Tuesday, December 27, 2011

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:


  1. Thank you very much for your effort...you are a true American!

  2. Is Frami v. Ponto applicable?
    From http://ballotpedia.org/wiki/index.php/Frami_v._Ponto
    “Frami v. Ponto was decided in the United States District Court for the Western District of Wisconsin in 2003. In this case, district court judge Barbara Crabb ruled that a Wisconsin statute requiring that petition circulators be residents of Wisconsin, as well as residents of the political subdivision in which they were circulating petitions, was an unconstitutional abridgement of the first amendment rights of petition circulators and candidates for elective office.”
    Crabb enjoined defendant Steven Ponto, the chairman of the Wisconsin State Elections Board from enforcing the statute mandating residency requirements for petition circulators.
    See the decision here:
    Paul Malischke
    Madison, WI

  3. P/M
    The issue of the constitutionality of the residency requirement for signature gatherers is still in flux in the Fourth Circuit. A recent decision from July 2011 regarding this issue states that the old reasoning supporting the residency requirement is no longer valid, but it may still be constitutional.

    The Fourth Circuit sent the case back to the E.D. Va. , and I do not know if the trial level court has yet opined.

    My point is that Gingrich does not want to get mixed up in this particular fight, not because it is completely unwinnable, but because it has a much lower probability of yielding preliminary relief.

    The case is Lux v. Rodrigues, Docket No. 10-1997. Link: http://www.scribd.com/doc/76614811/Lux-v-Rodrigues-4th-Circuit-opinion-2011

  4. Lux v Rodrigues is set for oral argument in US District Court on January 17, 2012.

  5. NotCatherineCrabillDecember 27, 2011 at 9:06 PM

    "Virginia's requirement for petition circulators to be eligible or registered qualified voters in the state imposes a severe burden on Plaintiffs' [sic] freedoms of speech and association because it substantially limits the number of eligible petition circulators."

    Seriously, Rick? There were 5,116,942 registered voters in Virginia as of November 5, 2011. How many circulators did you need to get 10,000 valid signatures? 1 billion?

  6. Great post, lots of information. Thanks for the link.