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Here’s Why The Convention is Still On and Why It Matters

There is all kinds of claims swirling about on this convention vs. “firehouse” primary. The matter is simple to me: Changing the mode of selection at the last minute seems wrong to me. Vested rights of delegates elected at mass meetings and vested rights of candidates, too. (Time for my lawyerly disclaimer: I am not trying to give legal advice. I am saying why this thing is not resolved just because a high party functionary and a sitting delegate says so.)

Now some will argue arcane areas of Robert’s Rules of Order and they may have a point: Can’t amend a motion that previously passed. A parliamentary body may reconsider the previous motion but that motion has to be made by one who was on the prevailing side. That could arguably be the Hanover rep who probably stands in the shoes of the prior Hanover rep.

I think at the end of the day the courts (and yes this thing is going to court – probably not Federal court to the surprise of some – rather state court; A litigant can either file a petition with a local circuit judge or directly to the Supreme Court of Virginia for a writ of mandamus.) will look to the substance of the issue not a parliamentary nicety.

A writ of mandamus is a request – a petition – for a court to order a public actor or body (and political parties are for this purpose public actors) to do an act that public actor or body is required by law to do. The least amount of discretion denies this “extraordinary” writ. (The opposite is a writ of prohibition – to prohibit a public actor or body from taking an action that it is required NOT to do.)

See isn’t law so much fun? There’s more fun coming so hang on!

Now there is a 1931 case of our Supreme Court in Virginia (Chichester v Reamy) that dealt with the county Democratic primary in 1931 in Stafford. The local Dems set up a primary and then tried to change the primary after certain candidates for local/county office had qualified for the primary. Read this factual statement from the decision:

On June 27th the eighth congressional district Democratic committee reversed the action of the county Democratic committee of Stafford in calling off the said primary. In response to a request of petitioners to declare them the nominees of the party, the Democratic committee of Stafford county held a meeting on July 15, 1931, and passed a resolution adhering to its former resolution in rescinding the primary and refused to declare those who had no opposition nominees of the Democratic party for the offices for which they had qualified.”

There was indeed a primary set and certain persons qualified for it and were unopposed. The party refused to declare these persons the winners of the primary.

The candidates went directly to the Supreme Court of Virginia and sought the writ of mandamus – and it was GRANTED! They won their positions as the Democratic nominees and in 1931 Virginia that was tantamount to election. And here’s why the candidates won (emphasis added by me):

All the provisions of the statute as to calling the primary, the payment of the prescribed fees and the filing of applications had been fully complied with by the petitioners before the committee undertook, on June 13, 1931, to rescind their previous resolution of February 7, 1931, which called the primary. The powers of the committee are prescribed and limited by law, so that it seems to be perfectly clear that the committee had no legal authority for passing the rescinding resolution of June 13, 1931. At that date the rights of the Democratic voters to choose the candidates of the party had already attached, and the rights of the petitioners as candidates had also then become fully vested. The committee had then no legal authority to cancel the primary. Their attempt to do so was illegal and void.

It is significant that the Court held that both the voters AND the candidates had vested rights. The voters would be in this case both the pre-filed delegates AND those voters who voted for the pre-filed delegates and alternatives at legally called mass meetings held in three different places. And the two candidates who filed to be candidates also had vested rights in the process. And I like the language that says there is “no legal authority” by the party officials to “cancel the primary” after vested rights of voters and candidates had attached.

Notwithstanding all that, there are two issues that trouble me on this case: The first is that a primary election by definition involves directly the state electoral apparatus in a way a convention does not. The second is: This case has not been cited by any court, ANY court, since 1931! That is scary.

Going back to the convention, there is no regulation of a convention like there is a primary. See Va. Code Ann. Section 24.2-509 (part of this statute is the very law struck down by the Fourth Circuit as preventing the incumbent from a veto on the process). But the part A does authorize the political parties to set up methods other than primaries:

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.

And admittedly there is no statute requiring a political party to stick with its first choice. But it would still seem that the logic of Reamy – that both the voters and the candidates have vested rights in the process as selected and thus the procedure cannot be changed – applies to conventions, mass meetings and firehouse primaries.

We have not even touched the Federal issues inherent in this matter concerning rights of voters, candidates, or the political party involved. That is too deep for me to cover tonight.

The moral of the story: Whether you are for Peace or Wyatt, if you are a delegate or an alternative: BE at the convention and vote your conscience. This convention could well be the one and only way to select this candidate at this election cycle.

[I would like to thank Jeffrey R. Adams, counsel for the Wyatt campaign, for several of these ideas including the Reamy case and its holding.]

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

4 Responses to “Here’s Why The Convention is Still On and Why It Matters”

  1. Mr. Nobody says:

    I agree with, appreciate, praise, and enjoyed this article of yours. Thanks for taking time to write it. BUT, as corruption based as I believe not only politics, but also the courts system are in 2019, I would betcha that the Peace regime apparatus probably has the court side of this whole deal figured out. Maybe not, but I would just about bet on it. Cronyism and big money may prevail here. I know of nothing theses days that is not rigged where power which ultimately results in riches, are involved.

    Now, if what I wrote above is not correct, especially regarding the corruption based court system, why would the Peace regime bother with canceling the convention? Not doubt his advisers and he knew of the court decision you cited above??? And, who would put up the cash for a challenge to the Peace regime in court?

  2. Patriot says:

    The situation in the 97th LD is an embarrassment to the Republican Party in general and to the RPV and Peace campaign in particular.

  3. Mr. Nobody says:

    Sandy, just who does Scott Wyatt have on board in the Republican Party that can and will certify the results of tomorrow’s convention to the Virginia Board of Elections?

    Without certification, doesn’t that mean that it doesn’t count as a convention?

    • Sandy Sanders
      Twitter:
      says:

      Thank you Mr. Nobody for coming by: I think the chair of the 97th will take the results to the RPV headquarters in Richmond and then to the State Board of Elections. The loser of that decision will almost surely go to court.

      Sandy

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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