Terry McAuliffe was a Clinton henchman before he was governor of Virginia. He would be a Clinton henchman afterward, too, which means that he must be one during his governorship, to which end he has ordered — without legal authority — the automatic re-enfranchisement of felons stripped of their voting rights. Virginia is a swing state, Mrs. Clinton needs it, and Governor McAuliffe is therefore determined to deliver it to her.
It is difficult to say which is more woeful: McAuliffe’s cynical political calculation or the fact that it is entirely accurate.
McAuliffe is here following the example of Barack Obama, another chief executive who has attempted to use particularistic powers entrusted him in a categorical rather than discrete fashion, thereby transforming exercises in executive privilege into policy changes that would normally require changes in the law. In the case of our ever-more-imperial president, the issue was illegal immigration: The federal government is under no particular obligation to prosecute every instance of illegal immigration — prosecutorial discretion is an ordinary feature of the law — but President Obama’s general application of that discrete power amounted to a change in the law (an executive amnesty) and a usurpation of legislative authority. The matter is going to the Supreme Court; so far, the lower courts have looked upon the Obama administration’s policy adventuring with skepticism.
McAuliffe may believe that the Commonwealth of Virginia should change its law and automatically reinstate the civil rights (some of them, anyway) of felons who have completed their sentences and whatever probation or parole conditions were attached to them. He might even be right. But the Commonwealth of Virginia has not done that. Doing so would require a bill to be introduced in its state legislature, passed, and signed by the governor. No such thing has happened. The governor’s executive privileges including granting clemency in certain criminal cases and restoring the civil rights (some of them, anyway) of rehabilitated criminals on a case-by-case basis. The ability to restore a felon’s voting rights does not grant the governor the power to do so universally any more than his ability to pardon a convicted murderer empowers him to legalize murder.
Voting rights are not the only rights that felons lose, and some of their civil rights — prominently, those guaranteed under the Second Amendment — are forfeited for life with no particular controversy. But it isn’t only gun rights: Those who commit sex offenses, especially offenses against children, may find their privacy compromised and their ability to move about freely restricted indefinitely, or until such a time as their mode of transport is a pine box carried by six strong men.
We restrict the gun rights of violent criminals, including those who have (in the inescapable cliché) “paid their debt to society” because they have proved themselves to be dangerous, and therefore not to be trusted with instruments of violence. They should not be trusted with firearms, or with the ultimate instrument of violence: political power.