RICHMOND, Va. (CN) - The Fourth Circuit rejected a challenge to Virginia's singular voting rights restoration process Tuesday, ruling the system isn't a licensing scheme subject to scrutiny under a First Amendment doctrine. 

George Hawkins, convicted as a minor of attempted murder and aggravated malicious wounding in 2010, challenged the system after Republican Governor Glenn Youngkin declined to restore his voting rights in 2023. 

Hawkins argued that Virginia's one-of-a-kind system, whereby the governor has unbridled authority to restore felons' voting rights, violates a constitutional principle prohibiting administrators from exercising unfettered discretion over whether to grant licenses that implicate an individual's First Amendment rights.

A three-judge panel agreed with a lower court's ruling that the voting restoration process differs from a licensing scheme. 

"Hawkins' claim fails because, as both other federal courts of appeal to consider this question have concluded, the discretionary exercise of Virginia's clemency power does not constitute a licensing system," U.S. Circuit Judge Andrew Wynn said. 

Wynn relied on the Sixth Circuit's decision in Lostutter v. Kentucky, where the federal court rejected a similar challenge. The Sixth Circuit outlined the differences between pardons and administrative licensing, including that pardons are retrospective and one-time acts rather than ongoing. The key difference, however, is that pardons restore a right once held but lost due to illegal conduct, while licenses regulate how a person exercises a right they already possess. 

Attorney Jon Sherman of the Fair Elections Center, representing Hawkins, said in a phone interview that while he respected the court's decision, he believed the court should have given more weight to the outcomes of the system rather than differing between a right lost versus a right already possessed. 

"Regardless of how voting eligibility statutes are worded, the practical effect of selective re-enfranchisement, not the applicants' technical 'status quo' under state law, is dispositive," Hawkins said in a reply brief. "State law labels or semantics cannot dictate the scope of the First Amendment's coverage."

Before delving into the unfettered doctrine, Wynn wrote extensively about whether the court could review executive clemency power. The judge disagreed with Youngkin, who argued that, as a threshold matter, courts couldn't review the voter-restoration scheme.

According to Wynn, a scheme is subject to review if it runs afoul of the Constitution, such as when the Supreme Court unanimously permitted disenfranchised voters to challenge the disenfranchisement provision in Alabama's Constitution as a violation of equal protection. 

Despite this finding, the Barack Obama appointee ruled that Hawkins' challenge failed. 

"Given the historically limited role of the judiciary in restraining the use of the executive clemency power, and the longstanding role of discretion in that power, we will not import the unfettered discretion doctrine from the licensing world into this wholly different context," Wynn said. 

What makes an applicant worthy of clemency remains unclear, as the governor has not provided any objective criteria. The process also lacks a time limit for the governor to issue decisions.

Wynn did sound sympathetic to Hawkins' challenge in writing that a governor could easily use criteria such as party affiliation or race in restoring voting rights. 

"That concern may not be far-fetched: It is much easier for a sophisticated actor to gather sufficient information on the average individual to make a predictive judgment about a person's future voting behavior today than it would have been in 1870 when the Virginia Constitution first vested the governor with this discretion," Wynn said. "Such malfeasance would also be hard to detect. To whatever extent it is normatively desirable to create a prophylactic rule to prevent such behavior, however, the foregoing discussion shows why the First Amendment unfettered discretion doctrine does not provide a suitable vehicle to do so."

The ruling comes as a lower federal court in Virginia is litigating a 2023 case in which the plaintiffs contend that federal law prevents Virginia from disenfranchising individuals for offenses that would not have been considered felonies in 1870. 

Legislators are also pushing for change, as Democrats in the General Assembly have initiated the process to amend the Virginia Constitution to provide for the automatic restoration of voting rights upon an individual's release from prison. For this amendment to become part of the Virginia Constitution, the next General Assembly must also approve it before it submits it to the voters for their approval. 

Virginia joins Iowa and Kentucky as the only three states that still indefinitely strip felons of their rights to vote and obliges them to seek restoration from the governor. Virginia differs, however, as Iowa and Kentucky have enacted executive orders providing for automatic restoration in most circumstances.

The Sentencing Project estimated that over 200,000 Virginians lacked the right to vote upon release, accounting for slightly more than 5% of the state's voting-age population. According to the 2023 lawsuit, Black Virginians account for nearly half of disenfranchised voters despite comprising less than 20% of the commonwealth's voting-age population. 

U.S Circuit Judge Pamela Harris, a fellow Obama appointee, and U.S. Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee, completed the three-judge panel. The government did not respond to requests for comment. Sherman indicated that his client is considering filing an en banc petition. 

Source: Courthouse News Service