Republicans plan to sue McAuliffe over order restoring rights to felons

“It is the obligation of the legislative and judicial branches to serve as a check on overreaches of executive power,” House of Delegates Speaker William J. Howell, R-Stafford, said in a news release.

“To that end, we are prepared to uphold the Constitution of Virginia and the rule of law by challenging Governor McAuliffe’s order in court.”

Cooper, who defended California’s ban on same-sex marriage before the U.S. Supreme Court in 2013, is a former partner in the D.C. office of McGuireWoods. He practices civil litigation at Cooper & Kirk PLLC, a Washington-based firm he helped found in 1996.

“We have retained Mr. Cooper to examine the legal options to remedy this Washington-style overreach by the executive branch,” said Senate Majority Leader Thomas K. Norment Jr., R-James City. “Mr. Cooper is an extremely qualified attorney, and we have every confidence he will proceed prudently, judiciously and expeditiously.”

Taxpayer funds will not be used to fund a lawsuit, Republicans said.

McAuliffe has said he has the legal and constitutional authority to restore voting and civil rights for all felons who had completed their sentences, probation and parole by April 22.

McAuliffe spokesman Brian Coy said Monday that the governor is “disappointed that Republicans would go to such lengths to continue locking people who have served their time out of their democracy.”

“These Virginians are qualified to vote and they deserve a voice, not more partisan schemes to disenfranchise them,” Coy said.

The specific plan of attack against the order is unclear. Two key issues will be finding a plaintiff and determining the proper legal venue.

A challenge likely would focus on whether McAuliffe has the authority to go further than previous governors by restoring rights for nonviolent and violent felons en masse rather than doing so on an individual, case-by-case basis.

McAuliffe has highlighted language in the Virginia Constitution that grants the governor power to “remove political disabilities” for felony convictions. Constitutional expert A.E. Dick Howard has backed McAuliffe and says the executive branch has unqualified authority on the matter.

To argue the governor must follow a more individualized process, a legal challenge could point to other constitutional language that says no “person” convicted of a felony can vote unless “his” civil rights have been restored.

An advisory committee convened by then-Attorney General Ken Cuccinelli reported in 2013 that governors lack the power to enact “automatic, self-executing restoration of rights” for all felons.

“While the Constitution of Virginia does confer on the governor the power ‘to remove political disabilities consequent upon conviction for offenses,’ a court likely would find it difficult to sustain a governor’s exercise of this clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided,” the committee wrote in its report.

McAuliffe’s order does not create an automatic restoration of rights.

Going forward, he plans to sign similar orders monthly to restore rights for those transitioning out of the criminal justice system.

Republicans have argued that McAuliffe overstepped by issuing a blanket order that applies to all ex-offenders regardless of whether they submitted an application.

Coming in a presidential election year, Republicans have accused McAuliffe of playing politics by adding thousands of likely Democratic voters to the rolls as a boost to longtime friend Hillary Clinton, who is seeking the party’s presidential nomination.

McAuliffe’s order has received national acclaim in progressive circles.

Supporters have applauded the order as a bold move that does away with a restriction that disproportionately impacts African-Americans and brings Virginia more in line with policies of other states.