First Amendment Licensing Rules Stop at the Executive Door:
A Comprehensive Commentary on George Hawkins v. Glenn Youngkin, 92 F.4th ___ (4th Cir. 2025)

1. Introduction

In George Hawkins v. Glenn Youngkin the United States Court of Appeals for the Fourth Circuit confronted a novel constitutional challenge to Virginia’s procedure for restoring the right to vote to individuals previously convicted of felonies. Virginia – uniquely among the fifty States and the District of Columbia – makes reenfranchisement purely discretionary: a felon regains the franchise only if the Governor, exercising his historic clemency power, chooses to “remove political disabilities.” George Hawkins, a first-time voter released from prison in 2023, claimed that such unbridled discretion operated as a forbidden “prior restraint” on his First-Amendment right to political expression (voting) and that the absence of any deadline for gubernatorial action compounded the constitutional infirmity. The district court disagreed, and the Fourth Circuit has now affirmed, announcing an important limitation on the reach of the unfettered-discretion doctrine.

2. Summary of the Judgment

• Holding: The Fourth Circuit affirmed summary judgment for the Governor and Secretary of the Commonwealth, holding that Virginia’s reenfranchisement regime – wholly vested in the executive clemency power – is not subject to the First-Amendment licensing (“unfettered-discretion”) doctrine.
• Key Ruling: Because gubernatorial restoration of voting rights is an exercise of clemency rather than an administrative licensing scheme, traditional First-Amendment anti-censorship rules do not apply. Judicial review remains available only for narrow constitutional violations such as race-based or viewpoint-based decisions, or total procedural arbitrariness.
• Outcome: Hawkins’s facial challenge fails; Virginia may lawfully retain a discretionary, individualized restoration process unless and until the state constitution is amended or the Governor voluntarily adopts objective criteria.

3. Analysis

3.1 Precedents Cited and Their Influence

• Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) & City of Lakewood v. Plain Dealer, 486 U.S. 750 (1988)
  Core licensing cases establishing that government may not condition speech on a permit issued under vague or subjective standards. Hawkins relied heavily on these.
• Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998)
  Recognized that minimal due-process protections apply to clemency, yet emphasized the traditional breadth of executive pardon power. The Fourth Circuit cited Woodard to show that judicial oversight of clemency is limited but not nonexistent.
• Beacham v. Braterman, 396 U.S. 12 (1969) (summary aff.)
  Upheld Florida’s discretionary restoration scheme against equal-protection and due-process claims. Appellees invoked Beacham for near-total insulation of clemency. The Fourth Circuit read Beacham narrowly, noting later cases recognizing some reviewability.
• Hunter v. Underwood, 471 U.S. 222 (1985)
  Allowed equal-protection attack on racially motivated disenfranchisement. Demonstrates that clemency and voting-rights rules can be invalid when grounded in illicit criteria.
• Hand v. Scott, 888 F.3d 1206 (11th Cir. 2018) & Lostutter v. Kentucky, 2023 WL 4636868 (6th Cir.)
  Sister-circuit opinions rejecting First-Amendment unfettered-discretion challenges to similar reenfranchisement schemes. The Fourth Circuit aligned itself with this emerging consensus.
• Foundational clemency cases: United States v. Wilson (1833); Ex Parte Garland (1866); Schick v. Reed (1974). Quoted to trace the English and American pedigree of broad executive pardon authority.

3.2 Court’s Legal Reasoning

1. Licensing vs. Clemency – a Categorical Distinction
   The court identified four structural differences (borrowed from the Sixth Circuit): clemency is retrospective, one-time, rooted in executive prerogative, and restores a right lost by crime; licensing is prospective, renewable, regulatory, and governs an extant right. Because the First-Amendment doctrine arose to police regulatory licensing, transplanting it to pardons would contradict constitutional history.
2. Historical Limits on Judicial Role
   Drawing on English practice, the Federalist Papers, and Supreme Court precedent, the panel stressed that political accountability – not judicial standards – traditionally cabins clemency. Courts may intervene only where the executive employs suspect classifications, viewpoint discrimination, or total arbitrariness.
3. No First-Amendment Right to Vote per se
   While voting is expressive, the right to vote is protected primarily by the Fourteenth and Fifteenth Amendments. Thus, Hawkins could not bootstrap a full First-Amendment prior-restraint analysis onto a realm already governed by specific constitutional provisions allowing felon disenfranchisement.
4. Narrow Reading of Precedent
   The court rejected Hawkins’s reliance on Irby and Martin, distinguishing ballot-access cases (where voters already have the franchise) from post-conviction restoration (where the franchise has been constitutionally forfeited).

3.3 Likely Impact

• Fourth-Circuit Territory (VA, MD, NC, SC, WV): Governors retain wide latitude over rights-restoration programs. Litigants must now craft challenges around equal-protection or explicit viewpoint discrimination – not unfettered-discretion arguments.
• National Trend: With the Fourth, Sixth, and Eleventh Circuits aligned, a solid “mini-circuit split” disfavouring First-Amendment licensing attacks is forming. Unless another circuit diverges, Supreme Court review appears unlikely.
• State-Level Reform: The opinion’s historical survey underscores that most States automate reenfranchisement; Virginia’s political branches may feel renewed pressure (or freedom) to act without fear of federal override.
• Litigation Blueprint: The decision expressly leaves open challenges grounded in racial discrimination, partisan bias, or irrational classifications (e.g., height). Future plaintiffs must gather direct evidence of such taint rather than rely on structural arguments.

4. Complex Concepts Simplified

• Executive Clemency – A Governor’s or President’s constitutionally granted power to grant pardons, commutations, or otherwise relieve legal disabilities stemming from a conviction.
• “Unfettered-Discretion” / Prior-Restraint Doctrine – In First-Amendment law, a rule that government cannot require licenses for speech (parades, films, protests) unless clear, objective criteria limit official discretion; otherwise it chills expression.
• Rational-Basis Review – The most deferential level of constitutional scrutiny. A law survives if reasonably related to a legitimate governmental purpose. Applies to voting rules affecting felons because disenfranchisement is expressly allowed by § 2 of the Fourteenth Amendment.
• Facial vs. As-Applied Challenge – A facial attack argues a law is unconstitutional in all applications; an as-applied challenge targets how the law operated in a particular instance.

5. Conclusion

Hawkins v. Youngkin crystallises a key boundary in constitutional doctrine: the First-Amendment safeguard against discretionary licensing stops where the Governor’s clemency power begins. While the franchise is undeniably a conduit for political expression, felons who have lost that franchise cannot demand the procedural protections designed for would-be speakers seeking parade permits or newspaper racks. The court’s careful historical and structural analysis reaffirms the exclusivity of executive mercy while preserving judicial review for overtly discriminatory or irrational practices. For reformers, the opinion redirects energy from the federal courthouse to the political arena and state constitutional amendment process. For constitutional lawyers, it provides an authoritative roadmap on when – and when not – to invoke the unfettered-discretion doctrine. Ultimately, the decision underscores a recurring theme in American law: some questions of democratic inclusion, though profoundly important, remain chiefly questions for the electorate and their elected representatives, not for the judiciary.