[Update Friday night]

The District Court has now turned down plaintiffs’ application for relief, saying that Perry and the rest knew the rules going in. The judge’s line of thought is that they played the game and lost, so now they want to change the rules. The judge also ruled that the doctrine of laches–unreasonable delay in filing the lawsuit–prevents the plaintiffs’ getting the decision.

The decision is understandable, even to a non-lawyer, but the situation is still puzzling. Generally a person has to be injured by something before filing a complaint. One has to be injured to have a cause of action. So it is hard to understand how Perry and the rest could have filed a lawsuit over the Virginia Board of Election rules before failing to get on the ballot. Wouldn’t the other side just have said, You still have time?

Perry filed immediately after failing to get certified. That left–as both sides agree–little time to move, before the period of mailing absentee and overseas ballots. That problem itself stems partly from the fact that Virginia’s primary date is March 6, a date chosen by the same people who set the rules for signature gathering. According to the GOP of Virginia, the new rules were adopted in October 2011.

Virginia’s primary was previously earlier. In 2008, it took place Feb. 12. John McCain won with 50.04 percent of the vote and got all 63 delegates. It was held on Feb. 29 in 2000, when GWBush beat McCain 53-44. There was no GOP primary in 2004.

Ironically the name of the game in Virginia seems to be to lock up the primary, adopted in place of a state convention under the rationale of giving more voters more of a voice.

Any next step in court may have to be the constitutional route. There again, though, time constraints make raising constitutional questions a challenge to say the least.

Rick Perry, ACLU make good points in Virginia

The Virginia ACLU is doing a good job on Governor Rick Perry’s lawsuit in Virginia. If only the ACLU in Illinois could show as much pep.

At issue, as previously written, are Virginia’s rules for gathering signatures as a presidential candidate:

• Any presidential candidate, even a major-party candidate, who wants to appear on the ballot in the March 6 primary must gather 10,000 signatures of registered voters
• At least 400 signatures must come from each of the 11 congressional districts
• The signatures can be gathered only by people who themselves live in Virginia

The rules do not allow write-in candidates, in the primary. Also, the Board of Elections recognizes only two parties, the Democratic and the Republican, a fact that is being noted in the legal filings.

Texas Governor Rick Perry having failed to qualify for the Virginia ballot, his legal team went to court, suing GOPers on the state Board of Elections. Perry won a round Monday when federal judge John A. Gibney ordered Virginia’s local electoral boards to hold off on mailing out absentee ballots.

The response has been interesting.

Defendants Charles Judd, Kimberly Bowers and Don Palmer are appealing the January 9 order. They are joined by Virginia Attorney General Ken Cuccinelli, Solicitor General of Virginia E. Duncan Getchell, Deputy Attorney General Wesley Russell, and Senior Assistant Attorney General Joshua Lief. AG Cuccinelli initially was so dismayed at all the GOP candidates left by the wayside that he explored the possibility of changing the rules—in 2012. The idea died within a day, and Cucinelli issued a public statement affirming the state GOP’s determination that, indeed, Mitt Romney and Ron Paul are the only candidates qualified under Virginia rules to appear on the ballot in the Virginia primary.

On the plaintiffs’ side, the American Civil Liberties Union of Virginia filed an amicus brief yesterday.

Defendants are appealing the temporary injunction on mailing out absentee ballots. From defendants, in appeals court, comes this filing on January 10:

“In their Notice of Live Testimony, State Board defendants gave notice that they intend to prove the following through the testimony of Don Palmer:

• The presidential primary is scheduled for March 6. Two candidates met the statutory requirement of filing 10,000 valid signatures, including at least 400 from each Congressional district. In past elections, there were larger slates of candidates who have met the Virginia statutory requirement and were included on the primary ballot.
• It is the duty of the Commonwealth of Virginia to provide at least 45 days for military and overseas voters to vote by absentee ballot . . . January 9, 2012 had been set as a target date by the Board to have localities complete the preparation for printing of ballots. [56 days]
• That there are 134 electoral jurisdictions and each must print its own ballots, which must be approved by its own electoral board and then the State Board of Elections before they can be used. Moreover, there are two large printing companies that are utilized to print the vast majority of ballots in the Commonwealth and that on or around the second week of January is when most approved ballots will be sent to the printers . . .” [emphasis added]

Reasonably enough, the disadvantages to sending out two different ballots are argued, as is the cost of having the ballots printed over again.

What’s this about printing new ballots over again? –Well, back up front and center on page 3 of the filing, defendants state,

“As the attached Declaration reveals, defendants have received information under the mechanisms of the consent decree that lead them to believe that most of the 134 jurisdictions have already printed some or all of their absentee ballots. Because of the intervening holidays, Virginia jurisdictions will have only four business days after the ruling on January 13, 2012, to attempt to avoid violations of their legal duties.”

Thus it just so happens that immediately after defendants certified their two candidates, the two firms mainly used by local boards printed out Virginia’s ballots. Commendable efficiency, when you think about it:

• The deadline for signatures was Thursday, Dec. 22, 2011
• The deadline for certifying candidates to the Board of Elections by the Virginia Republican Party (RVP) was Tuesday, Dec. 27
• Rick Perry submitted his signatures Dec. 22; officials made a “preliminary determination” that there were not enough signatures Dec. 23
• The defendants’ appeal says that ballots were already printed by Jan. 10
• Two weeks remain until what is said to be the practical deadline for having ballots ready to mail, Jan. 27

In short, absentee ballots were readied in less than two weeks during a period including Christmas, New Year’s,  two weekends and two federal holidays. Now the state party establishment is arguing that it does not have time to re-do the ballots. Defendants argue that federal and state laws require absentee and overseas ballots to be mailed 45 days before the March 6 primary, i.e. by Saturday Jan. 21.

No claim so far as to whether the ballots’ already being printed either speeds up the process, or hinders it.

Still—back to the above—this is where it gets interesting. One claim made by defendants, as above, is that other candidates have been following these rules for years, and have managed to abide by them.

BUT

We already have the contrary statement on record, quoted in earlier posts, from the Republican Party of Virginia. In pertinent part, as they say,

“From the earliest days of the campaigns, RPV has actively told candidates that Virginia’s signature requirements could be a difficult legal requirement to meet for those who were new to Virginia politics.

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.” [emphasis added]

There is no long history of candidates’ successfully meeting these demands, in Virginia. Virginia did not set these rules until almost the end of 2011. There have been no general elections under these rules.

Q.E.D.

On other matters in the case

The ACLU amicus brief does not deal with any of the above but instead addresses the RVP’s odd requirement that signature gatherers must be Virginia residents.

More on that later.

Meanwhile, as previously written, the RVP statement makes abundantly clear that it recognizes the obstacles to ballot access:

“Second, Virginia’s State Board of Elections advises candidates to collect 15,000 or more signatures to be safe, based on their long experience with average failure rates.

Third, RPV adopted the 15,000-signature presumption because the Party wants all of its candidates to qualify for the ballot. The 15,000-signature presumption served as an incentive for candidates to comply with the law with a safe margin of signatures.

. . . 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.

Despite this early notice and RPV’s exhortations to candidates, only one candidate availed himself of the 15,000 signature threshold – Governor Mitt Romney. RPV counted Governor Romney’s signatures, reviewed them for facial validity, and determined he submitted well over 15,000. Never in the party’s history has a candidate who submitted more than 15,000 signatures had 33 percent invalidated. The party is confident that Governor Romney met the statutory threshold.

Rep. Ron Paul submitted just under 15,000, and was submitted to signature-by-signature scrutiny on the same basis as the other candidates who submitted fewer than 15,000 signatures. After more than 7 hours of work, RPV determined that Rep. Paul had cleared the statutory 10,000/400 signature standard with ease.

Two other candidates did not come close to the 10,000 valid signature threshold.

RPV regrets that Speaker Gingrich and Governor Perry did not meet the legal requirements established by the General Assembly.  Indeed, our hope was to have a full Republican field on the ballot for Republican voters to consider on March 6.”

By the way, the Virginia GOP also considered instituting a loyalty oath of sorts. Gov. McDonnell was among those urging the party to drop the idea.

These draconian measures are, let’s face it, new. CBS reports that the state GOP did not check primary petitions against a database back in 2008.