Last Friday, Judge John Gibney, a federal judge with the United States District Court for the Eastern District of Virginia, ruled against four of the Republican candidates for president who filed suit against the state of Virginia for not allowing them to appear on the March 6 primary ballot. In his ruling Judge Gibney stated:
The four candidates "knew the rules in Virginia many months ago. In essence, they played the game, lost, and then complained that the rules were unfair."Then on Sunday, Governor Rick Perry took his case to the appeals court, asking the court to either force the state to put his name on the ballot, or not mail absentee ballots until there is a final ruling on the constitutionality of Virginia's ballot requirements. Except the original suit didn't have anything to do with the constitutionality question.
In light of Judge Gibney's ruling and Rick Perry's insistence on tying up the court system with what amounts to a frivolous lawsuit that he cannot win, it becomes important to understand exactly why he and the other candidates did not qualify for inclusion on the Virginia primary ballot in the first place.
In short; they have only themselves and the Virginia GOP to thank for their disqualification, not so much the state Board of Elections.
The law requiring candidates for president in Virginia to produce 10,000 signatures (with at least 400 from each of the 11 congressional districts) has been on the books since the 1970s — that's well over 30 years. None of the previous republican candidates for president has ever seen fit to sue the state of Virginia due to their "onerous" rules in the past 9 presidential elections since the law has been in effect.
So what's changed?
Last October a man named Michael Osborne, an independent candidate to be a Virginia delegate, filed suit against Virginia's Fifth District GOP Chairman Brandon Boyles and Virginia Board of Elections Secretary Donald Palmer. The case is currently making its way through the courts as Osborne v. Boyles, and challenges the fact that rules for reviewing petitions for appearing on the Virginia ballot require candidates that are affiliated with a party, submit their petitions to the party chairman, who then reviews the signatures without any guidelines dictating the review process. And if the party chairman says there are 10,000 valid signatures, there is no recourse for state officials to challenge it.
And for 30 years, the Virginia GOP chairman simply gave the petitions a cursory once-over, ensuring there were at least 10,000 signatures, and certified them without any question.
Candidates not affiliated with a party, on the other hand, must have their petitions reviewed by the local voter registrars, who check each signature for validity to ensure each signer is a registered voter who lives in the district. This naturally poses a much larger hurdle for an independent candidate, given that there are always a percentage of signatures that are thrown out for a variety of reasons.
It's much easier to collect 10,000 random signatures than it is to collect 10,000 signatures that are each and every one ensured to be valid.
On May 25th, 2011, the Virginia State Board of Elections adopted the Deadlines, Duties and Ballot Access Requirements for the Presidential Primary Election [to be held] Tuesday, March 6, 2012. In it they state:
Because many people who are not registered to vote will sign a petition, it is recommended that 15,000 - 20,000 signatures be obtained with at least 700 signatures from each congressional district.Note that this is merely a recommendation, not a requirement. But every candidate certainly had ample notice of it nonetheless.
But since the Virginia GOP is embroiled in the above-referenced lawsuit challenging their validation procedures, they decided to err on the side of caution this time and adopt the Board of Elections' recommendation as a requirement for candidates who wished to be presumed in compliance and automatically qualified without further scrutiny. They allege that all candidates were advised of this "from the earliest days of the campaigns," and sent a formal letter to every candidate to this effect in October.
In October 2011, RPV formally adopted the certification procedures that were applied on December 23: any candidate who submitted over 15,000 facially-valid signatures would be presumed to be in compliance with Virginia’s 10,000 signature law. ...
RPV officials encouraged candidates repeatedly, through both counsel and field staff, to submit 15,000 or more signatures in an abundance of caution, so that they would meet the legal requirements.
Candidates were officially informed of the 15,000 rule in October 2011, well in advance of the Dec. 22 submission deadline. The rule was no surprise to any candidate – and indeed, no candidate or campaign offered any complaints until after the Dec. 23 validation process had concluded.
Mitt Romney submitted in excess of 15,000 signatures and none of his signatures were checked; he was presumed to have collected at least 10,000 valid signatures and automatically qualified for the ballot.
Ron Paul submitted just over 14,000 signatures. Therefore, having missed the arbitrary 15,000 minimum the party was requiring for presumption of qualification, every one of this signatures were examined line-by-line. When 10,000 valid signatures were found, he was certified for inclusion on the ballot.
Rick Perry and Newt Gingrich each submitted something in the neighborhood of 11,000 signatures. This also forced a line-by-line examination of their submissions — again, something that had never been done before in any prior primary election. Unfortunately for them, more than 1,000 signatures from each of them proved to be invalid and the party could not certify them.
Michele Bachmann, Rick Santorum and Jon Huntsman did not submit even the required 10,000 signatures in the first place so they were automatically disqualified.
Had this been any other year, Mitt Romney, Ron Paul, Rick Perry and Newt Gingrich would all have been deemed qualified for the Virginia ballot by the Virginia GOP chairman merely for submitting a total of at least 10,000 signatures, valid or not.
Bachmann, Santorum and Huntsman would not, and have only themselves to blame. Perry and Gingrich, on the other hand, have the Virginia Republican Party to blame (in addition to themselves, of course).
I must ask, do these candidates really think we want a president who cannot even be bothered to follow the rules that they are clearly aware of from the beginning of their candidacies? Why should the American public trust a president who thinks the rules don't (or shouldn't) apply to them? This would certainly set a very dangerous precedent in a presidency of any of these particular candidates.
Thankfully, the United States Court of Appeals for the 4th Circuit agreed, as they dismissed Governor Perry's appeal on Tuesday, finding in part:
Movant had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would not have created the disruption that this last-minute lawsuit has. Movant’s request contravenes repeated Supreme Court admonitions that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour. Movant knew long before now the requirements of Virginia’s election laws. There was no failure of notice. The requirements have been on the books for years."Indeed.
You can read the full ruling here (pdf).
REFERENCES AND ADDITIONAL RECOMMENDED READING
▶ UPDATE: Gingrich failure to get on primary ballot raises questions ~ By Andrew Cain at the Richmond Times-Dispatch
▶ Did the VA GOP change the rules on primary ballot access in November 2011? ~ By Moe Lane at RS Redstate
▶ Judge postpones hearing Osborne's election lawsuit ~ By Mac Mclean at TriCities.com
▶ RPV issues statement on “Petition Certification” ~ By Norman Leahy at Bearing Drift, Virginia's Conservative Voice
▶ Deadlines, Duties and Ballot Access Requirements ~ By the Virginia Board of Elections
▶ Candidates join Perry's Virginia lawsuit ~ By Kevin Liptak at CNN
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