CCSC 16–03: DadTheTerror v. Oath2Order

Panhead369, C.J., delivered the opinion of the Court.

Before the Court are Executive Order 002 and 003 of the Commonwealth of Chesapeake, so ordered by Governor /u/Oath2Order, challenged by Petitioner /u/DadTheTerror and defended by Attorney General /u/High-Priest-of-Helix. Petitioner argues that the Executive Order is not an appropriate legal instrument to restore the political rights of ex-felons, and that this use of clemency powers must be used on an individual basis. Respondent has argued that there is no restriction on the use of clemency in this manner besides the ones patently obvious in the Constitution. It is the judgment of this Court that the Executive Order is adequate on its own to effect the restoration of political rights to all ex-felons in Chesapeake, that the Governor does have the authority to restore political rights to classes of felons, and that the restoration of political rights by class does not create an issue of separation of powers.

I.

Petitioner has correctly argued that vote dilution is an appropriate harm from which to derive standing in this case. The value of petitioner’s vote is reduced by the mass addition of ex-felons to the voting class, and if the Governor’s Order were found to be unconstitutional then this harm would be unjustified. Petitioner’s argument does not fail for lack of standing.

II.

A.

The Governor of the Commonwealth of Chesapeake is given a broad and explicit power to restore the political rights of ex-felons in our state’s Constitution. “The Governor shall have power . . . to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution;” Ches. Const. art. V, sec. 12. This power is not restricted in this section beyond the procedural restrictions that “He shall communicate to the General Assembly, at each regular session, particulars of . . . reprieve or pardon granted, . . . with his reasons for remitting, granting, or commuting the same.” Id. This restriction, an annual report to Congress, is placed on the Governor, and no further explicit limitation on this power is included in the Constitution. The framers of the Constitution clearly intended for this power to be broad and lightly restricted, or further limitations would have been provided for in this Section or another with respect to this power.

The other reference to this power to be found in the Constitution is that “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Ches. Const. art. II, sec. 1. Petitioner reads this Section to imply that the authority granted to the Governor in Article V was meant to be restricted by the restriction on voting rights in Article II. This Section in no way restricts the power of the Governor to restore political rights, and is merely a statement of standard law that voting rights will be restricted with the exception that the Governor may execute the clemency power to exempt ex-felons from this law. Petitioner would argue that the Executive Order would remove the teeth of this clause, but the purpose of the exception is to preserve the Governor’s clemency power. On the contrary, the Constitution provides that voting rights can be restored by “other appropriate authority”. This leaves a broad spectrum of possible executors of the power to restore ex-felons voting rights, including the Governor explicitly. This restriction on the commonly-held right to vote is intentionally porous to allow the people of Chesapeake to vote freely.

B.

There is no Constitutionally-provided reason to restrict this power to individual application rather than allowing class-based restoration of political rights. Petitioner cites the requirement in Article V Section 12, quoted above, that the Governor annually report all uses of clemency power to the Assembly, including the particulars of all cases forgiven. This is not a restriction of the clemency power at all, but simply a requirement of notice to Assembly regarding the execution of this power. The annual report to the Assembly must itself be detailed as required by the Constitution, and the Executive Department may face difficulties in recording the particulars of every ex-felon in the Commonwealth, but the power to restore political rights in no way is restricted to individual-by-individual implementation.

III.

The expansive power to restore political rights, including voting, does not create an issue of separation of powers. Petitioner has raised several possibly intrusive issues regarding the class-based usage of clemency power.

A.

Petitioner raises Article I Section 7, which states “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” In claiming that this section restricts the clemency power, petitioner has ignored that the Constitution is itself written and sponsored by the people. The Governor is exercising a power given to the office by the people of Chesapeake, and is patently not required to be ratified or approved by the Assembly.

B.

Petitioner raises Article III, which states “ The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time . . .” The restoration of political rights to ex-felons in no way impedes or infringes on the Assembly’s or the Judiciary’s powers. On the contrary, the restoration of political rights to classes of ex-felons is an important check on the power of Congress to create permanent criminals in Chesapeake.

The power of the Governor to restore political rights occurs following the completed criminal punishment of felons. In the case of an ex-felon, Congress has created a criminal rule, and the Judiciary has adjudicated an appropriate sentence. Once the felon has completed the punishment, their subjugation to this portion of the Constitution is the remaining legal barrier to fully restored citizenship. Restoring regular political rights to ex-felons does not infringe on the legislative or judicial powers, but is merely an execution of a Constitutionally given power by the Governor. In contrast, the power to pardon offenses and remove criminal punishments would not seem to fall outside of the scope of the Assembly’s rulemaking power and the Judiciary’s adjudication power.

The restoration of political rights to classes of ex-felons, based on their committed crime, prevents excessive, targeted, and discriminatory creation of felonious behavior. More than two million citizens of Chesapeake are ex-felons, for crimes ranging from murder to the exchange of little more than an ounce of marijuana. An otherwise law-abiding citizen that has become a felon may find his or her sentence unwarranted, and it is within the discretion of the Governor to forgive certain classes of felon of their restriction of political rights to change the law and check the Assembly’s creation of felonies. Which felonies are warranted to be forgiven is a political question that will not be broached by the Court.

Governor /u/Oath2Order’s Executive Orders 002 and 003 are within his authority as Governor, and will stand.