Cuccinelli not responsible for investigating vote suppression, yet (headlines failing to match the story)

A Republican employee of a vendor was caught throwing away voter registrations, and the media lazily and wrongfully blames the Attorney General of Virginia, Ken Cuccinelli for failing to investigate.

A twenty-three year old overzealous dweeb does something truly heinous

On October 18, 2012, Colin Small a 23 year old from Pennsylvania was arrested for throwing away 8 voter registration forms in a dumpster in Rockingham County.  It is unknown the reason for throwing away the forms, but the following theories have been suggested:

            1. It is part of a broad conspiracy to defraud voters.

            2. Colin failed to submit the forms by the deadline, and panicked.

Regardless, everyone seems to agree that Colin worked for a company called Pinpoint that was doing contracting work for the Republican Party of Virginia.

Soliciting voter registration applications and not submitting them, thereby resulting in disenfranchisement of voters, is truly heinous.

Don McEachin shows (once again) how little he knows about the law and Virginia government

In the wake of this mess, Virginia's former Democratic candidate for Attorney General stepped up demanding that Attorney General Cuccinelli investigate the actions of Colin Small.  State Senator McEachin should know that AG Cuccinelli does not have the power to initiate an investigation. 

McEachin either does not understand or does not care about the law here, and the media has taken off with the story.

What criminal investigative powers does the Attorney General have?

AG Cuccinelli has limited criminal investigative powers as enumerated in the Virginia Constitution and statutes.

Article V § 15 of the Virginia Constitution governs the Attorney General and says nothing about investigative powers of any kind.

Under Va. Code § 2.2-511 the Virginia Attorney General has the power to initiate criminal investigations in limited circumstances, specifically:

"A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in § 24.2-104 . . ."

AG Cuccinelli can investigate electoral crimes as provided in Va. Code § 24.2-104, which states in relevant part:

"When the State Board is of the opinion that the public interest will be served, it may request the Attorney General, or other attorney designated by the Governor for the purpose, to assist the attorney for the Commonwealth of any jurisdiction in which election laws have been violated."

The "State Board" in this instance is the State Board of Elections ["SBE"].

Additionally under Va. Code § 24.2-104:

"The attorney for the Commonwealth or a member of the electoral board of any county or city may make a request, in writing, that the Attorney General appoint a committee to make an immediate investigation of the election practices in that city or county . . ."

In no manner can AG Cuccinelli initiate an investigation himself.  The Governor can authorize the investigation under Va. Code § 2.2-511 and the SBE, local Commonwealth's Attorney (Constitutionally elected prosecutor), or local electoral board member can initiate the investigation under Va. Code § 24.2-104.

The SBE has chosen not to investigate.

The left gets this (mostly) wrong

In light of McEachin's statements, the left has mercilessly pushed this story as a failing of AG Cuccinelli, but only in the headlines of articles.  When reading into the text of the articles, the accusation against AG Cuccinelli has absolutely no substance.

Headlines are as follows:

Attorney General Refuses To Investigate Man Arrested For Dumping Voter Registration Forms

Virginia AG won’t investigate GOP worker who dumped voter registration forms

Will Votergate Come Back to Haunt Cuccinelli?

Virginia Refuses To Investigate The Dumping Of Voter Registrations, Charged To A Republican Operative

Attorney general won’t investigate worker arrested for dumping voter registrations

AG Cuccinelli seeks responsibility and McEachin doubles down on stupidity

In response to the demands being placed on AG Cuccinelli, he responded to McEachin by requesting that the Attorney General's office be given additional authority to initiate investigations of election law violations without waiting for a request from the SBE. 

According to the Washington Post McEachin responded as follows:

"McEachin (D-Richmond) said he has seen the letter [from Cuccinelli] and suggested that political motivations could be the reason Cuccinelli is not pursuing the issue."

I am beginning to hope McEachin runs statewide again.

Virginia ACLU suggests two majority-minority Congressional districts: Democratic Senators scramble to validate their own substandard plan

UPDATED

Word reached the mainstream media today that the Virginia ACLU is shopping around an alternative Virginia Congressional redistricting proposal that contains two majority-minority districts.  The reason why this matters is that there is case law that suggests that if there can be even one more majority-minority district, then the redistricting plan with fewer majority minority districts is prima facie (presumed) discriminatory.  It is not clear to me if the alternate plan actually has to be proposed as legislation, or if any person can suggest the alternative plan to raise the spectre of litigation.

What was the status before this plan?

Virginia has a heavily gerrymandered House plan supposedly supported by the existing Congressional delegation.  Virginia also has a heavily gerrymandered Senate plan that creates a minority influence district out of the current minority-majority district, and then turns another district into a majority-minority district.  Both are expected to fail, and then a compromise to be worked out.  Since Governor McDonnell flexed his Veto pen on state level redistricting, and the existence of the alleged support of the existing Congressional delegation, it is safe to say the Republican House plan has a greater chance of success.

But legislators would be begging for a lawsuit if they do not support the ACLU plan, right?

According to Sen. Don McEachin, no.  As reported by the Washington Post: “the Department of Justice looks to the percentage of residents in districts who are older than 18 and are non-Hispanic black when examining the number of black residents in each district.”  Based on that analysis both majority-minority districts become minority influence districts. 

Mind you, the Department of Justice is not a substitute for a Federal Judge if the plan is challenged in Court (the DoJ can be a substitute for a Federal Judge in the preclearance process, only).

So is the ACLU’s plan DOA?

Not exactly.  The Department of Justice, under Georgia v. Ashcroft, 539 U.S. 461 (2003) and Beer v. United States, 425 U.S. 130 (1976) should be looking at the totality of opportunity for minority candidates.  This totality of opportunity should take into consideration minority population, minority voting age population, as well as minority voter registration among other items as legitimate factors in determining if a plan should be precleared.  

Additionally, I just do not understand how Sen. McEachin, could think the ACLU plan is any worse than the Senate plan.  

So how does the ACLU plan look?

Do not worry, it really is another gerrymandered atrocity.   I would say let it be submitted  to committee and debated, but there really has not been much actual debate on any Virginia redistricting plan so far.  Virginians should be used to this by now.  I am just waiting for the report from somewhere in Virginia for any of these plans that a precinct split resulted in residents of an apartment building being redistricted into different districts.

UPDATE: As of June 9, 2011, the Senate has passed a modified version of its previous plan.  The districts are far more compact and arguably more compact than the House plan.  It is far from perfection, and the majority-minority district barely tops over 50% Black Voting Age Population, making it harder to gain preclearance.  Nonetheless, it has only taken two and a half months, but the Senate Democrats are figuring out how to gain more support by making their plans more reasonable.  The publicly available information on this plan can currently only be found on the Division of Legislative Services redistricting website.

For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.

Virginia Attorney General retains Civil Investigative Demand powers

Ignoring the fact that Virginia’s current Attorney General will not always be Virginia’s Attorney General, two Senate Democrats (Sen. Don McEachin and Sen. Chap Petersen) and a Delegate (Del. David Toscano) in a politically motivated manner sought to curb the powers of the Virginia Attorney General to investigate fraud perpetrated on the Commonwealth of Virginia.

Today that attempt was unceremoniously put to rest in the House of Delegates Civil Subcommittee by voice vote.  The Democrats on the Subcommittee did not appear to even force a recorded vote.  Washington post coverage can be found here.

Attorney General Cuccinelli, and future Attorneys General, will retain their Civil Investigative demand powers.

A word to statewide office seekers:  If pushing politically motivated legislation that you know will fail, make a bigger deal about it.  Activists will remember how hard you fought for the things you believe in.

A link to a press conference of the bills’ supporters so you can hear their own words can be found here.

I discussed the flaws of the original proposals here.

Sen. McEachin’s quiet capitulation on his bill is discussed here.

McEachin gives up on Civil Investigative Demands

On January 16 I discussed Sen. Don McEachin’s (D - Richmond) blunt overreaction to the perceived problem of an Attorney General being able to investigate fraud in government contracting.  SB1314 would have completely eliminated the investigatory power of the Virginia Attorney General (regardless of the nature of the fraud, or the political party of the Attorney General) prior to the filing of a lawsuit.  

On January 31, 2011 this bill was “incorporated” into Sen. Chap Petersen’s (D - Fairfax) SB831.  SB831 prohibits Civil Investigative Demands [CIDs] in the limited instance in which a CID is issued against an academic institution and the subject matter is “a matter of academic inquiry or research.”  In a cursory manner, I criticized the merits of Sen. Petersen’s narrower bill in an update to the January 16 post.  At Least Sen. Petersen’s bill targets directly the behavior he finds objectionable, the investigation of Climategate through the use of CIDs.

Since SB1314 and SB831 had somewhat common goals it makes some since for one to be the primary bill, and the other to be incorporated.  Since SB831 is now the primary bill and it has passed out of committee we should look at what the combined bill looks like compared to the original.  See the current version here, and the original here.

So what parts of SB1314 were incorporated in SB831?

 ANSWER after the jump:

Sen. McEachin proposes to eliminate powers of the Attorney General

UPDATE:  Narrower proposal offered by Sen. Chap Petersen
UPDATE2: McEachin gives up on Civil Investigative Demands Here

As suggested in the Spring of 2010, Sen. Don McEachin (D - Richmond) has proposed a bill to eliminate the power of the Attorney General of the Commonwealth of Virginia to issue civil investigative demands [CID] in cases of suspected o fraud on the taxpayers. 

SB1314 takes away all court enforceable investigative authority from the AG until after a lawsuit is filed.  It does not water the subpoena process down or impose limitations.  Instead, the bill completely eliminates the process and the nine statutes underlying the process.  Pretrial investigative authority will be limited to that which the AG can gain voluntary compliance. 

At this point, many people know about the AG's attempt to obtain documents through this civil investigative demand from the University of Virginia.  Unfortunately Sen. McEachin's heavy handed attempt to put a check on the current AG's power will have the unintended consequence of leaving Virginia less able to properly exercise its rights under the Virginia Fraud Against Taxpayers Act [FATA]. 

General Assembly Proposals: Judicial foreclosure

If Senator Don McEachin (D-Richmond) has his way, a major shift in the method of foreclosures may be in store for residents of the Commonwealth.  The proposal submitted in SB798 would convert Virginia's current non-judicial foreclosure sale system into a judicial foreclosure sale system.

Virginia's Current system: non-judicial foreclosure.

In Virginia's current system foreclosure sales are conducted by a Trustee appointed by the lending institution but legally representing the interests of the lender, and the owner.  The Trustee must follow some formal notice requirements under Virginia law but the distressed homeowner must file a case themselves if they seek court intervention to stop or ensure fairness with the foreclosure.  The knowledge barrier to filing a new case often keeps unrepresented litigants out of the court system and allows for foreclosures to occur with less interference.

Proposed system: judicial foreclosure

Unnecessary limitations on Virginia’s General District Courts

Most residents of the Commonwealth of Virginia will have some experience with the General District Court system at some time while they reside here.  The GDC happens to be where almost all traffic and parking matters are adjudicated in a final manner.

For those practicing outside traffic and criminal law the GDC is where small civil cases are adjudicated.  For non landlord tenant matters the jurisdiction of the GDC is limit to claims of less than $15,000.00 pursuant to Va. Code § 16.1-77(1).  If your case exceeds the jurisdictional limit it must be filed in the Circuit Court where the procedures require payment of additional attorneys’ fees by an exponential factor, and almost a year of extra time to get to trial.

A GDC civil case can usually be concluded in 2-4 months, and even a heavily contested matter can usually be completed for $7,500 or less in attorneys’ fees.  There are certain limitations on the GDC case such as the automatic right of appeal, but even that imposes limitations on the losing party.

In short the GDC is faster and cheaper for civil litigants, and therefore a more efficient way to adjudicate claims.  The jurisdictional limit makes it difficult to adjudicate claims in the $15,000.00-$30,000.00 range in an efficient manner. 

Although I might personally advocate for a slightly higher jurisdictional limit two bills going before the General Assembly this session would raise the jurisdictional limit to $25,000.00.  The raise in the jurisdictional limit to $25,000.00 is being suggested by Sen. Don McEachin (D- Richmond) in bill SB774, and Del. Sal Iaquinto (R-Virginia Beach), in bill HB1590.