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.