RICHMOND – Analysis of a newly released list of Virginia felons who had their right to vote restored, then pulled again, indicates a heavy concentration in cities that lean Democratic at the ballot box.
Put another way: When Republicans said Gov. Terry McAuliffe's mass restoration order would help Hillary Clinton get elected if it stood, they were probably onto something. Per-capita calculations on felons whose rights were restored, and who then registered to vote, show Portsmouth, Richmond and Petersburg with the highest rates in the state, according to the Virginia Public Access Project.
All three cities went heavily for President Barack Obama in 2012. All three have majority minority populations.
Higher impact in cities is likely due partly to efforts from voter registration groups who didn't have a list of restored felons but often concentrate their work in urban areas. Media coverage, informing people that the restoration occurred but wouldn't mean ex-convicts could vote unless they followed up by registering, may have driven the trend as well.
But the data suggest a question as the McAuliffe administration regroups from a Virginia Supreme Court decision striking down the governor's mass restoration order. As the governor prepares individual restorations instead, what's to stop him from prioritizing that effort to restore the vote first to people most likely to vote for Clinton?
Legally, very little. In practice, McAuliffe's communications director said, the governor has no intention of doing any such thing. Pressed, he promised the governor wouldn't
"The governor has never and will never factor race, geography, color, gender, religion or prospective political persuasion into the process of restoring Virginians' rights," McAuliffe spokesman Brian Coy said. "That is why he signed an order restoring everyone who was qualified under his criteria."
That criteria was simple enough when McAuliffe signed the mass order in April, restoring rights for more than 200,000 people in one fell swoop. Regardless of the crime committed, voting and jury rights were restored for anyone who had finished their sentence and supervised release. Gun rights would take another step, involving a judge.
These people had done their time, McAuliffe argued, and deserved the right to vote.
Republicans filed suit, saying the state constitution granted McAuliffe the power to restore rights on a case-by-case basis, but not with a mass order. The state Supreme Court agreed, 4-3.
Coy called it "unfortunate that Republicans in the General Assembly seem to favor a more subjective process," and he said that future governors might very well take political preference into account – one way or another – when restoring rights.
The constitution's clemency language is vague, giving the governors great discretion. In fact, that discretion was a big part of McAuliffe's unsuccessful argument before the state Supreme Court.
Were McAuliffe to restore rights based on race, which often correlates with partisan voting patterns, he might face a lawsuit under the U.S. Constitution's equal protection clause. But geography? Focusing on areas that have voted Democratic in the past?
"I can't think of anything (in the law) that would stop him from doing that," said Rebecca Green, a Harvard-educated attorney, William & Mary Law School Professor and co-founder of Revive My Vote, which helps people get their rights restored.
Other attorneys, from both sides of the aisle, agreed.
Available data could constrain such an effort, though. The state has information on the race of former inmates from the Department of Corrections. This is how it was able to say that roughly half those affected by McAuliffe's mass order were white and about 45 percent black. But the administration doesn't necessarily know where people who were released from prison years ago live now.
Armed with a person's name and birthday, though, there are ways to find out. And felons who took the extra step of registering to vote put an address on file with their local registrar, or with the state Department of Elections. McAuliffe has said he'll prioritize individual restorations for those roughly 13,000 people before turning his attention to the rest of the 206,000 or so people affected by his initial order.
Green, whose Revive my Vote project is nonpartisan, said she wouldn't expect the governor to seek a partisan advantage as he restores those rights. The administration held its list of restorations close for months, but eventually he will have to disclose the names of people whose rights are restored, and it would invite "a ridiculous amount of scrutiny if there were patterns," Green said.
Over the years, governors have had different criteria for restoring voting rights, and they have no obligation to explain themselves. Green called the process under previous governors "a black box," and said people who applied and were turned down typically weren't given a reason for the denial.
Former Gov. George Allen enacted a longer waiting period for people convicted of drug crimes when he was in office. Before his mass order, McAuliffe reclassified drug crimes as nonviolent felonies, making those restorations essentially automatic.
Streamlining that process for nonviolent felons was a move made under former Gov. Bob McDonnell.
Del. Rob Bell, R-Charlottesville, said Friday that, as long as McAuliffe engages in a case-by-case review, he can prioritize restorations as he sees fit. Bell was an architect of the Republican lawsuit, and he said it was never about partisanship, though GOP leaders did suspect McAuliffe made his move in an effort to help Clinton, a longtime friend and fellow Democrat.
"We think individual review is just the right way to do it," said Bell, noting that it would have caught problems that slipped through on McAuliffe's mass order, including restorations for sex offenders still confined on civil commitments.
"The constitution is what the constitution is," Bell said. "So long as he does so constitutionally, he's going to make his own process."
Fain can be reached by phone at 757-525-1759.