McAuliffe Nailed For ‘Gross Misrepresentation’ Of Supreme Court Ruling

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Kevin Daley Supreme Court correspondent
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Virginia Gov. Terry McAuliffe was chastised in the Richmond-Times Dispatch for “gross misrepresentation” of a Virginia state Supreme Court’s ruling this weekend.

Professor Kevin C. Walsh of the University of Richmond School of Law took McAuliffe to task for his relentless attacks on the Virginia high court, after a four-justice majority struck down his executive order restoring voting rights to nearly 200,000 Virginia convicts. Individuals convicted of felonies in Virginia are permanently barred from casting ballots. The order was derided by Republicans in the state legislature, who saw the order as an attempt to enroll tens of thousands of new Democratic voters in a swing state months before a major election. McAuliffe is a close ally of Democratic nominee Hillary Clinton.

In striking down the order, the state Supreme Court ruled that such a broad and indiscriminate extension of clemency was not imagined by the clemency power in the state Constitution. They further ruled that the order infringed on the state legislature’s prerogative to define the rights of convicted felons.

“Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote for the majority.

In the ensuing months, the governor has excoriated the justices for their ruling, often, as Walsh notes, by casting the decision in terms of Virginia’s racist past. He elsewhere called the ruling a “disgrace” and accused the justices of being “scared” of parting ways with the Republican legislators that appointed them. (RELATED: This Is How Badly Terry McAuliffe Wants Felons To Vote)

“The struggle for civil rights has always been a long and difficult one, but the fight goes on,” he said, after the ruling was issued.

“Whatever Governor McAuliffe’s motivations, his high-profile and repeated attacks have had the effect of diverting blame from his unconstitutional implementation of an otherwise laudable policy,” Walsh wrote. “That these attacks have been effective, however, makes them no less regrettable or more justifiable.”

He also brought an argument against the governor by way of historical analogy. Walsh drew from Chief Justice John Marshall’s opinion in McCulloch v. Maryland, a landmark 19th century Supreme Court decision concerning federalism and the scope of congressional power. Marshall wrote that the judiciary was uniquely prone to unfair criticism because rulings often turned on “intricate and abstruse reasoning, which it requires no inconsiderable degree of mental exertion to comprehend, and which may, of course, be grossly misrepresented.”

“Governor McAuliffe’s simplify-then-smack-down-the-strawman technique takes advantage of the very feature of constitutional reasoning by the judicial department that Marshall identified as making it susceptible to gross misrepresentation,” Walsh said, urging the public to ignore McAuliffe’s agitations.

Before joining the Richmond faculty, Walsh taught at Villanova University School of Law and was a clerk to U.S. Supreme Court Justice Antonin Scalia.

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