The court case that could decide the 2016 election

Should felons be allowed to vote?
Should felons be allowed to vote?


    Should felons be allowed to vote?


Should felons be allowed to vote? 06:45

Story highlights

  • In Howell v. McAuliffe, the Virginia Supreme Court will determine if 200,000 felons can keep their reinstated right to vote.
  • Kayleigh McEnany: Since Virginia is a key swing state, the outcome of this case could decide the 2016 presidential election.

Kayleigh McEnany is a CNN commentator and supporter of Donald Trump. She graduated from Harvard Law School with a Juris Doctor. She received her bachelor of science in international politics from Georgetown University's School of Foreign Service and studied politics at Oxford University. The views expressed in this commentary are her own.

(CNN)The Republican National Convention is well underway and so, too, is a lawsuit that could alter the outcome of the election.

With oral arguments set to begin Tuesday, the Virginia Supreme Court in Howell v. McAuliffe will consider whether Gov. Terry McAuliffe acted constitutionally when he reinstated voting rights to more than 200,000 felons via executive order in April of this year. And in a race that remains too close to call, 200,000 potential new voters could make the difference between a Hillary Clinton or Donald Trump presidency.
In reaction to McAuliffe's order, Republican lawmakers promptly filed a complaint with Virginia's Supreme Court, alleging that the move violated Article II, Section I of the Virginia Constitution, which reads, "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."
    Though the text makes an exception to felon disenfranchisement in the event of a governor's restoration, the plaintiffs argue, "From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only."
    In other words, while clemency may be granted in a case-by-case scenario, it was certainly not intended to be handed out to hundreds of thousands of criminals at once.
    Kayleigh McEnany
    Indeed, the plaintiff's analysis was nearly identical to the analysis of former Virginia Democratic Gov. Tim Kaine, a potential running mate of Hillary Clinton, whose counsel concluded that "a blanket restoration of voting rights within the context of current Virginia law would not be proper" and would essentially "rewrite the law."
    Beyond regaining voting rights, McAuliffe's executive order would permit felons to serve on juries, run for office and even purchase guns. At a time when gun violence is fresh on the conscience of the American people, many would find the concept of violent felons regaining access to guns somewhat disconcerting.
    In addition to legal backlash, McAuliffe, a staunch ally of the Clintons, has incurred political backlash from Republicans. Virginia House of Delegates Speaker William J. Howell alleged, "The singular purpose of Terry McAuliffe's governorship is to elect Hillary Clinton president of the United States. This office has always been a stepping stone to a job in Hillary Clinton's cabinet."
    Perhaps, unsurprisingly, presumptive Democratic presidential nominee Hillary Clinton viewed the move differently, tweeting, "Proud of my friend @GovernorVA for continuing to break down barriers to voting. --H."
    Echoing Clinton, McAuliffe explains that his decision to give voting rights back to felons in mass helps to enfranchise a minority group, since one in four African-Americans have not been able to vote in Virginia because of restrictions related to criminal convictions, according to The Washington Post.
    McAuliffe further suggests that the blatant purpose of the constitutional amendment was, in fact, disenfranchising a minority group, a claim that Republicans deny, pointing out that "Virginia has prohibited felons from voting since at least 1830 -- decades before African-Americans could vote."
    Moreover, the plaintiffs point out that individualized restoration of rights is the constitutional route, a method that former Republican Gov. Robert McDonnell streamlined and used to restore rights to thousands of ex-felons. McDonnell, despite easing the path for felons to regain voting rights, never went as far as granting wholesale, widespread re-enfranchisement.
    For a number of reasons, the court will likely side with the plaintiffs in reversing McAuliffe's executive order. On the textual side, the provision in the Virginia Constitution is framed in a way that supports the individualized approach, using singular pronouns like "no person" convicted of a felony can vote unless "his" rights are restored.
    This singular reference suggests the drafters intended a case-by-case rather than widespread approach to re-enfranchising voters. Moreover, case law and past precedent of every preceding governor without exception supports the plaintiff's argument.
    Sen. Paul pushes felons' voting rights
    Sen. Paul pushes felons' voting rights


      Sen. Paul pushes felons' voting rights


    Sen. Paul pushes felons' voting rights 01:33
    Whatever the legal and political response, though, the electoral ramifications of the executive order and its constitutionality -- soon to be determined by the Commonwealth's Supreme Court -- could not be more important.
    The most recent poll of Virginia from Hampton University shows a tie between Donald Trump and Hillary Clinton, and the Real Clear Politics average has Clinton leading by less than five points, making Virginia a key battleground state coveted by both candidates and perhaps determinative in the 2016 election.
    Adding upwards of 200,000 extra voters could most certainly make the difference in a state with just over 5 million registered voters. As Politico reports, as of June 30, just 8,170 convicted felons have taken the step of registering to vote, and these voters tend to lean Democratic.
    This addition of new voters, however minute, could very well make a difference. As most recall, the 2000 election in Florida was determined by just a few hundred votes, suggesting that the addition of thousands of new voters could have a determinative effect on the electoral outcome this fall.
    So as the 2016 election kicks into high gear and all eyes turn to the Republican and Democratic National Conventions, perhaps it is equally wise to cast our gaze upon a little known lawsuit in the Commonwealth of Virginia.