Legal qualifications for candidacy in Virginia elections explained

I have seen repeated concerns in Virginia political blogs about the residency requirements for candidates for political office.  The practical effect of allegedly failing to meet residency requirements appears to be minimal.  This post is specifically designed to explain the law behind the residency requirements for candidates for Virginia public office, and the potential consequences of failing to meet those requirements.

How does one become qualified to hold a public office?

“In order to hold any [elected] office . . .the candidate must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office.”  Va. Code § 24.2-500.  Keep in mind this is simply to hold an office.  This is not the requirement to run for the office, or to be voted in to office.  This is the requirement to be sworn in.

How does a candidate become qualified to be a candidate for a particular public office?

“In order to qualify as a candidate for any office . . . a person must be qualified to vote for and hold that office.”  Va. Code § 24.2-500.  A similar provision applies to candidates in primaries under Va. Code § 24.2-519.  It is not actually possible to tell at the time that one qualifies as a candidate if that person will actually be a resident up until the actual election.  Presumably, the legislature means that to qualify you must be a resident for the year preceding the date one qualifies as a candidate.  The alternative is that this portion of the statute is potentially unenforceable as vague. 

How does one become “qualified to vote?”

Both the previous situations - holding an office, or qualifying as a candidate for an office -  require that the candidate or officer be qualified to vote for the office in question.  “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election…, (ii) a resident of … the precinct in which he offers to vote, and (iii) registered to vote.” Va. Code § 24.2-101.  Items i and iii are factual and self explanatory.  Item ii and the definition of “resident” is less clear.  "Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.”  Va. Code § 24.2-101.  The definition of abode is fairly self explanatory.  Domicile is a legal term of art that can generally be proven by showing that one intends to remain by changing mail delivery, drivers’ licenses, car registrations, and tax filing addresses to the new home.  It requires a very fact intensive analysis.

What does it take to get on the ballot?

Here is where the threat of criminal sanctions can arise in egregious situations.  A statement of qualification for candidacy must be filed by the candidate pursuant to Va. Code § 24.2-503.  In 2011 the dates for filing are different under HB 1507 due to redistricting.  There are different dates for filing the statement depending on if there is a primary, or if there is no primary.  The terms of the statement required are detailed in Va. Code § 24.2-501, which states in part “a person must file a written statement under oath, . . . that he is qualified to vote for and hold the office for which he is a candidate.” 

A statement made under oath, particularly to an agency of the Commonwealth of Virginia or its subparts is subject to potential criminal sanction under Va. Code § 18.2-434, which states in part “any person to whom an oath is lawfully administered on any occasion . . . willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony.”  Under Va. Code § 18.2-10, class five felonies are punishable with “a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”

So what are the remedies for a candidate or voter negatively affected by the candidacy of a person not capable of holding or being a candidate for a particular office?

A. Criminal Sanctions

The reader must understand that prosecution of criminal matters is at the discretion of the local Commonwealth’s Attorney.  Anyone with knowledge of a crime can swear out the warrant for someone’s arrest.  But, a magistrate does not have to issue the warrant, and the prosecutor can drop the case.  The only actual crime potentially arising out of a situation with a non-legally qualified candidate is perjury under Va. Code § 18.2-434 for the action of submitting the false statement of qualification under oath.  Not only do criminal matters need to be proven beyond a reasonable doubt, but perjury requires that the person making the sworn statement “know” that the statement they are making is not true.  This last element must be proven by a prosecutor, whereas any candidate can easily claim they made an innocent mistake.

Functionally prosecution is nearly impossible.  Any Commonwealth's Attorney that pursues this route will likely lose in a high profile, politically charged case.

B. Civil administrative remedies by the SBE or local registrar

These folks are performing administrative duties.  It is not their job to research the histories and backgrounds of potential candidates.  There is nothing improper about them accepting a statement of qualification of candidacy at face value.  In fact, if after receiving a statement of qualification containing all the required elements, and requisite petition signatures, a registrar refused to place a candidate on the ballot due to the registrar's own belief that the candidate is not legally qualified, then the registrar should expect to be subject to a writ of mandamus an unusual legal proceeding designed to force a public official to perform a ministerial act.

This is not the place to seek a remedy.

C. Civil enforcement between private parties

The proper and effective route to challenge a legally unqualified candidate is to bring a civil action against the candidate as early as legally possible.  This lawsuit must be brought on behalf of someone directly affected by the improper candidacy (opposing candidate, voter, local political committee), and must be brought against the legally unqualified candidate, and the local registrar and SBE depending on the type of office.  The party bringing the lawsuit should immediately seek a preliminary injunction against placement of the legally unqualified candidate on the ballot.  The preliminary injunction against placement on the ballot, although difficult to obtain, will likely be the only potential remedy.  The court has the power to reject an injunction after an election on the grounds that it is not in the public interest to upset the results of an election. 

If the goal is simply to make a statement about how a candidate was never legally qualified, a lawsuit after the election is possible.

These remedies require payment of substantial attorneys' fees and the posting of a bond if successful at the preliminary injunction stage.  Between the difficulties in obtaining an injunction, and the costs involved no one seems willing to pursue this route.

Conclusion

There is only one legal remedy (civil enforcement) for someone affected by a candidate they feel is not legally qualified.  Otherwise affected parties can attempt to persuade voters of the illegal nature of a persons candidacy in the court of public opinion.  The problem with this latter route is that voters never seem to notice - or if they do notice they do not care.

Previous shorter versions of parts of this explanation can be found in my comments at:
http://virginiavirtucon.wordpress.com/2011/05/04/where-does-ron-speakman-live/
http://www.tooconservative.com/?p=9395

(active) Virginia redistricting lawsuit number three makes its way into Federal Court

As discussed on April 20, 2011 there are two active (i.e., not dismissed) redistricting lawsuits filed in Federal Court.  

On April 19, 2011 I discussed the mechanics of a redistricting lawsuit if the legislature fails to successfully pass redistricting plan for the Virginia House, Virginia Senate, or the House of Representatives.  As part of that discussion I indicated how unlikely it is that any such lawsuit will successfully be litigated in the Courts of the Commonwealth.  Essentially, if a case involves interpretation or enforcement of Federal law, which includes the Federal Constitution, the Commonwealth of Virginia has the power to remove the case from state court into Federal Court.

On Friday April 22, the Commonwealth of Virginia removed such a case from the Circuit Court for Hanover County to the U.S. District Court for the Eastern District of Virginia.  So now we have three . . .

Lawsuit number 3 - How did we get here?

It appears that on March 25, 2011 three Plaintiffs filed a lawsuit in Hanover County Circuit Court alleging the 2001 apportionment plans for the House, Senate, and U.S. Congress violate the Plaintiff’s Virginia Constitutional, and, in some instances, Federal Constitutional rights.  The case does not appear to have been served until last week.  Apparently, as the case was being served the Plaintiff’s returned to Court and were granted relief to file an Amended Complaint.  The Commonwealth of Virginia, as this case involves interpretation and enforcement of the Federal Constitution, removed the case to Federal Court.

The portions of the Complaints addressing legislative apportionment at the state level do not mention the Federal Constitution within the “Count.”  This may have been an attempt to suggest the Federal Courts do not have jurisdiction over the case, thereby preventing removal.  Nonetheless, the Federal Constitution is invoked throughout the remainder of the Complaint, and the likelihood of having the case sent back to Hanover Circuit Court is quite low.

The Plaintiffs are Raymond J. Klotz, Jr., Edward Fleischer, and Gerald Burch, Jr.  Raymond J. Klotz, Jr. appears to be a minor ($2700 plus $1000 donated to a PAC with no partisan denomination) Republican donor.  Edward Fleischer appears to be a minor ($215) Republican donor.  Gerald Burch, Jr. appears to be a minor republican donor and former primary candidate for a House race in 2009.  If I understand correctly Gerald Burch and Jana Burch (a Plaintiff in the other redistricting lawsuit in the Eastern District of Virginia) appear to be married.  I guess they could not agree on which lawyer to hire . . .  Counsel, R. Craig Evans appears to be a minor Democratic donor. 

Procedural issues

This lawsuit has some procedural problems, all of which seem to have been worked out without harm to the Plaintiffs. 

For example:

A. As the case was filed before commencement of the special session it should have been dismissed if filed in Federal Court just like Carter v. SBE I.

B. Filing this case in state court meant it will be delayed, and likely removed to Federal Court anyway.  Essentially it is a waste of time in most instances.

C. The Plaintiffs did not serve the lawsuit for nearly a month, and then served the original Complaint and the Amended Complaint almost simultaneously.  If the lawsuit was meant to be vigorously pursued, service should have been sought earlier.

D. The Plaintiffs moved to include AG Cuccinelli and the “Commonwealth of Virginia” as parties.  These appear to be the only changes in the Amended Complaint.  Neither entity is a necessary party, and certainly the inclusion of these entities did not require an additional Motion and Court appearance, and duplicative service of the Amended Complaint within day of service of the first Complaint.

BUT, as I indicated, none of this appears to have any long term negative consequences.  In fact, had the case been served and removed to Federal Court in early April, the case might have been dismissed just like Carter v. SBE I.

What does the inclusion of this case mean?

It means we have a few more Plaintiffs and attorneys involved in redistricting litigation in the Eastern District of Virginia.  Welcome to the party.

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 redistricting lawsuits in full swing

Gov. McDonnell vetoed the redistricting bill, and plaintiffs marched into Federal Court on Monday and Tuesday.  In my opinion these lawsuits are still premature as the Gen. Assembly needs to have another chance to send a bill to the Governor before we accept that this exercise is futile.  Nonetheless, by filing now these litigants ensure themselves a position driving redistricting litigation if now plan is ultimately passed.

Lawsuit number 1 - they’re back!

Out in the Western District of Virginia the same folks who filed and had their case dismissed in February filed a nearly identical Complaint on Monday.  Here is the Complaint.

The Plaintiffs are Henry Lee Carter and Gregory M. Yates.  According to VPAP, Gregory Yates is a high dollar (almost $60K) Democratic donor (with some Republican donations thrown in).  According to VPAP, Henry Lee Carter is a high dollar (a little over $16K) Democratic donor.  Counsel in the case is Gerald Hebert an expert in election law who has a personal history of Democratic donations.

The Complaint sues the SBE directly, and sues the AG and the Lieutenant Governor.  It is my opinion that none of those people or entities need to be included.  Otherwise, it appears these folks know what they are doing.  In my opinion the proper parties are the members of the SBE and perhaps the Governor.

Lawsuit number 2 - new to the party

In the Eastern District of Virginia some, on Tuesday, new litigants have filed a Complaint to invalidate the 2001 redistricting plan as well.  The Complaint is here.  The Motion to convene a three judge panel is here.  

The Plaintiffs are Jana Burch, Gary Bullis, and Jerome Burke.  Jana Burch does not appear to have a VPAP donor history.  Gary Bullis appears to be a minor ($630) Republican donor.  If this is the same Jerome Burke, he is a minor ($800) conservative Republican donor.  Counsel, Charles E. Adams appears to be a minor Republican donor. 

The complaint sues the “Virginia Board of Elections” and the members of the SBE in the official capacity.  It is the “State Board of Elections,” but the difference in name is irrelevant.  The Complaint is verbose, but otherwise it appears these folks also know what they are doing.

What does this mean?

It means that if the General Assembly and Governor still cannot pass a plan, then a handful of Democrats and Republicans, and the AG’s office, will be arguing with a handful of judges to decide the lines to be drawn for November 2011.  There is plenty of time for more people to file lawsuits, so we will see who dominates the debate in the Courts in another few weeks.

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.

Is Virginia headed toward a Constitutional crisis over redistricting?

In my opinion, no.  

On Friday April 15, in the middle of the afternoon Virginia Governor McDonnell vetoed the redistricting bill.   There is no current redistricting plan and Majority Leader Dick Saslaw in the Senate has stated he intends  to resubmit the same plan the Governor found offensive.  If Governor McDonnell vetoes it again, Senator Saslaw stated he will not submit another redistricting bill to the Governor.

What follows is what really happens.

Things stay the same?

As bizarre as it might sound, things could stay the same.  The first thing we should all consider is that there are two apportionment bills in existence, one for the Senate, and one for the House.  These bills are presumed Constitutional and enforceable until someone challenges them in Court.  If no one files a lawsuit then the old reapportionment plans could stay in place until 2021. 

Of course the chances of no one filing a lawsuit are quite low as at least some folks already tried to obtain redistricting through the Courts before the special session even convened.  So, what is this lawsuit about?

The basics of the lawsuit

The grounds for the lawsuit could be a state challenge to compactness and contiguousness of the 2001 apportionment bills, or a challenge under the Federal Voting Rights Act, but most likely the lawsuit will simply be a challenge under the Federal Constitutional requirement of one-person one vote.  Presumably compactness could have been sufficiently challenged in 2001.  The Voting Rights Act can give rise to a new challenge under an old plan that without changes now disenfranchises minorities.  But, to have a successful challenge on the basis of mere vote dilution at the state level, one must prove that a district deviates from the ideal district in population by 10% or more.   We have that in Virginia in both the House and the Senate under the 2001 plans.

Because the lawsuit is based on a Federal Constitutional violation it will likely be filed in Federal Court.  And if the case were filed in state court, the Commonwealth could simply remove the case to Federal Court.  A three judge panel will likely be assigned upon motion of one of the parties under 28 U.S.C. § 2284.  The three judge panel must hear all requests for a preliminary injunction or final relief. 

There will likely be multiple cases.  All cases filed in the Federal Court for the Eastern District of Virginia will likely be consolidated with all other cases from the same District, and the same thing will likely occur for the Western District of Virginia.  We could potentially have competing three judge panels in the Western and Eastern Districts, although they are likely to do something reasonable to transfer jurisdiction from one Court to the other to avoid competing injunctions.

The lawsuits will ask for a few major items:

1.  Declaratory judgment that the 2001 apportionment statutes are unconstitutional.

2. A prohibitory injunction against the use of the 2001 apportionment statutes.

3. A mandatory injunction requiring use of an alternative apportionment plan, or a method of determining an alternative apportionment plan.

The parties seek injunctive relief

The Plaintiffs will likely seek a preliminary injunction followed by a permanent injunction.  Prohibitory and mandatory injunctions will be sought in both the preliminary and permanent injunction stages.

Short form definitions for injunctions:

Prohibitory injunction - a court order preventing somebody from doing something.  In this instance, a court order prohibiting the Commonwealth from holding elections under an unconstitutional apportionment plan.

Mandatory injunction - a court order requiring someone to do something.  In this instance, a court order requiring the Commonwealth to conduct elections according to a particular plan, or engaging in a course of action to determine a particular plan.

Preliminary injunction - an injunction entered prior to the final hearing in the case.  This is normally very hard to obtain.  Occasionally, as in this instance, the unconstitutionality of the 2001 apportionment statutes is unquestionable and a preliminary injunction is far easier to obtain.

Permanent injunction - an injunction granted pursuant to a final hearing.  This injunction can still be appealed, but it is likely no longer subject to revision by the three judge court. 

Preliminary injunction hearing

At this hearing the rest of the case will likely be decided.  It is nearly impossible to obtain a final hearing in sufficient time before November 2011 to obtain a permanent injunction granting judicial redistricting.  The preliminary injunction hearing is where redistricting in 2011 and likely 2012 will be decided.

The goal at the preliminary injunction hearing is to have the 2001 statutes declared unconstitutional in the short term, and have a different redistricting plan put in place for November 2011 elections.

For more on injunctions, please see my post on injunctions in the Virginia courts here.

Types of relief possible

At both the preliminary and final injunction stages the three Judge Court has broad discretion to fashion an appropriate remedy.  The Court could choose one of the existing redistricting plans, proposed as legislation, passed and vetoed, suggested by the nonpartisan redistricting commission, or even submitted from the public at large.  The Court could assign a special master to determine which plan to follow.  The Court could appoint its own panel of experts to suggest plans.  The Court’s primary goal is to meet legislative intent (and yes the Governor’s veto that is not overridden *should* negate legislative intent for the vetoed plan).  To this end the Court will likely want to send a directive back to the legislature to try again.

The major question at the preliminary stage is will the Court cancel 2011 elections, the answer is maybe.  The legislature could be kept in place only to pass a new apportionment scheme and electoral schedule.  Unlike in 1981, 1991 , and 2001 when redistricting challenges were brought, in 2011 there will be no new plan for the Commonwealth to begin execution.  The major case in 1981, Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) required enforcement of an unconstitutional plan for the Senate because the Constitutional House Plan would be disrupted if Senate elections were canceled and the Commonwealth was already preparing for an election based on the unconstitutional Senate plan.  In this instance there is no simultaneously Constitutional plan for the House, and the Commonwealth can not reasonably prepare for an election under the old 

districts.  This makes outright cancellation in 2011 a possibility.

At the preliminary stage the Plaintiffs should focus on showing the existence of a reasonable and benign alternative plan for 2011, and hold out the possibility that the Court could still require the legislature to pass a new plan in early 2012 and hold new elections in the Presidential year.  A three judge panel will make this decision.  As no one judge will control the process they will likely tend to moderate one another’s decision making.  The safest interim redistricting plan with support from a smart and forceful advocate will have the greatest chance of success.  Plaintiffs should file their case with their expert witnesses in hand, a list of viable redistricting plans, and good reasons why all the alternatives are not objectively reasonable.

Who should participate? 

Everyone who cares (and has money) should participate.  There is one guaranteed party with a seat at the table: the Commonwealth of Virginia as represented by the Attorney General.  If you want to speak up in Court you need to file a case, it will likely be consolidated with the others but at least you get to have a say in the matter.

If you want to see how this is done in 2011 please see my prior post about Virginia’s first 2011 redistricting lawsuit.  Do some digging, you might be interested to find a common name in that case, and in some 2011 redistricting legislative action.  

Other blogs

Lloydtheidiot over at tooconservative put up a post on Cosner v. Dalton on Tuesday.  I address why Cosner is inapplicable above.  Contrary to his name, I do not think Lloyd is an idiot and he raises some good points.

GoldmanUSA at BlueVirginia put up a post asking a clear question: will the bill that was vetoed be given as much weight as a duly passed law?  Well, to the simple question, no the bill will be given practically no weight.  If instead the bill that was vetoed is merely competing with other suggested redistricting plans, see my comment above: “the Governor’s veto that is not overridden *should* negate legislative intent for the vetoed plan.”    

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 citizens’ voting records about to become more public

Privacy advocates should lament our loss of privacy in voting history, while constitutionalists should celebrate the vindication of the first and fourteenth amendments.  A recent case concluded in the Circuit Court for the City of Richmond, Know Campaign v. Rodrigues, is a cause for celebration of the constitution and lamentation of our privacy rights.  

2009: Enter the Know Campaign

In 2009 a formerly unknown organization, called the Know Campaign, prepared to mail out personal voting history of friends and neighbors in an effort to encourage people to vote.   Coverage here.

A major problem with their plan is that the information they sought to disclose could not have been obtained directly from the State Board of Elections as the Know Campaign was not allowed direct access to this information.  The Know Campaign appears to have taken the safer route in 2009 and decided not to engage in direct mail campaigning. 

Virginia Distributes Your Voting History (in part) to Recipients Outside the Government

So where does this information come from?  Voting history, (whether you voted, but not who you voted for) is collected and maintained in databases held by the state board of elections.  This information is then made available (for four years) to a select group of individuals and organizations so they can affect the political process.  This select group able to obtain theses records under Va. Code § 24.2-406 is limited to “candidates, elected officials, or political party chairmen and to no one else.”

The information included in these lists consists of your name, the general elections and publicly run party primaries you participated in, and your address.  This information is used by those three special categories of candidates, elected officials, and party chairman to identify likely voters, and make rough identifications of party affiliation based on primary vote participation.

2010: The General Assembly Acts (or rather fails to act), and the Know Campaign Identifies a Legal Strategy

According to the Virginia Pilot, the General Assembly tried to change Va. Code § 24.2-406 during the 2010 session and failed to do so.  In the interim , the Know Campaign appears to have filed and nonsuited case No. CL09005389 in the Circuit Court for the City of Richmond (an explanation of what a nonsuit is and how it works (or does not work) requires far more than a two sentence explanation and will be reserved for another time). 

The Know Campaign Executes its Legal Strategy

Standard for Virginia preliminary injunctions about to become more confusing

The version of SB851 offered by Se. Chap Petersen (D - Fairfax) that passed the Virginia Senate has high probability of passing the House.  In its current format it will cause more confusion in preliminary injunction matters than the current standard.

In my post dated January 9, 2011 I critiqued the bill as originally proposed, discussed the standard for temporary injunctions without this statute, and identified a potential weakness.  

The Senate amended the bill.  Unfortunately the amendment increases the problems with the bill, while the original problems remain unresolved.  If passed in its current format, it will disrupt and prevent orderly adjudications of preliminary relief in civil cases.

The amended version of the bill gives the expected four factor test, and states that the court should “review” the four factors.  It does not say that relief should only be based on the four factors, or that the four factors should be balanced to determine the equities and grant or deny relief.  Arguably, as written, a Court need only “review” the factors, and then could grant relief based on the judge’s own interpretation of common law rights to and standards for preliminary relief.

Absent from any amendments are clear instructions of how and when to apply preliminary relief.  To make SB851 workable in a courtroom the following additional items need to be added:

Chap Petersen’s plan to fix the standard for temporary injunctions

Most people understand that the court system can be used to sue people for money.  Often people will show up on my doorstep asking me to ask a court to award something other than money such as declaring someone’s rights or obligations, or forcing somebody to do something or stop doing something. 

These other non-monetary remedies are generally called equitable remedies under Virginia law.  Of these equitable remedies if you want somebody to be forced to do something or stop doing something you need an injunction.  But lawsuits can take about a year in most northern Virginia Circuit Courts, and sometimes longer.  If you need the injunction now, the court can enter a preliminary injunction.  Preliminary injunctions are difficult to obtain, but for the unfamiliar attorney extremely difficult to understand procedurally.

In bill SB851, Sen. Chap Petersen (D-Fairfax) seeks to solve the most pressing question regarding preliminary or temporary injunctions.  Under Virginia law there is no controlling authority on how to define if a party seeking a temporary injunction is entitled to such injunction based on the “equities” under Va. Code § 8.01-628.  There is a standard that has been employed, a four factor test, by approximately 15 Virginia Circuit Court Judges which all rely (ultimately) on Federal District Court decisions for their origination.   This four factor test is respected outside Virginia and is taught to attorneys as black letter law for the bar exam.  Nonetheless, the Virginia Supreme Court has yet to weigh in on this four factor test and clarify “equities” for litigants.  SB851 takes the four part test and places it squarely in the code, so litigants seeking a temporary injunction no longer need to cite to 4 to 8 decisions for a Circuit Court to accept the four part test is the accepted standard.  

Here is where it gets interesting: