Sunday, November 3, 2013

A Libertarian’s perspective on Ken Cuccinelli



Every election, philosophical libertarians are faced with a conundrum: should we vote for principle/stay home or vote for the lesser of two evils.  Democrats tend to be better on personal liberty issues and Republicans tend to be better on economic liberty issues.  Occasionally you find the odd “moderate” that seems to be bad on both sets of issues.  At least then we have something to vote against.

I am supporting Ken Cuccinelli for Governor in 2013.  I found this decision easy, but my hope is that philosophical libertarians will take a strong look at Cuccinelli.

The source

I worked for Ken Cuccinelli as an attorney for the first four years of my career up until he took office as Attorney General.  During that time I was exposed to many aspects of his life: his law career, political actions, and his family.  I have had uncountable private conversations with Cuccinelli about his beliefs and actions.  

What follows is my take on his beliefs vis-a-vis libertarianism.  Unless I attribute the statement directly to him, it is merely my understanding.  I will point out a few tidbits that he has not hidden, but are not known in a widespread fashion.

Principled stand on the Second Amendment

Most people know that Ken Cuccinelli is a strong supporter of the Second Amendment.  What most people do not know is that support for gun control polled well above 50% in his Senate district, and he knew it was the case.  In three elections there he did not waiver in his support of the Second Amendment despite knowing it was a dangerous position to take politically.  He was repeatedly elected on principle and stuck to those principles.  Libertarians tend to worry that Democrats and Republicans will abandon their libertarian leaning principles upon election.  Cuccinelli does not.

Opponent of the overreach of police powers

Whether it is search and seizure, the rights of the accused, or dare I say, the death penalty, Cuccinelli repeatedly falls on the side civil liberties.  Cuccinelli was constantly seeking to reduce the ability of localities to spy on citizens, whether it be through warrantless searches or traffic cameras.  He supported restoration of voting rights to released felons.  He knows all too well that our criminal justice system, despite its general effectiveness and a great many honorable public servants, sometimes falls short of doing justice.  Cuccinelli personally took up the cause of the 27 year wrongfully imprisoned Thomas Haynesworth.  To the press and to casual observers this appeared to be an aberration.  To those of us who knew Cuccinelli, none of this surprised us.  This is one of the reasons why Cuccinelli has such a dedicated base of followers.

Defender of the First Amendment

Ken Cuccinelli was lead counsel on a major case seeking to invalidate a law passed by the General Assembly that restricted the free association of political parties.  This lawsuit originally entitled Miller v. Brown, successfully invalidated a restriction on how political parties can nominate candidates.

Cuccinelli’s religious beliefs

Cuccinelli takes a lot of flak for his stances on abortion and gay marriage.  Cuccinelli believes that life begins at conception and deserves protection in the womb.  He does not want to prevent access to contraception, but he does not consider abortion, chemical or surgical, to be “contraception.”  This is identical to the position of Ron Paul, a supporter of Cuccinelli.  Ron Paul reached his conclusions, in part, from being a practicing obstetrician.  Cuccinelli does not take this position lightly.
Cuccinelli is opposed to state sponsored gay marriage.  He does not believe in “criminalizing blow jobs.” It would take 500-1000 words, perhaps more, to explain the appeal of the ruling invalidating Virginia’s anti sodomy law.  In short, the Attorney General’s brief submitted to the 4th Circuit en banc, and the Supreme Court both fully acknowledged in writing that the law cannot constitutionally ban sexual activity between consenting adults.  It is my strong belief that the tide of public opinion and the court system will overtake his positions in the next 5-10 years.
If your feelings on one or both of these issues control your vote, please vote your conscience, just please remember not to let the perfect be the enemy of the good.

The final take

Cuccinelli, in the end, believes that the greatest minority is the individual and the protection of individual liberties is the primary purpose of government.  Civil liberties, economic liberties, and constitutional freedom are the baseline for Cuccinelli.  In the end, Cuccinelli is the strongest pro-liberty candidate to run statewide in Virginia with a reasonable chance of winning in modern history.  He is not the lesser of two evils, he is a good that is worthy of your consideration. 
Please get out and vote on Tuesday November 5, and no matter your take on Cuccinelli I look forward to working with all liberty minded individuals in the future.

Saturday, November 2, 2013

Gay marriage lawsuits taking back seat in waning days of the campaign

I predicted that the gay marriage lawsuits in Virginia would have a significant impact on the gubernatorial campaigns in the final days. 

Apparently neither Cuccinelli nor McAuliffe appear interested in raising the fact that the AG's office must address the issue in court right at this moment. 

The media appears disinterested as well.  I acknowledge I was wrong about the effect it would have on the election.

Friday, September 6, 2013

Gay Marriage case on course to affect Virginia's Governor's race



The first Virginia case after the landmark U.S. v. Windsor ruling on gay marriage has undergone some recent changes that will truly push the matter to the forefront immediately before November's elections.

A New Complaint

Bostic & London have filed an Amended Complaint adding two additional plaintiffs, Carol Schall and Mary Townley.  Taking a cue from the ACLU case, they added Janet Rainey, the State Registrar of Vital Records, as a Defendant.

What happened to Cuccinelli?

Gov. McDonnell and AG Cuccinelli have been voluntarily dismissed as Defendants.  In these types of cases, you have to figure out the correct state actors to sue.  It is not always obvious which actors a court expects to be listed as a defendant.  This probably looks like a good thing for Cuccinelli as he is no longer listed as a defendant, it may appear to have less effect on him before the election.  But, the Commonwealth has intervened in the case as an "interested party."  This means that AG Cuccinelli's office will still be submitting briefs and taking stances before the election.  Cuccinelli will have to defend these actions.

The ACLU case does not appear to be moving to the forefront

The ACLU of Virginia finally got around to filing a class action lawsuit challenging Virginia's ban on same-sex marriage.  The opposing parties have filed motions to dismiss, and the ACLU has filed a motion to certify all members as a class.  This lawsuit was filed in the U.S. District Court for the Western District of Virginia which is reasonably fast, but not known for the haste in which the Eastern District proceeds. 

None of the motions have been scheduled for a hearing, and given the tremendous effort it takes to obtain a class action certification, any public fight in this case in the next two months will likely center on this boring procedural step, which will have substantially less political effect on the Governor's race.

With all these delays will this case still have any effect on the election?

This is where the Bostic case gets interesting.  The parties submitted an agreed order setting response schedules for the amended complaint and a briefing schedule for summary judgment motions.  Summary judgment is the means by which this case will be adjudicated in total.  It is the equivalent of a trial in this matter. 

Here is the schedule:

Initial summary judgment motions from all parties are due September 30, 2013.
Response briefs are due October 24, 2013.
Final reply briefs are due October 31, 2013.

The election is November 5, 2013

AG Cuccinelli's office, on behalf of the Commonwealth will have to file major briefs 36 days, 12 days, and 5 days before the gubernatorial election.  October is the most critical time of the election season.  Cuccinelli will be held accountable for every word in these briefs.

This makes it easy to stand by my initial prediction that this will have a substantial negative impact on Cuccinelli.

Tuesday, July 30, 2013

Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season


As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage.  As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait. 

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment.  No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor.  The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989.  London is a navy veteran and a real estate agent.  Bostic is a college professor at Old Dominion University.  They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down.  They apparently have no desire to go and be married under another state's laws.  The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination.  The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions.  As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General.  Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge.  Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought.  Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race. 

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage.  It is also the most likely matter to have any serious affect on the gubernatorial campaign.  Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe.  Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach.  The firm appears to focus on personal injury and criminal representation.