Limbo: Reversal of McAuliffe’s Voting Rights Order & Gun Rights
Gov. Terry McAuliffe’s massive restoration-of-rights order for about 206,000 felons prompted 13,000 of them to register to vote before the Supreme Court of Virginia overturned the order last month.
Because restoration of civil rights is a prerequisite to an application for the restoration of firearms rights, a number of ex-offenders subsequently used their new status to apply to circuit courts throughout the state to restore their gun rights.
But now authorities and individuals involved in gun-rights restoration potentially affected by the court ruling are confronted with a murky legal and logistical question: What to do with ex-offenders who successfully applied to have their gun rights restored and now possess firearms?
“It’s quite a pickle for the citizens actively involved,” said Seth Saunders, a Richmond criminal defense attorney who also specializes in firearms-rights restoration.
“None of them did anything wrong … but it’s created a minefield of issues when it comes to the process,” he said. “There is no solid answer right now, and that’s part of the problem.”
The issue is yet another unintended consequence of the Democratic governor’s order, and the Supreme Court of Virginia’s ruling on July 22, in response to a legal challenge by Republican General Assembly leaders.
“This is a pretty unusual situation without a clear answer,” said Michael Kelly, spokesman for Virginia Attorney General Mark R. Herring.
“The Supreme Court dealt with voters in its order, but not other Virginians who had relied on the governor’s order to exercise certain rights and privileges. The situation will ultimately require some judicial clarification from a circuit court, or perhaps the Supreme Court itself.”
It’s hard to gauge how many people are caught up in the gun-rights limbo. Local prosecutors said they did not see a huge leap in applications for firearms restoration after the governor’s blanket civil-rights restoration orders in April, May and June.
Those orders automatically granted to nonviolent and violent felons alike who had completed their sentences the right to vote, sit on a jury, become a notary public and seek elective office.
But the absence of guidance from the courts regarding the gun-rights restoration since the Supreme Court overturned McAuliffe’s order restoring other rights has left no clear direction on how to handle those who obtained guns in the interim, people involved in the process said.
“I can only imagine that your firearms restoration is not valid if you are someone caught in the middle,” said Richmond defense attorney Susan Allen, who handles restoration issues as part of her practice.
“If you no longer have a valid civil-rights restoration, you don’t meet the eligibility requirements.”
Saunders, however, said he could argue that clients who successfully pursued restoration of gun rights under the authority of the governor’s mass civil-rights restoration order are entitled to retain their firearms, despite the rescinded civil-rights order.
“If I took a ripe claim to the courts — which it was at the time a judge signed off on it — that tells me the rights are restored and valid,” he said. Otherwise, Saunders said the courts or law enforcement need to clarify the law “and let all folks affected know it has been corrected.”
The consensus among commonwealth’s attorneys and law enforcement officials interviewed appears to be that people who obtained firearms using the now-rescinded mass civil-rights restoration order technically are no longer legally allowed to possess them.
“Individuals need to refer back to the governor’s website for direction on how to proceed concerning the steps necessary to secure a valid restoration of their voting rights,” the Virginia State Police said in a statement.
“Once that’s accomplished, then those individuals will have to reapply through the circuit court to have their gun rights restored.”
If someone in possession of a firearm as a result of the order is stopped by a law enforcement officer, the state police said the individual would need to show documentation of gun-rights restoration.
The officer would advise the person that “any firearm in that individual’s possession at the time would have to be turned over to another individual,” such as a family member, neighbor or friend, “who can lawfully possess a firearm.”
Officials said that if no one else was in the vehicle when the person was stopped, the officer would need to take custody of the weapon until a person legally able to possess the firearm could claim it.
Defense attorneys said that if someone possessed a weapon and had not received notice that the gun rights are no longer valid, such circumstances would not warrant the filing of charges for illegal possession of a firearm, let alone successful prosecution.
“You’ve got a darn good defense,” Allen said. “You would be hard-pressed to think anybody is going to be convicted under those circumstances.”
But those caught in the middle of the gun-rights situation still face additional obstacles.
As a result of the Supreme Court ruling, state elections officials set an Aug. 8 deadline for local registrars to remove from the voting rolls the names of the 13,000 felons who had registered under McAuliffe’s order.
The governor said he would reinstate individually the voting rights of all who had received them under the blanket orders he issued in April, May and June.
To date, however, none of those affected has had their rights individually restored. On Friday, McAuliffe’s office said he will make a “major” announcement on rights restoration on Monday.
Felons wishing to vote will have to wait until they receive notice from the governor that their individual rights are restored and then re-register — a process that takes little time and no money.
But people who have to reapply to a circuit court for gun rights potentially face additional court costs and legal fees to restore their firearms rights.
The process, which involves a scheduled court hearing and review by a local commonwealth’s attorney’s office, also can take time — anywhere from three weeks to months, defense lawyers say.
“It’s not something you can do on a Tuesday afternoon,” Saunders said.
Henrico County Commonwealth’s Attorney Shannon L. Taylor, among the first to raise the gun-rights limbo issue after the Supreme Court’s ruling, said she believes a number of circuit judges, recognizing the potential legal challenge to McAuliffe’s original order, continued cases involving firearms restoration to avoid the potential conflict.
After the Supreme Court ruling, the Virginia Association of Commonwealth’s Attorneys sent an email to prosecutors throughout the state raising the issue and suggesting ways to handle gun-rights cases once they come back around.
“After reviewing the research and communicating with the Henrico Circuit Court, we have decided that for the one or two individuals who fall into this category, we will issue a show-cause motion to bring them back before the court so that the judge might be able to explain what has happened with the Virginia Supreme Court decision and how it voided their order,” Taylor said.