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.
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.
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:
