A formerly incarcerated Virginia man convicted of attempted murder as a minor couldn't argue his constitutional rights had been violated by Gov. Glenn Youngkin, who refused to allow him to vote, the Fourth Circuit said, finding the state's process of vesting reenfranchisement in its top executive was constitutional.

In a unanimous published opinion Thursday, the appeals court said George Hawkins' argument that the governor's control over felons' voting rights violated a First Amendment prohibition against "unfettered discretion" failed because Youngkin wasn't regulating an existing right. Instead, he was determining whose rights got restored, which fell under clemency, the panel said.

Although placing voting restoration for felons entirely under clemency power was atypical, making Virginia the only state with felons' reenfranchisement "entirely within the governor's pardon power," it was legal, according to the panel.

"States may constitutionally disenfranchise felons, and the Constitution does not require states to ever restore those voting rights once lost, even after a person has completed their sentence and any period of parole," wrote Judge James Andrew Wynn for the panel.

Hawkins said the governor couldn't exercise absolute power over felons' voting rights because the Constitution "forbids administrators from exercising unfettered discretion over whether to grant licenses that implicate an individual's First Amendment rights," including the right to vote, Judge Wynn said.

However, that law couldn't be relied upon, because felons had legally been stripped of their rights to vote, according to the panel.

"Hawkins's 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," Judge Wynn wrote.

In an email to Law360, Chloe Smith, spokesperson for the Virginia attorney general's office, said, "We are pleased with the unanimous ruling from the panel."

Jonathan Sherman, who represented Hawkins and works for the Fair Elections Center, said his team was considering appealing to try for a full-court or en banc decision.

"The reason we brought this case was based on the risk of viewpoint discrimination," which Sherman said was possible when clemency can be granted at the discretion of one person.

Although Virginia outlined its process for restoring voting rights, arguing that it did not discriminate on the basis of race or political views, the governor's restoration decisions were still subjective, Sherman said.

"There's no way to police that, because the system is completely arbitrary," he said, adding that none of the criteria given by the state were actually enforceable "because they don't constrain [Youngkin's] discretion in any way."

Hawkins said he had applied to have his voting rights restored and was rejected in 2023, after he was released from prison, according to the panel. That same year, he joined the lawsuit against the governor and commonwealth secretary that had been ongoing with prior plaintiffs, the court said.

In 2024, the defendants were granted summary judgment by a Virginia federal court on the grounds that First Amendment claims didn't exist for Hawkins, whose right to vote was nonexistent, as it had been stripped by the state.

Sherman objected to the court's reasoning. "Making that federal constitutional law turn on a state law just flips our system on its head," he said.

States across the nation deal with felons' voting rights differently, the panel said, noting that even though rights don't have to be restored, "all states provide a path to re-enfranchisement, and in most, re-enfranchisement occurs automatically at some point."

As of 2024, Vermont, Maine, Puerto Rico and the District of Columbia never revoke voting rights for prisoners, while 25 states automatically restore voting rights for most felons upon release, with eight of those states treating election-related crimes differently, according to the panel.

In 12 other states, felons became eligible for automatic reenfranchisement after completing their sentences, sometimes subject to a waiting period or the payment of offense-related debts, according to the panel.

Eight more states required those convicted of certain crimes to apply for restoration via state executive branches, according to the panel, which said Iowa and Kentucky joined Virginia in "indefinitely" stripping voting rights from felons. However, though governor-sanctioned reenfranchisement is required in Iowa and Kentucky, executive orders in those states provide for automatic voting restoration for felons in most circumstances, the panel explained.

The Virginia General Assembly is currently working to amend the state's constitution via a ballot initiative aimed at automatically restoring voting rights to felons upon release. "The next General Assembly must also agree to it before it is submitted to the voters for their approval," the panel said.

U.S. Circuit Judges James Andrew Wynn, Pamela A. Harris and DeAndrea Gist Benjamin sat on the panel. 

Hawkins is represented by Jonathan Sherman, Michelle Kanter Cohen, Nina G. Beck and Emily P. Davis of the Fair Elections Center and Victor M. Glasberg of Victor M. Glasberg & Associates.

Youngkin and Secretary of the Commonwealth Kelly Gee are represented by Jason S. Miyares, Steven G. Popps, Rick W. Erberstadt, Meredith L. Baker, Kevin M. Gallagher and Erika L. Maley of the Virginia attorney general's office and Charles J. Cooper, Haley N. Proctor and John D. Ramer of Cooper & Kirk PLLC.

The case is Hawkins v. Youngkin, case number 24-1791, in the U.S. Court of Appeals for the Fourth Circuit.

--Editing by Kelly Duncan.