The Governor Giveth, and the Governor Taketh Away: The Authority of the Kentucky Governor to Restore Voting Rights for Ex-offenders

The Governor Giveth, and the Governor Taketh Away: The Authority of the Kentucky Governor to Restore Voting Rights for Ex-offenders

Matthew I. Boggs, Staff Editor[1]

            In November 2015, then Governor Steve Beshear issued Executive Order 2015-871[2] which restored voting rights to convicted felons in Kentucky who met certain criteria: they must have completed the terms of their sentence, including any probation and restitution, they must not be facing any pending criminal charges or arrests, and the offense of conviction cannot be a violent crime, a sex crime, bribery, or treason.[3] Many saw this move as a step forward for a more democratic Commonwealth,[4] but the victory was short lived.

            Matthew Bevin moved into the Governor’s Mansion on December 8, 2015,[5] and within weeks had undone Governor Beshear’s work. Governor Bevin issued Executive Order 2015-052[6] and suspended Governor Beshear’s order from one month prior. In doing so, Governor Bevin asserted that Governor Beshear did not possess the legal authority to issue Executive Order 2015-871.[7] He also noted that the Kentucky General Assembly had previously established a statutory method for ex-offenders to restore their voting rights[8] and suggested that the Kentucky General Assembly act by way of a constitutional amendment regarding the matter.[9]

            The Kentucky Constitution denies those convicted of a crime the right to vote,[10] but it also gives the governor the ability to grant pardons.[11] The governor may grant a conditional pardon, which does not take effect until the wrongdoer satisfies certain requirements, or a partial pardon, which exonerates the offender of some, but not all, of the legal consequences of a crime.[12] One of the legal consequences an ex-offender may be exonerated of is the revocation of his or her civil rights.[13] The governor has the power to reinstate an ex-offender’s voting rights by granting a partial pardon.[14]

            The Supreme Court of Kentucky has interpreted the governor’s authority to grant pardons broadly.[15] Months before Governor Beshear’s executive order was signed, the Court reaffirmed its prior holdings stating that “the decision to grant clemency is left to the unfettered discretion of the Governor.”[16] The Court has not limited the civil rights which may be restored.[17] The only limitations that the Court has imposed on the governor are those explicitly set forth in the Kentucky Constitution: that for each application requesting clemency or a pardon, a statement giving the reasons for the governor’s decision must be included, and both the statement and application must be open for public inspection.[18]

            The Kentucky General Assembly has not been silent on the issue either. The legislature created a procedural regulation detailing how an ex-offender may petition the governor for a restoration of his civil rights.[19] However, the General Assembly has not attempted to limit the governor’s pardon power, nor has it made any meaningful strides toward amending the Kentucky Constitution.[20]

            Governor Beshear issued Executive Order 2015-871 as a conditional pardon, thus it was only after an ex-offender completed certain requirements that his or her voting rights would be reinstated. He issued this executive order pursuant to his authority under the Kentucky Constitution, with support from the Kentucky Supreme Court’s interpretations of the Constitution, and he was not limited in that authority by the General Assembly. Governor Beshear recognized that the right to vote is one of the most fundamental rights to a democracy.[21] He believed that such a right was vital to the reintegration of ex-offenders into the community,[22] and that the process for restoring voting rights was unnecessarily time consuming.[23] It is time that Kentucky served as a leader in criminal justice reform by granting all its citizens the right to vote.

[1] J.D. Expected May 2019.
[2] Ky. Exec. Order No. 2015-871 (2015), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2015-MISC-2015-0871-242277.pdf.
[3] Id.; Mike Wynn, Beshear Restores Voting Rights to Some Felons, Courier J. (Nov. 24, 2015, 10:26 AM), http://www.courier-journal.com/story/news/2015/11/24/beshear-restores-voting-rights-some-felons/76282838/.
[4] Brennan Center for Justice, Kentucky Governor Creates New Process to Help Restore Voting Rights to 170,000 Citizens, N.Y.U. (Nov. 24, 2015), https://www.brennancenter.org/press-release/kentucky-governor-creates-new-process-help-restore-voting-rights-170000-citizens; Erik Eckholm, Kentucky Governor Restores Voting Rights to Thousands of Felons, N.Y. Times (Nov. 24, 2015), https://www.nytimes.com/2015/11/25/us/kentucky-governor-restores-voting-rights-to-thousands-of-felons.html.
[5] Tom Loftus, Matt Bevin Sworn in as Kentucky Governor, Courier J. (Dec. 8, 2015, 1:02 AM), http://www.courier-journal.com/story/news/2015/12/08/bevin-now-governor/76664114/.
[6] Ky. Exec. Order No. 2015-052 (2015), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2016-MISC-2015-0052-243103.pdf.
[7] Id.
[8] Ky. Rev. Stat. Ann. § 196.045 (West 2001).
[9] Ky. Exec Order No. 2015-052 (2015).
[10] Ky. Const. § 145.
[11] Id.; Id. § 77.
[12] Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003).
[13] Ky. Const. § 145.
[14] Id.
[15] See Foley v. Beshear, 462 S.W.3d 389, 392 (Ky. 2015); Baze v. Thompson 302 S.W.3d 57, 60 (Ky. 2010); Anderson, 107 S.W.3d at 195-96.
[16] Foley, 462 S.W.3d at 392 (quoting Baze, 302 S.W.3d at 60).
[17] See Anderson, 107 S.W.3d at 196.
[18] Foley, 462 S.W.3d at 329; Ky. Const. § 77.
[19] Ky. Rev. Stat. Ann. § 196.045 (West 2001).
[20] Joe Sonka, Gov. Beshear Hints at Executive Action on Restoration of Voting Rights for Former Felons, Insider Louisville (Nov. 18, 2015, 1:48 PM), https://insiderlouisville.com/metro/gov-beshear-hints-executive-action-restoration-voting-rights-former-felons/.
[21] Ky. Exec. Order No. 2015-871 (2015).
[22] Id.
[23] Id.

*Featured image by Tim Evanson, licensed under CC BY-SA 2.0