Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

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.

Power over Virginia property rights can be returned to the citizens in 2012

Virginia has a rare and important statewide matter on the ballot for November.  In addition to the Presidential election, Virginia has a statewide ballot measure where voters will get to decide if private property continues to have meaning or if politically connected developers can seize your property when it is deemed to benefit the public coffers.

An opportunity to permanently curtail the power of both the state and local government in Virginia is upon us.

History

In 2005 the Supreme Court eviscerated the right to keep one's own property when faced with private developers seeking a larger commercial development in the decision of Kelo v. City of New London, 545 U.S. 469 (2005).  Lower middle class residents sought to prevent the City of New London Connecticut from taking their property via eminent domain as the owners argued the property was not being taken for "public use" as required by the 5th Amendment.

Our antagonist in this story, Pfizer, Inc. wanted to build a large scale commercial development, and seizing the property of private homeowners was necessary to achieve Pfizer's goal.  The City of New London used the power of eminent domain, claiming that the improvement to the property would be a "public use."  This public use was couched in terms of increased tax revenue and a wealthier citizenry.

The Supreme Court essentially stated there are no bounds to "public use" as anything that financially benefits a government could now be considered public use.

The uproar among private citizens believing in keeping their small portion of the American dream was heard throughout state legislatures nationwide as laws were passed to placate their worries.  Virginia moved quickly and successfully to pass laws restricting eminent domain to actual public uses at the local level. 

The Dillon Rule

Virginia is a Dillon rule state.  In short the Dillon rule indicates that a local government only has those powers granted to it by the statewide government.  If the Virginia General Assembly decides to grant or revoke a power to a locality, the locality must abide by that grant or revocation.

As localities are governed by the Dillon rule, the General Assembly curtailed the power of localities to use eminent domain to take private property for purposes of bolstering a tax base.

Private property was safe, or so it seemed.

What is actually on the ballot in November 2012?

Oddly, finding anything other than innuendo about the property rights amendment in November is exceedingly difficult.  The public should understand both the provision on the ballot, and the actual language in the amendment.

The language you will see on the ballot is as follows:

"Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?"

This description is generally accurate, but omits the primary criticism of opponents of the amendment.

The actual text of the Amendment to the Virginia Constitution is as follows:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

We will come back to the text in a moment.

The controversy over the Property Rights Amendment

Those in favor:  Those in favor of the Amendment appear to be general private property advocates and broadly speaking, farming interests.  They express that we need to enshrine the definition of public use in the Virginia Constitution.  Further, proponents appear to desire that compensation for any taking of private property take into consideration lost profits and lost access.  These are generally not included in the calculation of compensation.  It should be noted that the terms "lost profits" and "lost access" are to be defined by the General Assembly."

Those opposed: Those opposed were local governments through their voluntary collective associations.

Now it seems that the Virginia Association of Counties no longer opposes the Amendment.

The Virginia Municipal League appears to still oppose the Amendment largely due to the "lost profits" issue. 

Apparently the Virginia Democrat powers that be ["VADemSCC"] also oppose the property rights amendment due to the cost and complexity of compliance for local governments.  Additionally, the VADemSCC also feels the Amendment is merely duplicative. 

Why the Amendment is extremely beneficial

Private property rights are not safe, but can be much safer.

1. The Dillon rule allows for grants and revocations of powers.  Although today public use is limited for local governments, a future general assembly might slowly water down the definition of public use.  The doctrine of entrenchment prevents a current legislature form binding future legislatures.  The only solution to prevent the watering down of fundamental rights is this Constitutional Amendment.

2. The General Assembly has been laboring under NO RESTRICTIONS.  Although the General Assembly can pass a law restricting the Governor's office from exercising eminent domain at the state level, that law can be undone completely, or exceptions made on a whim by a subsequent General Assembly.  Once enshrined in the Virginia Constitution, these restrictions can not be undone on a whim or one simple exception.

3. This Amendment contains the holy grail of eminent domain opponents.  Although not discussed in any detail, compensation must be made for "damaged" property, and not just property taken in total.  This allows a landowner to be compensated for something referred to as a "regulatory taking."  This is an instance in which a regulation reduces the value of property.  This is an incredible curb to government power, and significantly bolsters the rights of private landowners of all kinds.

Those opposed neither want to acknowledge nor contest the above three benefits, as the public at large tends to support private property rights in concept. 

Virginia residents, please be sure to register and vote to protect your rights in November.

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.

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

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

Opportunity for corporations to donate directly to federal candidates possible: Eighth Circuit grants en banc review for Swanson case

Excitement in the world of campaign finance litigation yesterday!* 

On July 12, 2011 the U.S. Court of Appeals for the Eight Circuit granted en banc review in the case of Minnesota Citizens Concerned for Life, Inc. v. Swanson, Record No. 10-3126.  This means that all of the Judges of the Eight Circuit will rule upon the issue of whether the Constitution allows the government to prevent corporations form making direct contributions to candidates.  

What is this about?

In May and June 2011 I covered the details of an Eastern District of Virginia case referred to generally as Danielczyk.  Coverage here.  In short the major issue of concern is whether a federal ban on contributions from corporations directly to federal candidates is Constitutional.  Judge Cacheris in the Eastern District of Virginia said the ban is unconstitutional.  The federal government has now appealed the Danielczyk decision.  Three federal appellate courts said a ban is Constitutional . . . until July 12.  On July 12, 2011 the Eight Circuit Court of appeals vacated their holding of Constitutionality, and now all the judges on the Circuit will have an opportunity to weigh in.

How does En banc review work?

When a case goes to a U.S. Court of Appeals it generally will go before a randomly selected panel of three appellate judges for that particular circuit.  Those three judges render an opinion, that then becomes the opinion of the entire circuit.  Litigants dissatisfied with a ruling by a panel may petition for rehearing (asking the same three judges to change their minds) or petition for a rehearing en banc.  A rehearing en banc is when all of the judges sit, hear argument, and rule upon a case.  Successful petitions for rehearing and petitions for rehearing en banc are very uncommon, and publicly available statistics for these procedures are unavailable (outside of the Federal Circuit).  Under Fed. R. App. P. 35(b) a rehearing en banc should only be granted in instances where the panel decision conflicts with a decision of the Supreme Court, or another decision from the same circuit, or if the case involves an issue of exceptional importance that can be concisely stated.  The petition is limited to 15 pages, and will often be narrowly focused on the major issue(s) in order to make an important point in a small amount of space.

Once en banc review is granted, the court may, in its discretion, order additional briefing.  This does not appear to have been done in this case.

What does this grant of en banc review mean?

1) It likely means a number of judges at the Eighth Circuit have serious misgivings about the Constitutionality of a ban on direct contributions from corporations to candidates.

2) More importantly, the judges of the Eighth Circuit likely believe this is an issue that will not be settled once and for all in the Courts of Appeals.  This issue is likely headed back to the Supreme Court where the scope of the January 2010 Citizens United Ruling will have to be clarified.

I just hope our Fourth Circuit Judges get a chance to opine before the Supreme Court sets the matter straight.

*I know campaign finance law and appellate procedure are not fun for everyone, but that is okay.  I think there is room enough in the world for all of us.

Major Fourth Circuit case barely critiques Virginia candidacy petition requirements

In the matter of Lux v. Judd, the Fourth Circuit today ruled that a portion of Va. Code § 24.2-506 may be unconstitutional.  I wish I had a clearer ruling then that, but that is all we have . . .

Why couldn't Herb Lux be on the ballot?

Herb Lux, a candidate for Virginia's Seventh Congressional District, was kept off the ballot in 2010 despite submitting the proper declaration of candidacy form, and total number of signatures of voters within the district.  It turns out that the petitions containing signatures of voters within the district must be witnessed by a resident of the district pursuant to Va. Code § 24.2-506.  Herb Lux, witnessed all but 15% of the necessary signatures for him to be on the ballot.  But Herb Lux was not a resident of the Seventh Congressional District.  He was kept off the ballot in 2010, his federal case was dismissed, and today's ruling is the result of his appeal.

The argument below: relying on old precedent

Relying on old, but binding precedent, the District Court Judge determined that the residency requirement for witnessing signatures was Constitutional as it shows the government interest of requiring "some indication of geographic as well as numerical support."  p. 11 (citing Libertarian Party of Va. v. Davis, 766 F.2d 865, 869-870 (4th Cir. 1985)).  Since that time, two Supreme Court decisions, both analyzing Colorado law, determined that a residency requirement for witnessing signatures is not necessary to show geographic or numerical support when there is a requirement for a critical mass of signatures on the petitions themselves.

Today's ruling resolves few rights

The end result was that this case was reversed and remanded.  The District Court Judge is to apply the proper standard of review, and take new evidence on the importance of the state interest in passing Va. Code § 24.2-506.  The Commonwealth of Virginia may now present new arguments to support the Constitutionality of the statute just as long as the argument is not "proof of geographic or numerical support."

What does this mean for Herb Lux?

He did not get to run in 2010.  He has been mired in litigation since July 13, 2010.  He may still lose this case.  It is not clear where Congressional lines for 2012 will be, so who knows if he can witness his own collected signatures.

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A special thanks to Bopp, Coleson & Bostrom, of Terre Haute, Indiana for bringing exciting election law cases to the Commonwealth of Virginia, and for keeping the two party system on its toes.  We hope to see them back in the Fourth Circuit soon perhaps filing an amicus brief in the Danielczyk case.

The educated politico’s guide to U.S. v. Danielczyk: Or rather how to pay attention to a Constitutional campaign finance lawsuit

It has come to my attention that in my haste to write interesting articles about Federal Constitutional law, federal procedure, and the jurisdictional effect of federal rulings, that my commentary has become overly legalistic and therefore less accessible to my primary audience (other than lawyers): politicos, educated professionals, academics, and non-lawyer legal professionals. To that end, I need to provide an accessible explanation of the importance of U.S. v. Danielczyk (a case I have been covering for weeks).  The following is that explanation simplified by the extraction of excessive legal terminology, and otherwise provided without citation. Due to the lack of citation, I will more readily comment about the political ramifications of the case.

It all starts with Citizens United

For decades in the area of federal campaign finance law Americans have labored under a system that was previously nonexistent until the latter half of the 20th century. Soon, political power brokers and upstarts discovered that advantage can be gained from enacting federal campaign finance restrictions, and challenging such restrictions in court alleging violations of the Constitution.  Ultimately laws were passed banning outright federal campaign spending by corporations.  Although attempts were made to erode this ban, it was maintained for decades until 2010.

In January of 2010, the Supreme Court issued its ruling in the case of Citizens United.  The Citizens United ruling allowed for unlimited soft money contributions expenditures from corporations, just as individuals were allowed to make. Essentially, the Supreme Court stated that for purposes of political speech a Corporation is afforded the same rights as an individual person under the First Amendment of the Constitution.

Soft money simply means money spent during the campaign that is not coordinated directly with a particular candidate. This is often referred to as issue advocacy. Hard money donations would be money given directly to a candidate for federal office or spent at the direction of a federal candidate's campaign. The theory behind the ethics of allowing unlimited soft money donations is that a soft money donation will inure to the benefit of the donor, but may not be 100% consistent with the narrative the federal candidate, supposedly benefited by the soft-money, is attempting to portray.

What has been happening since Citizens United?

Aside from the expected hemming and hawing in the news media, on the left, and very quietly by the corporate elite, the battle over federal campaign finance restrictions continues to rage in Federal Courts. Since the issuance of the opinion in Citizens United three federal appellate courts (these are the courts just beneath the Supreme Court) have ruled explicitly or implicitly that corporations are still banned from making monetary contributions to federal candidates.  It is important to note that federal appellate courts may not rule on an issue unless it is brought before the court in a case with active participants. It is surprising that in a mere year and a half three federal appellate courts have already ruled on this issue. Nonetheless, in late May 2011 a federal judge in Virginia determined that the ban on direct corporate contributions to federal candidates was unconstitutional, relying on the Citizens United decision.  There was nothing in particular about this case that would lead one to believe that a decision would result in a major controversy over Constitutional law.  This is the decision in Danielczyk issued by Judge Cacheris sitting in the U.S. District Court for the Eastern District of Virginia.

What is the Danielczyk case about?

Boiled down to a simple level some individuals have been accused of criminally violating federal campaign finance laws in arranging for the payment of money to federal candidates without the persons paying the money legally having been allowed to do so, and without disclosing who the people were who actually paid money. No trial has occurred and the defendants remain innocent until proven guilty.

The reaction to Danielczyk

There are essentially two major reactions to this decision: 1. Vocal opposition from the media and left of center/good government advocates; and 2. Silence from right of center advocates and corporate decision-makers.

1. Vocal opposition from the media, although widespread, has been focused heavily on the political consequences of the ruling rather than the legal underpinnings or consequences of the ruling. This has resulted in certain mistakes regarding the description of the ruling and its effects. Vocal opposition from outside the media has run the gamut from knee-jerk reactions from those who see little more than political consequences, to well thought out, reasoned, and potentially persuasive reactions from legal scholars.

2. Silence from right of center advocates is likely predicated on the fact that many establishment politicos do not actually want the hassle and negative publicity of soliciting contributions directly from corporations. Corporate decision makers have actually been quietly advocating to maintain the ban on corporate donations for years. Large corporations do not want the dual problem of appearing to directly buy off members of Congress thereby alienating potential customers, but more importantly their shareholders.  Large corporations also do not want members of Congress functionally extorting the corporations for campaign dollars. If the CEO of a Corporation gives money to a campaign most people may not notice, but if the corporation itself started giving money to only one political party supporters of the opposite political party may decide to boycott for political reasons.

Is there anyone out there advocating for the expansion of freedom of monetary political speech?

Yes.  A handful of generally right of center groups advocate for the position that spending political dollars is an exercise of the first amendment. There is also a major attorney, not directly affiliated with a major political party, in this particular field who appears repeatedly in these campaign finance cases.

So what were my posts all about?

I have written six posts about the Danielczyk decision.  These posts were primarily intended for readers either with a strong background in Federal Constitutional law, federal campaign finance law or federal procedure. In particular I found that the coverage in the mainstream media was missing important points about the legal aspects of the case through mistake or neglect.  Following each link is a brief description of each post:

Virginia Federal Court paves the way for direct corporate contributions to federal with candidates, and it does not matter

A federal judge ruled that the ban on direct contributions from corporations to federal candidates is unconstitutional. Most of the criminal case remains intact. The court spent very little time addressing this one particular controversial issue. All of this does not really matter because corporations and politicians do not want to engage in direct corporate donations because of the appearance of corruption.

Why the real fallout of Judge Cacheris’ expansion of the Citizen’s United case will be minimal

The ruling by one judge in this particular court actually has extraordinarily little binding affect. Any Corporation who donates directly to a federal candidate, or any federal candidate who solicits donations from corporations because of the Danielczyk decision is begging to be thrown in jail.  This post is likely the most complicated, but it is also the most important post to understand. I have yet to see the mainstream media indicate they have understood what I conveyed in this post.

Judge Cacheris reconsidering critique of Citizens United?

The judge who issued the Danielczyk decision is so concerned this decision is not thorough enough he decides he wants the parties to submit additional briefs and appear for argument all on a short time frame. It appears the main reason the judge did not consider a major case is because the federal prosecutors did not mention it in their original brief.  Following the line of logic of a major first amendment case, and a related procedural case, it appears more likely than not that Judge Cacheris should declare the federal statute Constitutional.  There are ways to write an opinion that still declares the statute unconstitutional, but the opinion must be detailed and well cited to withstand scrutiny. Motions for reconsideration are rare and even rarer is the occasion when a judge decides to reconsider his own ruling without any party asking him to do so. 

Ban on corporate donations to candidates declared unconstitutional (again)

After reconsidering his previous decision the judge rules the same way. This time he provides a lengthy and detailed analysis.

Ban on direct corporate contributions to candidates upheld in Ninth Circuit

This was largely an acknowledgment of the third appellate case ruling contrary to the decision in Danielczyk.

More procedural hurdles for the appeal of Judge Cacheris’ Citizens United ruling

This post merely identified a major procedural problem facing the US government after they decided to appeal the Danielczyk case.  Essentially the government needed to stop the trial from occurring on the remaining criminal charges, or the appeal would not matter. Before anyone had a chance to concern themselves too much with this problem, Judge Cacheris delayed the trial on the remaining charges so the appeal could go forward.

Where to go for more information:

The best source for additional legal information is at the Election Law Blog, a link to the matters involving Danielczyk can be found here.