As I have stated before, I am not an attorney. But I understand the significance of words used in legislation and the consideration placed on these words in a court of law. And the concept of “Legislative Intent” is often a major consideration in a hearing.
So, in contemplating the words and intent of Virginia’s Election Laws, several questions are nagging me.
First and foremost, why did the Virginia State Legislature deem it necessary to exclude Presidential Primaries from the section that addresses Virginia Statewide Elections?
The simplest reason I can think of is because this deals with a party nomination, not a general election. And exactly how much power does (or should) a state legislature exert on the nomination process of a political party? The eventual nominee, however chosen, is not the winner of the election. They have no power or authority to govern. They are simply the nominee of a party.
The eventual nominee must meet certain requirements to be included on the ballot in a general election, and the state should have rules on that, but is it appropriate for the state to become involved at the nomination level to the extent of placing demands on how the party conducts it’s business of nominating a candidate?
Probably not. And any legislative involvement at this stage of the process is probably an overreach of state authority. At least until the nominee is chosen. At that point, the state should have authority.
Section after section of Title 24.2 – ELECTIONS includes the phrase other than a candidate for a party nomination or a party nominee. If you search for “party nomination” you will see that much of Title 24.2 specifically excludes the party nomination process.
Now have a look at the language the Legislature placed in the requirements for statewide ballot inclusion. Even the title of the section spells out that the petition signatures are required.
And the wording of the signature requirement is not ambiguous at all:
The name of any candidate for any office, other than a party nominee, shall not be printed upon any official ballots provided for the election unless he shall file along with his declaration of candidacy a petition therefore, on a form prescribed by the State Board, signed by the number of qualified voters specified below after January 1 of the year in which the election is held 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.
Each voter signing the petition may provide on the petition the last four digits of his social security number, if any; however, noncompliance with this requirement shall not be cause to invalidate the voter’s signature on the petition.
Pay attention to the portions underlined and/or in bold print (my emphasis added). First, these requirements are restrictive and absolutely spell out that a certain number of signatures are required. And that an address is required. And even further, that the person collecting the signatures be qualified to run for the office for which he is collecting the signatures. Which means that the person collecting the signatures must live in the appropriate area and be a qualified voter.
This is a very high standard.
Also note the use of words and phrases here. “Shall” and “Shall Not” are mandatory. Note the use of the word “may” as far as providing a Social Security number, or the last 4 digits of the SS# are optional.
When the Legislature uses the word “shall” then it is not optional.
When they use the word “may” it is optional.
And most importantly, the section exempts primary party nominees. Obviously, this was not accidental. In order to appear on a ballot for a general election, all of these conditions must be met.
But not for a party nominee. They are not required to collect the signatures as required for the general election to be on the primary ballot, or whatever other method is used.
So what does the Virginia Code say about a party primary?
Well, there are a few requirements imposed on a potential nominee such as those in § 24.2-503. Deadlines for filing required statements; extensions.
The written statements of qualification and economic interests shall be filed by (i) primary candidates not later than the filing deadline for the primary,
Note that this says shall. So the person seeking the nomination must be qualified and disclose their economic interests.
Section § 24.2-509. Party to determine method of nominating its candidates for office; exceptions gives the individual party pretty broad power to determine their nominee.
A. The duly constituted authorities of the state political party shall have the right to determine the method by which a party nomination for a member of the United States Senate or for any statewide office shall be made. The duly constituted authorities of the political party for the district, county, city, or town in which any other office is to be filled shall have the right to determine the method by which a party nomination for that office shall be made.
Note that this is a right. The party has the right to nominate their candidate in any way they choose. The state is only interested that the candidate be qualified to be on the ballot in the general. So, one would assume that it would be perfectly within Virginia Law for a party to retreat to a smoke filled back room and have the “establishment” members of the party simply pick someone.
The law does speak to the qualifications of a primary candidate. Section § 24.2-519. Qualification of primary candidates reads:
In order to qualify as a candidate at any primary, a person must be legally qualified to hold the office for which he is a candidate and be qualified to vote in the primary in which he seeks to be a candidate.
So the law requires no signatures for a primary ballot.
Section § 24.2-520. Declaration of candidacy required has a requirement that the candidate file a written declaration and, interestingly, has the candidate agree that if he loses the primary his name may not appear on the general election ballot. So, no third party “sour grapes” candidate allowed if you lost a primary. An interesting law.
Section § 24.2-523. Candidates to pay fee before filing lays out the fees. No exemption for primary candidates here!
In 1999, the Virginia Legislature saw fit to add a new section dealing with Presidential Primaries. This section has been amended 4 times since it was enacted. Before we look at the language here, let’s look at the evolution of the section by these amendments.
In 2000, the Legislature changed the part dealing with who should pay for these primaries. Originally, the cost was to be paid by the counties and cities. The amendment declares that an emergency exists and that the Commonwealth, not the localities, will pay for the primaries retroactive to the passage of the amendment. Obviously the state took back an unfunded mandate.
In 2003, the state made a rather significant change. They added a paragraph that shifted much of the responsibility from the State Board to the Party Chairman. The Board simply sends any petitions over to the Chairman and lets the Party Chair determine who is put on the ballot.
In 2011 there was a small tweak that seems to allow a party more leeway in delegate selection and designation regarding the primary victor.
But one of the most important differences in the section dealing with Presidential Primaries is the use of the word may instead of shall. We have already examined the mandatory nature of the petitions for the general statewide elections. The language and requirements are quite different, however, for a Presidential Primary.
B. Any person seeking the nomination of the national political party for the office of President of the United States, or any group organized in this Commonwealth on behalf of, and with the consent of such person, 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.
In examining the language in the statewide section, the intent is obviously to force a candidate to gather the signatures and the name shall not be on the ballot without them.
Quite different language and tone here.
Obviously, when the state intended a petition to be mandatory, they language was clear.
So is there a question of the state’s role in party primaries reflected in the language here? Is there a concern that perhaps the state should tread softly in a Federal Presidential Election?
And what role does the State Board play? Are they simply the “neutral” party designated to take in petitions if required by a party and act as a type of third party verification to keep a party honest, or at least be the designated arbiter on the prompt and timely filing of these petitions?
It is obvious that the state has no interest in checking the petitions and leaves that up to the party. Is that because the requirement to submit - or not submit - a petition and signatures is up to the party? And does the state really care how a nominee is selected?
A case could be made that the hoops through which a potential nominee for President must jump are up to the individual party outside of a few qualifiers such as eligibility and proper declaration of candidacy and financial filings which might exclude the nominee from the General Election ballot.
It seems that the intent is to simply allow the party a great deal of latitude in selecting a nominee. The Legislature is obviously either concerned that they do not have authority to dictate the exact rules in a Presidential Primary, or they simply think it better to allow the party the freedom to decide how they nominate a candidate.
After reading through this section for 2 days, one thing is for sure. Virginia’s Election Laws, particularly concerning Presidential Primaries, are unclear. If the Republican Party wishes to have petitions, it seems to me they are free to do so and the State Board will help. If they decided to not require them, I see nothing in this law that states they shall not be placed on the primary ballot.
It seems that whoever Pat Mullins decides, by whatever process he wishes to use – as long as the mandatory qualification requirements are met - can be on the primary ballot. I see no authority for the state to refuse to allow any of the candidates – even those who did not turn in any signatures – on the primary ballot.
But the RPV, as long as the rules were sufficiently documented and done in the time mandated by the state, has control of the presidential primary.
But there are now questions arising as to whether or not the “No Count” rule was put in at the beginning or not.
In 2000, 2004 and 2008 any candidate who turned in 10,000 signatures with 400 from each congressional district was automatically on the primary ballot in Virginia. Now, it appears, the RPV has changed the bar to 15,000 to avoid verification. Exactly when this rule change was implemented is important. Did the RPV change the rules in the middle of the game? If so, that’s not allowed.
A number of high ranking Virginia Republicans have positions with the Mitt Romney campaign. And they also have a great deal of influence with the state party officials. It opens the door for questions about raising the bar after they found out how high the needed to be to get their guy in.
I’m not saying there is any impropriety here. But there is at least the perception of impropriety.
But Moe Lane at RedState has an opinion up that a recent lawsuit against the Republican Party of Virginia may be the reason behind the change.
Osborne v. Boyles. On October 24th independent state delegate candidate Michael Osborne filed suit against the Republican party of Virginia (specifically, Fifth District GOP Chairman Brandon Boyles) because of this policy: as the article notes, “the law simply requires that party-affiliated candidates present their petitions to the local party chairman – in this case Boyles – who is responsible for reviewing the petition signatures on their own. It does not dictate how thorough this review must be or give state officials any power to challenge it.” The case is still pending – interestingly, the election that this lawsuit was ostensibly addressing has come and gone – but according to Winger the VA GOP decided in response to bump up from 10K to 15K the threshold for simply deeming the requirements as being met. The complications of it being the day after Christmas makes final confirmation of all of this difficult, but Osborne v. Boyles is an actual case and Richard Winger is one of the go-to guys on the arcane subject of ballot access: what I can check out about this story I have checked out
And Virginia Attorney General Ken Cuccinelli had this to say on the mess:
As I noted above, it now appears that the only two candidates that will be on Virginia’s ballot on March 6th: Governor Mitt Romney and Congressman Ron Paul. While I’m glad for them, it screams out for making our ballot more accessible.
I have had the opportunity to talk to a number of the candidates and their campaigns in the last month or so, and the Bachmann folks tell me that Virginia is the third hardest ballot access state in the country. I personally don’t think that’s a good thing.
To get on the ballot, a presidential candidate has to collect 10,000 legitimate signatures across Virginia – county by county and city by city – with at least 400 legitimate signatures in each congressional district. Virginia’s State Board of Elections recommends that campaigns come in with over 15,000 signatures, including over 700 from each congressional district given what a high proportion of signatures typically fail some requirement or another.
I would throw out for consideration that we should lower our requirements to 100 legitimate signatures per congressional district.
Let’s face it, absent a serious write-in challenge from some other candidate, Virginia won’t be nearly as ‘fought over’ as it should be in the midst of such a wide open nomination contest. Our own laws have reduced our relevance. Sad.
I hope our new GOP majorities will fix this problem so that neither party confronts it again. I for one would like Virginia to be heard from in our nomination process, and I’m sure you would too.
There is no doubt that the Virginia Law is problematic and should be changed. Or at the very least clarified!