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A Significant Ballot Access Development

The Decision Only Applies to the GOP Senate Primary, BUT…

There was a development almost missed by many with COVID-19 and social distancing BUT it’s important (certainly important to Omari Faulkner) but it is a chink in the armor of our draconian ballot access rules.

The GOP primary for United States Senate to run a candidate against the incumbent Senator Mark Warner has been quiet for the most part. It actually slipped by me with the Presidential issues and news.

Two men of solid stature but unknown to most voters, Dr. Daniel Gade and Thomas A. Speciale, II, made the GOP primary ballot (If I read the rules at the state board of elections, the candidates had only from March 9 to March 26 to collect 10,000 signatures [400 from each Congressional District] to make the ballot.) in advance of the primary petitioning deadline.

So a third hopeful, Omari Faulkner, also with solid credentials (he did play college basketball at Georgetown but in spite of that [Go Butler!]) he still has solid creds, a compelling personal story, but is also largely unknown to the voters, looked like he was in trouble: He had just over 3500 signatures, a 100 from each district and the Thursday deadline was coming up.

Then COVID-19 happened: Hard to social distance when you have to actually observe the signer sign the petition. Faulkner was really in trouble. But he went to court! Armed with a fine election lawyer, the law firm with state senator Jill Vogel as a principal, you could say Faulkner heaved a winning three from half-court and…

Nothing but net! Hoyas win! (If Faulkner knew how hard it was to write those words!)

Richmond Circuit Court Judge W. Reilly Marchant ruled in Faulkner’s favor and in essence allowed him to make the ballot with 3500 signatures. Judge Marchant’s ruling (hat tip to the Virginia Mercury) was limited to the GOP Senate primary and it was due to the COVID-19 pandemic BUT there is helpful language in it that might help independent and third parties get ballot access.

It was helpful that the AG’s office did not vigorously defend the law (what else is new?) but Dr. Gade did object and filed a intervention (not like the one for an addict but a motion for permission to enter another person’s lawsuit due to its impact on you) and his campaign was allowed to intervene. Pretty clear that Gade would rather have one opponent than two and admittedly Gade and Speciale did get the signatures required so they do have a point.

There needs to be a deeper analysis of this opinion but it is helpful potentially to third party and independent candidates as well, although limited to the GOP primary.

Judge Marchant applied the most stringent criteria of legal review (strict scrutiny) to the petitioning statute (he called petitioning a “light burden” which I am not sure I agree with) and noted there was no emergency exception to the petitioning requirement. But the court found that “political dialogue and debate” would be hindered at the high level Faulkner seeks to accomplish and that allowing Faulkner to be on the primary ballot furthers “reasonable and educated debate among all candidates for office advances the political conversation…” promoting the public interest. This language is not limited to an analysis by a GOP candidate in a primary but also third parties and independents, too although the holding is so limited.

Most significantly, Judge Marchant wrote that neither the Democratic Party nor any other party holding a primary election (not sure any other party in Virginia COULD hold a primary) were served so there is no way to extend this decision to those parties. (The Virginia Libertarian Party had their convention and I understand they had some consideration of a US Senate candidate but I have not heard that result.)

We do not know how long this social distancing regime will last. June 9 at 7 pm is the signature deadline. There is a function of time and effort after social distancing is no longer legally mandated. I recommend that third parties and independent candidates keep themselves apprised on developments. And let’s in the next session of the General Assembly have a serious discussion of ballot access. Maybe a study bill so people can give testimony as to the real expense for petitioning and how onerous the 10% party requirement is.

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 “A Significant Ballot Access Development”

  1. Brookly says:

    Candidates had from January 2 through 5pm on March 26 to gather signatures. The first day that candidates can TURN IN said qualifying signatures was noon on March 9.

  2. L4RG

    Such a very nice article, Keep written and sharing this type of article


  1. […] behind the scenes in the Republican Party who did not like his effort to get on the ballot. Now I blogged on this effort and I felt it was right considering (although if you had asked me I’d have said it was going […]

  2. […] Faulkner from the GOP US Senate race. And I know Daniel Gade’s campaign intervened in the Faulkner lawsuit in Richmond Circuit Court. So I was unsure if I was even going to vote in the primary. I was angry. […]

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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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