"Tea Party Activist" files lawsuit to get Gingrich on the Virginia ballot: Gingrich campaign still contemplating potential legal actions

On Thursday December 29, 2011 Jonathan Moseley, unconnected with any presidential campaign, filed a lawsuit in an attempt to obtain ballot placement for Newt Gingrich in the Virginia primary. 

I have decided against critiquing the details of this lawsuit, but will essentially say there is substantial merit to much of it, but it is ultimately doomed to failure.  The major premise is that Newt Gingrich submitted over 11,000 valid signatures when only 10,000 were required. 

The major problem as I pointed out yesterday is that Gingrich has already acknowledged that at least 1500 signatures were obtained by fraud, not technical noncompliance, and not failure to state a complete, or legible address.  By Gingrich's own admission he did not submit at least 10,000 non-fraudulent signatures.

Setting the merits aside, based on statements in the press release, this is simply an odd manner to pursue litigation.

For example:

"Virginia attorney Jonathon Moseley intends to quickly amend the lawsuit to add additional Republican voters as co-Plaintiffs, encourage the Gingrich campaign to join the lawsuit or file a better one along similar lines, and to refine the legal claims and arguments in the lawsuit to fit this rather unusual situation."

Mr. Moseley encourages a campaign to file a better lawsuit than his, and refine the legal claims - very odd.

"Moseley will be seeking additional Virginia voters to join the lawsuit, legal expertise to help refine the lawsuit and work on the case, and financial contributions."

Join him, provide legal services to refine his legal claims, and give money.

Sigh.

As an aside, the procedural defects are likely enough to avoid a timely ruling in his favor.

Gingrich out of good legal arguments to get on the Virginia ballot

On Tuesday I outlined the one decent method for obtaining ballot access for Newt Gingrich or Rick Perry in Virginia.  Information has come to light, directly from the Gingrich campaign, that a paid signature gatherer committed fraud.  This fraud eliminates the possibility of Gingrich utilizing the method I suggested on Tuesday.  I had heard rumors of this, but waited for verification before publishing.

That same day Perry chose his route, one I had advised against, but it may be because he never had 10,000 signatures either regardless of the method of collection.  In his Complaint filed in the U.S. District Court for Eastern District of Virginia he indicates he submitted over 6000 signatures of qualified voters.  When pursuing a courtroom remedy, if he submitted over 10,000 signatures he believed to be valid, he should have indicated as such in the Complaint.  The decision to indicate just over 6000 signatures, is an indication he never had close to the necessary 10,000.

With the admission of approximately 1500 signatures gathered by fraud for Newt Gingrich, this means he can not claim he submitted the proper number of signatures, only with validating witness problems.

Gingrich is in as weak a position as Perry now.  Joining in Perry's suit is probably a waste of time and money.  The only option is a legislative change which is nearly impossible.

Folks will have to vote for Mitt Romney or Ron Paul in the Presidential primary in the Commonwealth of Virginia in 2012.

Perry files lawsuit to get on the VA ballot: is it a waste of time?

While I whiled away explaining how best to go about getting on the ballot in Virginia, Governor Perry had already hired a Virginia legal team and filed a lawsuit challenging his exclusion from the Virginia ballot.  Complaint, here.

For those readers perusing my earlier article you will identify that Perry chose option three which I believe is doomed to failure.  This is not because it is constitutionally incorrect, but rather that it is highly unlikely to result in preliminary relief and placement on the 2012 ballot.

Count 2 of the complaint alleges that the sheer number of signatures required, and the number form each Congressional district is so onerous as to be unconstitutional.  I have no mercy for Count 2, it will not be successful and is nothing more than an excuse for lack of organization.

An interesting point is that Perry claims to have submitted at least 6,000 valid signatures.  If he actually met the threshold, but there were problems with the form, why not just claim he submitted over 10,000 as required.  When establishing a case like this, you generally would need to obtain all the necessary signatures, only with out of state petition gatherers so you can maintain standing.

Final point and bonus for readers: There is a blatantly incorrect statement of law in the Complaint.  If you read my earlier article you might be able to find it.  I will send a prize (of minor value) to the first person to correctly identify the incorrect statement of law.

Update: Perry's Memorandum in support of a preliminary injunction has been filed.  Available here. I will leave it to readers to scrutinize the pleading.  I put the chances of success at 15:1 due to the open status of the case law on this issue in this Circuit, Perry's lack of sufficient signatures, and failure to file a lawsuit before the December 22 petition deadline.

Provoking a Virginia election law legal battle: How Gingrich and Perry could still get on the Virginia primary ballot

UPDATE: 12/28/11 ~10:00 AM
Rick Perry jumps into federal court. http://northernvirginialawyer.blogspot.com/2011/12/perry-files-lawsuit-to-get-on-va-ballot.html
National Review links to the article at http://www.nationalreview.com/corner

Update: 12/29/11 ~11:45 AM
I think Gingrich is out of luck.  Looks like a Romney-Paul primary is all but guaranteed in Virginia.

Merry Christmas to Mitt Romney and Ron Paul.  After submission of signatures to qualify for the Virginia Republican Presidential Primary in 2012, they are the only two candidates who will appear on the ballot.

Newt Gingrich and Rick Perry also submitted the requisite number of signatures, but did not qualify to appear on the ballot according to the Republican Party of Virginia.

After Gingrich learned he would be excluded, he referred to his exclusion as Pearl Harbor, and promised to wage a vigorous write-in campaign.

This has frustrated many Virginia Republicans, who currently view Gingrich as the front runner in our great Commonwealth.

There is still a way for Gingrich and Perry to get on the ballot, but it requires fast action.  It can not await the results of back room negotiations.

How did we get here?

Virginia apparently is known for having some of the most onerous ballot access requirements in the country.

Here is what is required generally of primary candidates:

"A candidate for nomination by primary for any office shall be required to file with his declaration of candidacy a petition . . . on a form prescribed by the State Board, signed by the number of qualified voters specified below . . .and listing the residence address of each such voter. Each signature on the petition shall have been witnessed by a person who is himself a qualified voter, or qualified to register to vote, for the office for which he is circulating the petition and whose affidavit to that effect appears on each page of the petition." Va. Code § 24.2-521.

Now what this means is that you have to have a certain number of signatures of qualified voters, and they must be witnessed by a qualified voter who then signs an oath that s/he witnessed the signatures on the petition.

Seems pretty straight forward, the statute then goes on to list the various offices for which the number of signatures are needed:  United States Senate, Governor, Lieutenant Governor, or Attorney General, United States House of Representatives, Senate of Virginia, House of Delegates, a constitutional office, membership on the governing body of any county or city, membership on the governing body of any town, and "for any other candidate, 50 signatures." Va. Code § 24.2-521.

Presidential Primary contenders appear to be missing from the list.

Instead Presidential primary qualification and signature gathering is governed under Va. Code § 24.2-545.

Specifically subsection B states in part:

"Any person seeking the nomination of the national political party for the office of President of the United States . . . may file with the State Board petitions signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth, who attest that they intend to participate in the primary of the same political party as the candidate for whom the petitions are filed. Such petitions shall be filed with the State Board by the primary filing deadline. The petitions shall be on a form prescribed by the State Board and shall be sealed in one or more containers to which is attached a written statement giving the name of the presidential candidate and the number of signatures on the petitions contained in the containers."  Va. Code § 24.2-545

This is a similar process to that set out in Va. Code § 24.2-521, but clearly has different requirements for filing other than a specification of the number of signatures required.

Where does the state party come in?

Virginia law then hands off the duty of certifying signatures to the state party.  That's right, the State Board of Elections does not certify any signatures, and the party has control over that process as described further in Va. Code § 24.2-545(B):

"The State Board shall transmit the material so filed to the state chairman of the party of the candidate immediately after the primary filing deadline. The sealed containers containing the petitions for a candidate may be opened only by the state chairman of the party of the candidate. The state chairman of the party shall, by the deadline set by the State Board, furnish to the State Board the names of all candidates who have satisfied the requirements of this section."  Va. Code § 24.2-545(B).

It is the duty of the party to determine who satisfied the signature requirements.  The deadline set by the State Board of Elections is December 27, 2011 pursuant to Va. Code § 24.2-527 (as an aside, although the SBE claims authority to set this deadlines pursuant to Va. Code § 24.2-527, the authority appears to be actually derived from Va. Code § 24.2-545). 

Did the state party rig this process for Romney or did an independent candidate for state office force the RPVA to scrutinize signatures in an unreasonable manner?

In my not so humble opinion, no on Romney and maybe on the lawsuit.

As indicated by Brian Schoeneman here,

”. . . plenty of other candidates with fewer resources have made it onto the Virginia presidential primary ballot since the rules were loosened in 1999. Here’s a quick list:

2008 – Barack Obama, Dennis Kucinich, Hillary Clinton, Bill Richardson, Joe Biden, John Edwards; Ron Paul, John McCain, Fred Thompson, Mike Huckabee, Rudy Giuliani, Mitt Romney.

2004 – Al Sharpton, John Kerry, Wesley Clark, Howard Dean, Joe Lieberman, John Edwards, Dennis Kucinich, Dick Gephardt, Lyndon Larouche.

2000 – Alan Keyes, Gary Bauer, George W. Bush, John McCain, Steve Forbes."

The daunting task of getting on the ballot under the current law in Virginia has been overcome repeatedly by less influential campaigns.  I see no tie to the Romney campaign  (and I have been quite critical of Romney in the past).

As indicated here and here, a lawsuit filed in October 2011 by an independent candidate, challenging the RPVA's process of rubber stamping petition signatures is supposedly the cause of greater scrutiny of petition signatures.  This might be the case.

RPVA came out with a policy for petition verification which is laid out in some detail here.  The problem is I can not find any reference to this policy prior to December 21, 2011, especially the free pass on scrutiny if you submit more than 15,000 signatures.  Looking at the metadata of the adobe document detailing the RPVA's policy regarding signature submission, it was created December 21, 2011, the day before the signature submission deadline.  This appears to be a last minute change, and the most reasonable explanation is the October 2011 lawsuit.

Gingrich seems the most interested in getting on the ballot, so what are his options?

Despite a quick suggestion that he would run a write-in campaign, it is a non-starter in the Commonwealth.  Va. Code § 24.2-529 specifically states, "No write-in shall be permitted on ballots in primary elections."  Also under Va. Code § 24.2-644(C), "At all elections except primary elections it shall be lawful for any voter to vote for any person other than the listed candidates for the office by writing or hand printing the person's name on the official ballot."  In short - no write-ins in the presidential primary.

Gingrich's second option is to try to work within the RPVA to get them to change their minds.  The problem is the RPVA was required to make its decision and transmit the results to the State Board of Elections today.  Once the results are transmitted, I do not see a way the SBE can change its procedures without Court intervention.

Gingrich's third option is to try and have the Virginia legislature pass an emergency measure, changing the requirements for the 2012 primary.  As indicated here, this would be difficult.  I believe it is impossible.

Which leaves us with option four: Litigation!

If Gingrich or Perry want to get on the ballot, they need to sue and sue now

There are numerous junk claims that can be brought: such as the RPVA system of certification is unfair, or was changed at the last minute.  These should be avoided.

There are federal constitutional claims that could be brought challenging the need to have a qualified voter gather signatures, or that signatures need to be on witnessed, and certified two sided forms.  These should also be avoided, although there is a small amount of merit to some of these claims.

The real lawsuit is based on the statutory construction of Va. Code § 24.2-545.  Once again this statute creates an entire system for submitting signatures to qualify to be on the presidential primary ballot.  This statute completely rewrites the process laid out in Va. Code § 24.2-521.  As such, I believe only Va. Code § 24.2-545 governs the gathering and submission of signatures.

Va. Code § 24.2-545 does not require:

            A residence address

            That each signature be witnessed

            That the witness be a qualified voter

The only specific detail required by Va. Code § 24.2-545 is "The petitions shall be on a form prescribed by the State Board . . ."  This is not blanket permission to the SBE to create any requirements on the form it desires.  The rigorous petition gathering requirements of Va. Code § 24.2-521 are noticeably absent from Va. Code § 24.2-545. 

To qualify to be on the ballot under Va. Code § 24.2-545 the signatures of 10,000 qualified voters, and 400 per congressional district are required.  All the superfluous information is not required. 

The way to challenge this is in the Circuit Courts of the Commonwealth of Virginia.  It must be done on an emergency basis, as relief will be unavailable by late January when absentee ballots must be mailed.  Every day of delay increases the chance of a loss in court.  Going to court is no guarantee, but it provides the highest probability of success at altering the primary ballot. 

The Richmond City Circuit Court is accustomed to this type of political emergency lawsuit.  Getting on the ballot is not a public relations issue, it is a legal one.

Gingrich now needs to go pay some lawyers with the money he should have spent on petition gathering.

Great coverage of this issue can be found at two of Virginia's premier conservative blogs:

Bearing drift

Virginia Virtucon

Cuccinelli for governor bumper stickers

Folks,

I have ordered Cuccinelli for Governor bumper stickers.  His campaign staff have all but assured me such bumper stickers will not be available until the spring.

My stickers will be here within a couple of weeks.  If you desire a KTC for Gov bumper sticker feel free to email me a name and address at ppradoslaw@ NOSPAMgmail.com, without the nospam.

Once I have them in my possession I'll post a pic.  They are an oval that says "don't tread on me" "KTC" "Cuccinelli for VA Governor"

the Constitution matters folks.

Update: In retrospect they are a little nonconformist, but they suited my preference.