Howell and Norment: Court challenge seeks to halt executive order for restoration of felon rights

May 23, 2016
By William J. Howell and Thomas K. Norment Jr.

In a sweeping executive order, Gov. Terry McAuliffe restored the political rights of more than 206,000 convicted felons. These felons, including the 40,000 of them who committed violent crimes, are now eligible to register to vote, serve on juries and run for office.

Virginians believe in second chances. That is why our constitution already allows those convicted of a felony to apply to have their rights restored by the governor on a case-by-case basis.

McAuliffe threw that individualized process — and the constitution — to the wind, embracing a Washington-style view of executive power instead. In the process, he is hurting our criminal justice system. We are challenging this unconstitutional action in the Virginia Supreme Court. The legislative and judicial branches have an obligation to serve as a check on executive power. We will not let this overreach go unchecked.

Since 1830, the Constitution of Virginia has placed limitations on the political rights of convicted felons. The concept is simple: If you do not follow the laws and respect the rights of other citizens, you may be subjected to losing some of your rights. The surest way to retain all your rights is to not commit a felony.

Governors have always exercised clemency power with discretion, using their authority on a case-by-case basis to restore the rights of those who are prepared to be productive members of society again. McAuliffe acted with no such discretion. He didn’t even know who these people were.

His executive order applies to every felon regardless of the crime committed. According to the limited data available, more than 40,000 of the convicts committed violent crimes. That means a convicted pedophile could serve on a jury that decides if the next child predator goes to prison.

The governor also does not require individuals to complete their full sentencing. He is restoring the rights of felons while they remain on court-ordered unsupervised probation.

The governor often says these individuals have “paid their debt to society.” That is simply not the case. A criminal’s sentence is punishment, not a debt. We doubt the rape victim feels “repaid” just because her perpetrator finished his prison sentence. Even if you accept the governor’s erroneous premise, his order does not require felons to repay the debts required of them by the justice system. Their rights are being restored even if they have not paid restitution, fines or court costs. In other words, they literally have not paid their debts.

The governor is not only wrong on the merits, he is also acting without legal authority. His order defies the plain text of the constitution, has no precedent in Virginia history and flouts the separation of powers principle on which representative government rests.

First, according to the Virginia Constitution, the governor has the power to restore the rights of convicted felons, but only on a case-by-case basis. Article II, Section 1 specifically applies the governor’s authority to restore rights to individual “persons.” McAuliffe did not act on an individualized basis. He issued a blanket executive order covering more than 200,000 individuals, defying the plain text of the constitution.

Second, the order relies on an unprecedented view of executive authority. No governor has ever purported to have this much power. In fact, the past two governors explicitly found they lacked such broad power. In 2010, Gov. Tim Kaine’s lead counsel said blanket orders restoring rights were not a “contemplated use of executive authority” and would be a “rewrite of the law.” In 2013, a bipartisan and independent committee established by the attorney general’s office concluded the governor did not have the authority to institute an automatic, self-executing restoration of rights.

Third, the order effectively suspends the constitution’s prohibition against allowing felons to vote. If the governor’s power can be applied in this way, he can effectively suspend any law via the clemency power. For example, a governor could issue monthly pardons for anyone convicted of illegally possessing a firearm, effectively suspending the laws passed by the General Assembly. This is a dangerous precedent that flouts the separation of powers principle.

We cannot ignore McAuliffe’s disregard for the constitution and the rule of law. Our attorneys filed a petition in the Supreme Court of Virginia yesterday to stop the enforcement of the order. Several Virginians are joining us as petitioners in this case. Because action must be taken immediately to protect the integrity of November’s elections, our attorney is also filing a motion asking the Supreme Court to convene in a special session to hear the case right away.

The case against the governor is overwhelming. More than 240 years of accepted practice, precedent-setting Supreme Court cases, and a plain reading of the Constitution lead to the unambiguous conclusion that the governor’s order is unconstitutional and cannot stand.

Virginia voters to file suit against Governor McAuliffe's unconstitutional executive order

May 23, 2016
Virginia Senate Republican Caucus

RICHMOND, VA - Attorneys for General Assembly Republicans are filing suit in the Supreme Court of Virginia to halt enforcement of Governor Terry McAuliffe's (D) order restoring the political rights of more than 206,000 convicted felons, Speaker of the House William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment, Jr. (R-James City) announced Monday.

Six Virginia voters, including Howell and Norment, are asking the Supreme Court to issue writs of mandamus and prohibition to stop the implementation of the order. In accordance with Supreme Court rules, the petition will be filed with the Court later today, after the Respondents receive notice.

"The Constitution of Virginia forbids this unprecedented assertion of executive authority," the filing states. "Governor McAuliffe's executive order defies the plain text of the Constitution, flouts the separation of powers, and has no precedent in the annals of Virginia history. The Governor simply may not, with a stroke of the pen, unilaterally suspend and amend the Constitution."

"Governor Terry McAuliffe exceeded the authority granted to him by the Virginia Constitution and we simply cannot ignore this unprecedented executive overreach," said Speaker Howell. "Along with fellow citizens, we are asking the Supreme Court of Virginia to stop the implementation of the order and any similar orders he may issue in the future. The case against the Governor's executive order is overwhelming. A plain reading of the Constitution, 240 years of practice, and precedent-setting Virginia Supreme Court cases lead to the unambiguous conclusion that the Governor's order is unconstitutional and cannot stand."

"The Governor has willfully ignored constitutional limitations on his power, demonstrating his complete and total disregard for the Commonwealth, the people of Virginia, and the principles of representative government," Majority Leader Norment said. "We have three separate and co-equal branches of government to serve as checks and balances to prevent abuses of power. To fulfill the legislative branch's constitutional duty to check the excesses of executive power, we are compelled to challenge this order. The weight of the case against the Governor's action is staggering, and we are confident we will prevail on the merits."

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GOP's Vogel running for lieutenant governor

March 05, 2016
JIM NOLAN Richmond Times-Dispatch

State Sen. Jill Holtzman Vogel, R-Fauquier, is entering the race to be Virginia’s next lieutenant governor.

“I’m running,” she told the Richmond Times-Dispatch. “I’ve had a lot of people from all around the state engage me and ask me to run, and I’m incredibly flattered and incredibly humbled.”

“I think this is an awesome opportunity,” added the 45-year-old lawyer, a working, married mother of six.

“We need to get our mojo back as a party,” she said of her decision. She stressed that in the immediate future, however, her focus is on completing the General Assembly session that is scheduled to end Saturday, and helping Republicans win this November.

“Now is the time to focus on the upcoming congressional races and the presidential campaign,” she said.

Vogel would be the Virginia GOP’s first female nominee for statewide office since 1989, when state Sen. Edwina P. “Eddy” Dalton, R-Henrico, widow of former Gov. John Dalton, lost the contest for lieutenant governor to Democrat Don Beyer.

While Republicans control the state Senate and the House of Delegates, the GOP has not won a statewide race in Virginia since 2009, when Republicans swept the contests for governor, lieutenant governor and attorney general.

Democrats carried Virginia in the 2008 and 2012 presidential elections, swept the contests for governor, lieutenant governor and attorney general in 2013 and have won four straight elections for the U.S. Senate in 2006, 2008, 2012 and 2014.

In a brief interview, Vogel said she would bring a fresh perspective as a working mother who runs her own business while managing the demands of family and her role as public servant.

Vogel is managing partner with Holtzman Vogel Josefiak Torchinsky PLLC, based in Warrenton and Washington, where she specializes in nonprofits, ethics, campaign finance and tax exempt organizations.

“I think I have something to contribute,” she said.

Vogel is married to attorney Alex Vogel, a partner at the firm and co-founder and managing partner of VogelHood Research, based in Georgetown, a political analytics firm specializing in Wall Street.

Jill Vogel is stepmother to Alex Vogel’s two teenage children from a previous marriage. The couple have four children together, ages 3, 7, 10 and 12.

She was re-elected in November to a third term in the Virginia Senate from the 27th District, which includes Clarke, Fauquier and Frederick counties and the city of Winchester, as well as part of Culpeper and Loudoun and Stafford counties.

In the Senate, Vogel chairs the Senate Committee on Privileges and Elections.

From 2008, when she first took office, to the beginning of this session, Vogel was the only female Republican in the Senate, where she has a reputation as a fiscal conservative and social moderate willing to work across party lines to get things done.

A crowded field of potential candidates have expressed interest in a 2017 run for lieutenant governor — a part-time, office whose occupant presides over the 40-member Senate and has the power to break ties on most issues.

Others who have begun laying groundwork for a run include fellow state Sen. Bryce E. Reeves, R-Spotsylvania; Pete Snyder, who lost the party’s 2013 nomination for lieutenant governor to E.W. Jackson; and Danny Vargas, a Northern Virginia businessman who lost a race for the House of Delegates in November.

Rep. Robert J. Wittman, R-1st, and Ed Gillespie, the former Republican National Committee chairman who lost a close race in 2014 to U.S. Sen. Mark R. Warner, D-Va., say they will run for governor.

Former Virginia Attorney General Ken Cuccinelli, the GOP’s 2013 nominee for governor who narrowly lost to Democrat Terry McAuliffe, is considering another run in 2017.

Del. Robert B. Bell, R-Albemarle, and John Adams, a lawyer in private practice in Richmond, are seeking the Republican nomination for attorney general.

Vogel served with Cuccinelli in the Senate and has worked extensively with Gillespie, whom she represented during his tenure at the Republican National Committee from July 2003 to January 2005.

Republicans are expected to choose their statewide nominees for 2017 at a party convention.

The Democratic field for 2017 is likely to feature two incumbents.

Lt. Gov. Ralph S. Northam is running for governor and Attorney General Mark R. Herring is running for re-election, leaving only the lieutenant governor spot on the ticket unoccupied.

Vogel’s entry into the race, and the possibility of her nomination, could up the ante on Democrats to nominate a woman or someone other than a white male to diversify their statewide ticket.

Republican state Sen. Vogel running for lieutenant governor

March 05, 2016
The Washington Post

RICHMOND, Va. — Republican state Sen. Jill Holtzman Vogel says she’s running to become Virginia’s next lieutenant governor.

Vogel told The Richmond Times-Dispatch ( that running for the office in 2017 is “awesome opportunity.” She says the Republican party needs to get its “mojo back” and that she would bring a fresh perspective as a working mother.

The 45-year-old lawyer and mother of six was re-elected to her third term in the state Senate in November.

Vogel represents the 27th District, which includes Clarke, Fauquier and Frederick counties, the city of Winchester and part of Culpeper and Loudoun and Stafford counties.

Vogel would be the first Republican female nominee for statewide office since 1989.

Vogel didn’t immediately return a message from The Associated Press on Saturday.

McAuliffe signs gun deal hailed as 'historic agreement'

February 26, 2016
GRAHAM MOOMAW Richmond Times-Dispatch

The bipartisan gun deal announced one month ago was signed Friday by Gov. Terry McAuliffe, who used the stately backdrop of the Executive Mansion to underscore the significance of what he called a "historic agreement"¯ for Virginia.

The signing ceremony "the first McAuliffe has held in the 203-year-old governor's mansion" was the culmination of several weeks of activity to get three bills through the General Assembly.

"The debate on gun safety has had sharp edges that have kept all of us apart for so many years," McAuliffe said. "But we braved those sharp edges together this year. And we can be proud of the accomplishments."

The ceremony also was a somewhat awkward political moment for McAuliffe, who has faced pointed criticism from former allies in the gun-control movement for striking a deal welcomed by gun-rights activists.

"Governor McAuliffe cut a backroom deal with the NRA that betrays gun violence survivors and endangers the safety of all Virginians. We expected more from him,"¯ said John Feinblatt, president of Everytown for Gun Safety.

The group, backed by former New York Mayor Michael Bloomberg, spent more than $2.4 million in last year's Virginia legislative elections to help McAuliffe and Democratic candidates.

Speaking with reporters after signing the bills, McAuliffe, who made gun violence a marquee issue in last year's legislative races, bristled at questions about the politics of the deal.

"I didn't get elected to run a political operation," McAuliffe said. "I got elected to run a state."

The package will expand recognition of out-of-state concealed carry permits, reversing Attorney General Mark R. Herring's decision last year to sever ties with 25 states that have looser permitting rules than Virginia.

Herring, who has criticized the move to recognize concealed carry permits from every state that issues them, did not attend Friday's ceremony. Herring learned of the signing ceremony Friday morning and did not have time to adjust his schedule, according to his staff.

The governor was joined by a large crowd of lawmakers, Lt. Gov. Ralph S. Northam, and Secretary of Public Safety and Homeland Security Brian J. Moran.

Two other bills will require domestic abusers under permanent protective orders to give up any guns in their possession within 24 hours and position Virginia State Police at every gun show to perform voluntary background checks requested by unlicensed sellers who lack access to the federal database used by gun dealers.

McAuliffe focused heavily on the deal's safety measures, saying they'll have a palpable impact by removing guns from dangerous domestic violence situations and deterring private gun sales to buyers who wouldn't pass a background check.

When weighing the deal, McAuliffe said he asked for guidance from the law-enforcement community.

"Are the actions we take going to make Virginians safer" McAuliffe said. "And unequivocally, they said yes."

The governor previously has said there is no evidence of out-of-state visitors with concealed carry permits committing crimes. He said Friday that the danger of domestic violence "is not a theoretical threat."

Republican lawmakers have said they were drawn into the negotiations by a desire to undo Herring's action on concealed carry permits.

"We're taking a major step to secure the Second Amendment rights of some of the most law-abiding citizens of Virginia," Speaker of the House William J. Howell, R-Stafford, said at the ceremony.

Gun-rights groups have welcomed the deal and raised no objections to the safety provisions.

"Now, more than 6 million law-abiding gun owners will be free to travel in and out of Virginia with their Second Amendment rights intact,"¯ said Chris W. Cox, executive director of the National Rifle Association's lobbying arm.

The gun deal also has cost McAuliffe with some Virginia-based activists who have endured high-profile gun tragedies.

Andy Parker, the father of slain television journalist Alison Parker, said in a statement circulated by Everytown that he was "beyond disappointed" to see the governor sign the deal on the six-month anniversary of his daughter's death.

"I understand that politics is about compromise,"¯ Parker said. "But it is baffling that someone like Governor McAuliffe, who has a reputation as a great deal maker, accepted a deal that so many have described as a giveaway to the gun lobby."

McAuliffe said he didn't get everything he wanted due to the realities of dealing with a Republican-controlled legislature. He said his work on the issue of gun violence is not over.

"My job is to keep Virginians safe,"¯ McAuliffe said. "People are going to have different opinions."

Legislative Update

February 23, 2016
paid for and authorized by Jill H. Vogel for Senate

Last week marked our Crossover session. It is the midway point of every legislative session and this annual milestone marks the deadline by which the Senate must act on all bills filed by members of the Senate. Any successful Senate bills must be sent to the House by midnight. The House has the same deadline by which to complete their bills and transmit their successful legislation to the Senate.

Crossover is traditionally consumed by long sessions and lengthy debates on the floor of both houses of the General Assembly. This year, however, those sessions were not nearly as long, with both sides completing their work well in advance of the midnight deadline. We moved with efficiency because we have done a good job of weeding out the bad bills and perfecting the quality bills. Of the nearly 1002 bills filed by Senators, more than 552 were approved and sent to the House for consideration. Also, by Crossover, the Senate had already considered and approved a significant number of House bills, passing 249.

Prior to Crossover, an impressive range of substantive bills had passed the General Assembly. Highlights include bills to:

  • Establish the Virginia Shoreline Resiliency Fund for the purpose of creating a low-interest loan program to help residents and businesses subject to recurrent flooding;
  • Give state police authority to perform background checks on behalf of private citizens at gun shows, if requested;
  • Prohibit a person subject to a permanent protective order from possessing a firearm;
  • Override the governor's executive order banning guns in state buildings;
  • Remove hospitals, outpatient surgery centers, medical imaging services and similar facilities from the certificate of public need process, which requires state approval before new facilities can be built;
  • Allow production of cannabidiol oil and THC-A oil;
  • Provide that if the director of the Department of Corrections certifies that lethal injection is not possible as a means of execution, electrocution can be used instead;
  • Require the state police to include justifiable homicides involving a law-enforcement officer in the annual Crime in Virginia report;
  • Expand the definition of stalking to include if a woman feels fear;
  • Increase the penalty for repeat protective order violations, domestic violence and stalking from a misdemeanor to a Class 6 felony;
  • Clarify that killed in action includes a service member who dies of wounds received in action after reaching a medical treatment center, for purposes of the real property tax exemption on the residence of the surviving spouse;
  • Prohibit tolling a highway, bridge or tunnel without approval of the General Assembly except in limited circumstances;
  • Change the regional gas tax in Hampton Roads to a cents-per-gallon tax that decreases as the price of gas increases;
  • Require the Department of Environmental Quality to receive approval from the General Assembly for a state plan to regulate carbon dioxide emissions from existing power plants before submitting the plan to the U.S. Environmental Protection Agency for approval; and
  • My bill which the Governor agreed to support recognizing concealed handgun permits for all states with a concealed carry permitting process.
It should be no surprise that the most controversial bills were being refined until the very end. In this case, one of the bills was my SB 416 which drew national attention. It is the current model framework for states attempting to construct laws that accommodate a new online sharing economy while protecting the economy that already exists. The bill was narrowly drawn to serve people in Virginia who wish to make lodging space available at their primary residences through online platforms like FlipKey and Airbnb. The bill protects consumers, while working with the Tax Department to create a process to fairly collect and remit taxes to localities. To me the bill offered the perfect solution. It leveled the playing field, satisfied localities by capturing revenue, protecting their local ordinance authority while it included a study at the request of the hotel and hospitality industry who asked that their issues with the industry be evaluated for future legislation. The bill passed in committee almost unanimously but had a tough debate on the Senate floor. I respect opponents who want local government to be able to ban the practice, but this is an issue of fundamental economic freedom and like Uber and Lyft, the modern sharing economy is here and Virginia ultimately has to adopt a fair framework to address it. I am pleased that the majority of my bills have passed and now remain to be considered in the House.

Finally, the biggest event of the week came Sunday afternoon when the Senate Finance Committee met to pass the Senate's version of the 2016-2018 Biennial Budget. It was the result of weeks of painstaking work. I chaired the subcommittee responsible for general government, technology, state employee compensation, the court system and the Virginia Retirement System, and I am very proud of the budget that we produced.

As always, I take your thoughts and opinions seriously and hope that you will get in touch with our office any time that you have questions or concerns. We have had a number of visitors in the Capitol this session and I urge you to visit if you have time before the session concludes on March 12th. It is a great experience and especially educational for kids. I can be reached during the General Assembly session at 804-698-7527, P.O. Box 397, Richmond, VA 23218 or you can email me at