The U.S. Supreme Court on Monday declined to hear a challenge to Virginia's voting rights restoration system for people with felony convictions, leaving in place a Fourth Circuit decision that upheld the system as constitutional.

Under the Virginia Constitution, people with felony convictions are permanently disenfranchised. They can have their voting rights restored only by petitioning the governor, who has sole discretion to grant or deny the petitions on a case-by-case basis.

Last August, the Fourth Circuit held that the First Amendment's "unbridled discretion doctrine" — which provides that laws or regulations giving government officials standardless authority to permit or deny speech are facially unconstitutional — does not apply to Virginia's voting rights restoration system.

By denying review, the high court ends a legal challenge brought by George B. Hawkins Jr., who spent 33 years in prison after being convicted of attempted murder as a minor and was released on May 3, 2023. Hawkins, who never voted in his life, submitted his application weeks after leaving prison, but then-Gov. Glenn A. Youngkin rejected it, saying he was "ineligible" to have his voting rights restored.

According to The Sentencing Project, more than a quarter-million Virginia residents are barred from voting due to felony-level convictions. The state has the fourth-highest disenfranchised population in the nation, behind Florida, Texas and Tennessee.

In 2021, then-Gov. Ralph Northam, a Democrat, issued an executive order creating a process for people released from prison, including those convicted of felonies, to qualify for restoration of voting rights. Youngkin, a Republican, ended that practice upon taking office in January 2022, once again requiring people with felony convictions to petition his office.

Under the system put in place by Youngkin, a person is eligible to apply for restoration of voting rights only after they have "finished any term of incarceration as a result of a felony conviction." The Virginia secretary of the commonwealth reviews applications and makes recommendations, which are then forwarded to the governor for final consideration.

In July 2023, Hawkins joined a lawsuit in federal court in Richmond brought by other formerly incarcerated individuals who challenged the state's voting rights restoration system as unconstitutional. The original plaintiffs later dropped out of the case.

Filed under the federal civil rights statute, the lawsuit argued that the governor's authority to re-enfranchise Virginians violated the First Amendment's unfettered discretion doctrine, which the plaintiffs said was supported by a well-settled line of U.S. Supreme Court decisions. The complaint also alleged the absence of a reasonable, definite time limit for the restoration process was unconstitutional.

In the complaint, Hawkins told the court that the voting rights restoration system was ripe for abuse.

"Officials with absolute authority to selectively enfranchise U.S. citizens with felony convictions may grant or deny voting rights restoration applications for pretextual reasons or no stated reason, while secretly basing their decision on information — or informed speculation — about the applicant's political affiliations or viewpoints," the complaint says.

Hawkins argued that nothing in Virginia law prevented the governor — who could easily review applicants' donations, voter registration records, online publications and social media posts — from withholding a "license to vote" based on a person's prior or ongoing expression, including political views.

Citing cases applying the doctrine, including the U.S. Supreme Court's 1988 decision in City of Lakewood v. Plain Dealer Publishing Co. — which held that municipal ordinances granting officials unbridled discretion to approve or deny newsrack permits on public property violate the First Amendment, Hawkins argued Virginia's discretionary restoration process functions as an unconstitutional licensing scheme.

In August 2024, U.S. District Judge John A. Gibney Jr. of the Eastern District of Virginia ruled that although "no one would suggest" the restoration process was transparent or even appeared fair, it was constitutional.

The judge found that the governor's role in restoring voting rights was not part of a licensing scheme subject to the unfettered discretion doctrine, but instead stemmed from his clemency power, which in most instances cannot be reviewed by courts.

"Much like a monarch, the governor receives petitions for relief, may or may not rule upon them, and when he does rule, need not explain his reasons," Gibney wrote. "But transparency and the appearance of fairness are not the issues in this case."

Gibney reasoned that, unlike speech licensing cases, where government action functions as censorship by regulating how a person exercises an existing right, Virginia's system determines which individuals may regain a right they have already lost. He found that distinction crucial.

"Hawkins is not subject to a licensing scheme governed by the unfettered discretion doctrine," he concluded.

On appeal, a three-judge Fourth Circuit panel agreed that the governor's discretion in restoring voting rights falls squarely within his clemency power and does not constitute a licensing scheme.

"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," Judge James Andrew Wynn wrote for the panel. "Hawkins's claim fails because, as other federal courts of appeals to consider this question have concluded, the discretionary exercise of Virginia's clemency power does not constitute a licensing system."

Hawkins turned to the U.S. Supreme Court on Dec. 15, filing a certiorari petition arguing that the state's re-enfranchisement system involved "amorphous standards" that created an "intolerable risk of viewpoint discrimination."

Less than two weeks after Virginia Gov. Abigail Spanberger, a Democrat, took office in January, the Virginia Office of the Attorney General filed a waiver in the Supreme Court indicating the governor did not intend to respond to Hawkins' petition.

A spokesperson for the Virginia attorney general's office did not immediately respond to a request for comment. Jonathan Lee Sherman, an attorney representing Hawkins, declined to comment.

Hawkins is represented by Jonathan Lee Sherman of Fair Elections Legal Network.

The governor is represented by Kevin M. Gallagher of the Virginia Office of the Attorney General.

The case is Hawkins v. Spanberger, no. 25-713, in the Supreme Court of the United States.

--Editing by Philip Shea.