonably debated, it remains true that Virginia has created a scheme of laws to accommodate all people in their right to vote. From in-person voting, to an absentee option, to provisional ballots with the ability to cure, and the provision of free voter IDs, Virginia has provided all of its citizens with an equal opportunity to participate in the electoral process."

Simply stated, the law was found to be firm, fair, and consistent to all voters of the state. It protects the integrity of Virginia elections and ensures that all citizens have an equal opportunity to have their voice be heard. Judge Hudson took a minute to clarify the question presented in the case.

The judge added, "The evidence also revealed that the Virginia voter ID law has created a layer of inconvenience for some voters. But the question squarely presented in this case is whether (the law) is unconstitutional either in its adoption, implementation, or enforcement. Does it, by design or otherwise, adversely affect the opportunity of minorities to vote or is the burden evenly spread?"

The short answer, No. The stakes involved in the selection of our leaders are too significant to leave susceptible to fraud. The ability to ensure an election is free of vote fraud is crucial to voter confidence. Once again, the Court has found that mere inconvenience to a select few, inconvenience that we as citizens are all already subject to, will never outweigh the need for the absolute integrity of our election system.

The Immoral and Unconstitional Act of Governor McAuliffe

A Friday afternoon a few weeks back, Virginia Governor Terry McAuliffe made an unprecedented and likely unconstitutional “executive order” allowing felons to vote.  As National Review wrote:

In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.

Today, Christian Adams laid out the moral case against felon voting:

Giving violent felons the automatic right to vote is not morally defensible. Violent criminals who have shown contempt for other members of society and our laws should not have a voice in the process of writing laws. When a violent felon helps to choose lawmakers, laws will invariably skew more toward the criminal to the detriment of the law-abiding citizen.

Adams adds more details but the moral is simple: Governor Terry McAuliffe will do anything to elect his his friend Hillary President, constitutions and morals be dammed. 

Will McAuliffe’s Fourth Try at Vote Fraud for Virginia Succeed? (Part 1)

Virginia Governor Terry McAuliffe is a former DNC Chair under President Bill Clinton.  As a former DNC Chair, he knows a thing or two about vote fraud and stealing elections for Democrats.  Last Friday, he took the unprecedented step of signing a possibly unconstitutional order (more on that in part II) allowing felons to vote in Virginia, including those convicted of murder, rape, and other violent crimes. 

This is just the latest effort by McAuliffe to win elections by means other than the voters.  To review:

1.  Before he was even elected, McAuliffe’s legal team fought to keep ineligible voters on the rolls in heavily Democrat Fairfax County, Virginia:

Virginia officials counted 7,934 duplicate names on the Fairfax County voter rolls, and the Democratic lawsuit asks that every one of those be allowed to cast a ballot on Nov. 5. We suggest that Mr. McAuliffe court eligible Virginians, and leave be the Virginians who have moved on. Any dead ones, too. They don’t really have much interest now in what goes on in Richmond.

Not only did the courts reject this effort but also, just a few months later, President Obama’s Commission on Election Administration advocated for just this kind of list clean up. 

2.  McAuliffe nominated a Democrat to the Republican slot for the Virginia Board of Elections:

Matthew Gray was nominated by the Governor despite having no experience that we know of in Election Administration.  He is currently working for the Humane Society.

. . .  Gary seemly “earned” his nomination by being a Democrat who once supported John McCain in 2008.  The later allowed the former DNC Chair Terry McAuliffe with a straight face to nominate the Democrat primary voter Gray to the REPUBLICAN position on the Virginia Board of Elections.  (Virginia does not have party ID to vote and both parties generally identify their members by primary voting.)

This is just the latest example of the efforts of Democrats and the left to further politicize elections by appointing unqualified hacks to administer elections.

According to a story we will not link in the Washington Post, Gary withdrew his name under pressure from Republicans.   

3.  Of course, this is not even the first time that Governor McAuliffe tried to “restore” felon rights.  In July of 2015 he tried to make felons eligible by omission of answering questions regarding eligibility to vote:

The board is considering allowing people registering to vote to skip several questions on the application, including those asking whether those registering are U.S. citizens or felons whose voting rights have not been restored. . . . Currently, registrars can reject would-be voters if they do not check boxes to indicate their citizenship and felon status.

The proposal was met Tuesday with nearly universal skepticism — from registrars and elections officials with practical concerns, and from politicians and ordinary Virginians with big-picture worries that play into the nation’s fiercest political debates.

Illegal immigration, voter fraud and the restoration of felons’ right to vote — even the usurpation of legislative power by an overbearing executive branch — all loomed large over an hour-long hearing to discuss a seemingly arcane administrative matter.

In other words, this order he signed is just the latest effort by Governor McAuliffe to steal the election for his close friend Hillary Clinton.  We can only hope for the integrity of the election that this effort fails as well.  

Virginia Voter ID Trial Testimony - Voter ID Does Not Disenfranchise Voters

Testimony in the Virginia voter ID law trial concluded last week. The law's challengers struggled to produce an iota of evidence in support of the claim that the law disenfranchised potential voters, and the defense presented contrary evidence. When former election officials in VA were asked about how many voters they had seen disenfranchised since the law was in enacted in 2013, the response was unquestionably clear:

“None,” said Cameron Quinn, a former state elections official who from 2011 until last year was the general registrar for Fairfax County, testifying in the sixth day of a trial before U.S. District Judge Henry E. Hudson in a lawsuit filed by the Democratic Party of Virginia and two voters challenging the state law. Fairfax is the state’s largest jurisdiction and has 700,000 registered voters.

Justin Riemer, a former member of the Virginia State Board of Elections and Donald Palmer, the former secretary of the board, also testified Tuesday that they were not aware of anyone unable to vote because of the photo requirement. 

To make matters worse for the plaintiffs, several witnesses spoke directly against assertions that the purpose of the law was to suppress votes by minority and young voters:

[ . . . ] Karen L. Owen, an assistant professor of public administration at Reinhardt University in Georgia, offered alternative reasons for why General Assembly members may have voted for the law. 

She said legislators may have considered broad public support for a voter identification law, citing polls from the Pew Research Center and Quinnipiac University; were responding to constituents’ concerns about voter fraud; hoped to ensure public confidence in ballots that were cast; sought to enact a best practice; or wanted to prevent voting fraud. 

Daniel J. Palazzolo, a professor of political science at the University of Richmond, similarly testified that there was not enough evidence to conclude that the law was passed to suppress minority votes.

As we continue to move through these unnecessary trials, the presidential primary is seeing significant spikes in voter turnout across the country. One thing has become abundantly clear: the left’s claims of disenfranchisement are beyond grossly exaggerated.

Voter ID on Super Tuesday - Record Turnouts Despite Voter ID Laws

The opponents of voter ID are eerily silent after record-setting turnouts occurred yesterday in states with voter ID laws. It’s now exceptionally clear that the alleged claims of mass voter disenfranchisement are overstated fiction. The five Super Tuesday states with voter ID laws -- Alabama, Georgia, Tennessee, Texas, and Virginia -- experienced record-breaking turnouts.

Alabama anticipated high turnout, and it was high:

"We expect [turnout] to be as high as 750,000 people in the Republican primary and 350,000 in the Democratic primary," [Secretary of State John] Merrill said. Turnout could be "higher than every election that we've seen since 2000, with exception of the 2008 race, where it was a very competitive Republican primary" and then-presidential candidate Barack Obama boosted turnout in the Democratic primary, he added.

Georgia, Tennessee, and Texas also experienced much higher than average primary turnout.  Virginia had 30% of eligible voters cast a ballot in the primary:

Elections officials say turnout in Virginia's Republican presidential primary was substantially higher than it was in 2008, the last primary in which no incumbents were running.

The Virginia Department of Elections said approximate figures late Tuesday show that about 800,000 Virginians cast votes in the Republican presidential primary. About 575,000 people voted in the Democratic primary.    

In 2008, roughly 489,000 people voted in the Republican primary, while about 986,000 people cast votes in the Democratic race.

The left's claims of confusion and mass disenfranchisement if voter ID laws are passed should now fall on deaf ears. On Super Tuesday, voters turned out, disenfranchisement was non-existent, and electoral integrity took a huge step forward. The left will likely continue to assert absurd claims of voters being disenfranchised but, on the heels of many record-setting primaries in states utilizing voter ID, everyone should know better.

Five Super Tuesday States Are Protecting the Integrity of Elections with Voter ID Laws

It is “Super Tuesday.” Five out of the thirteen states voting in the presidential primary today will do so requiring at least some type of voter identification: Alabama, Georgia, Tennessee, Texas, and Virginia. 

Given the issues that have already occurred during this presidential cycle (Iowa, New Hampshire), it is hard to imagine why the laws themselves are being targeted by the left, especially since voter turnout has continued to soar this cycle. Currently, 17 states have not established some sort of identity verification in order to vote. 

Nonetheless, the Virginia Voter ID law is still under fire:

Last year, the Democratic Party of Virginia filed suit challenging the 2013 law requiring voters to show photo identification at the polls. They said the law illegally depresses minority and young people voting.

Monday in federal court in Richmond, a black woman who grew up in a small, segregated town wept on the witness stand as she testified about the trouble she had voting in the 2014 election in Virginia.    

Josephine Okiakpe, 69, said she produced several forms of identification, but did not have a photo ID that was considered acceptable. She cried as she recalled others looking at her and snickering, leaving her upset and frustrated.

She was given a provisional ballot, which ultimately was counted, but said the experience undermined her confidence in the way Virginia conducts elections.

It’s unfortunate that people were unkind to Ms. Okiakpe; however, as the lead witness in this case, she was still able to vote via provisional ballot. She was not disenfranchised, which is the main argument of voter ID opponents against voter ID laws.  Moreover, the integrity of the election was maintained. The exaggerated claims of mass disenfranchisement have yet to be substantiated in any of these suits challenging voter ID laws. 

The trial in the challenge to Virginia's voter ID law is ongoing.