(Full disclosure: Former DPVA Chair Paul Goldman is working with Republicans on an effort to get Rick Perry, Newt Gingrich, and possibly other Republican candidates on the primary ballot. Paul and I are not coming from the same place on this, but that’s ok, let’s have the discussion and the debate on an important issue! – promoted by lowkell)
Before everyone buy’s into their clever political spin, wait until I can finish my column for publication today to show that it is the Romney people – they attacked my proposal for wanting to benefit some at the expense of others for changing the rules in the middle of the game: but the truth is far different. I am the one who tried to keep it on the level of the law which requires one standard for all which is suppose to be the rule of the game according to state law and the federal and state constitutions.
But the Romney camp wants to change this rule in the middle of the game: not those of us trying to preserve the integrity of VA’s laws, constitution and electoral system!
Stay tuned. Truth is, under the usual interpretation of statutory, constitutional and applicable federal law, the rules were changed for 2012 in terms of how they were implemented contrary to what is suppose to be required prior to such changes. Romney is the one benefiting from the new GOP rule this year which changed the rules in the middle of the game!
I tried to play it even handed, give everyone access to the ballot by a uniform, fair standard.
Truth is, the Romney people have reason to fear being thrown off the ballot if the federal judge in the Perry lawsuit follows the strict guidelines of state law. I think Romney could still get back on, but it would make VA even a bigger mess.
My proposal moots all this out and makes it fair, transparent for everyone especially the voters, which is the people who we need to protect, it is their right to choose here.
Let the record showed I tried to play it straight. But now I have to set the record straight.
UPDATE: A lot more by Paul on the “flip” about how “two wrongs don’t make a right.”
Those defending VA ballot laws essentially say two wrongs make a right!
by Paul Goldman
Myself and others have tried to address the Virginia ballot access mess by focusing solely on the law. But some have tried to make it partisan, and also falsely charge myself and others for wanting to change the rules in the middle of the game.
Not true at all: quite the opposite. Those defending the status quo want not only for the rules to be changed in the middle of the game but are claiming two wrongs make a right!
Just because you violated statutory and constitutional standards in 2008 doesn’t now make it right in 2012! Just because you didn’t abide by the statute and constitutional in having a proper review under the delegation of powers doesn’t mean it is now okay to do whatever you want in 2012.
The rule of law set by the Civil War Amendments in the 1860’s and state law in 1999 remain the rule of the “game” to use my critics word.
I don’t fault anyone for advocating their self-interest, that’s the human condition. But while they are entitled to their own opinions, they are not entitled to their own facts or law.
So in that regard, I appreciate the cleverness of their “spin”, claiming – falsely – that myself, former Republican Chairman Pat McSweeney, along with former GOP Chairman Pat McSweeny, and former DEM AG’s Tony Troy and Steve Rosenthal want to change the rules in the middle of the game in terms access to the presidential primary ballot.
Let’s go through the facts and law step by step.
Section 24.2-545 of the Code of Virginia lays out the basic statutory requirements for getting on a presidential primary ballot. The U.S. Constitution grants Congress the power to regulate presidential regulations but Washington has chosen to leave access to a primary ballot essentially to each individual state.
Ever since the so-called “Black primary cases” before the Supreme Court, it has been clear the Civil War amendments to the Constitution would ultimately extend, as they have, to the actions of state government in insuring the integrity and fairness of the primary process. The issue today revolves around the March 2012 presidential primary process. The basic requirements for achieving access to the primary ballot in either the Democratic or Republican party are laid out in Section 24-2-545: a candidate in Virginia must submit petitions with at least 10,000 valid signatures from registered voters, 400 of which must come from each of the Commonwealth’s 11 congressional districts. Such requirements apply equally to Democratic and Republican hopefuls under our scheme.
While much is made of the first amendment right of association of political parties – and rightfully so – neither the Democrats nor the Republicans have any inherent party right to demand a primary; this is controlled by state law. Virginia law gave both parties the option to call a primary, and both did. If it didn’t provide such an option, there could be no primary. The General Assembly also had the option of requiring the State Board of Elections to decide which presidential hopefuls qualified for the ballot. However, lobbied by the major political parties and consistent with prior practice, Section 24.2-545 gives the Democratic and Republican chairs the sole power to tell the SBE whether a candidate has earned a “certification” for listing on the primary ballot. According to the SBE, this statute gives the agency no role in such “certification.” Moreover, the SBE provides no written or other guidance on the appropriate standard of petition review.
Let’s understand: The delegation of such public power – the state’s legal and constitutional responsibility over such elections is black letter law – to a private party is lawful provided the private party uses a standard of review consistent with the one transparent and uniform standard required by the state and federal constitutions under 24.2-545. There were possible other schemes. But this is the one chosen by the General Assembly and approved by the Governor. The Democratic and Republican Party don’t have an option therefore of disregarding the law and constitution. In talking to officials of both parties, it is clear they don’t believe the SBE – that is to say the state government – has any role in telling them how to review the petitions. Since the SBE has taken a hands-off posture except for repeating the statute, how all this led to our current mess is understandable.
But it created a legal and constitutional time bomb. As a practical matter, as long as everyone who files gets on the ballot – as in 2004 for example – it just sits there ticking away.
It took the monumental incompetence of the Perry and Gingrich campaign teams to force it out in the open! (In that regard, all the news stories saying I was working with the Gingrich campaign to get him on the ballot are simply false. A non-partisan, national conservative group asked my help to clean up the mess after reading my article on Blue Virginia advocating emergency legislation which was not candidate-specific at all. So yes it would help Gingrich, but Perry, Santorum, et. al equally. Gingrich may have a particular case that applies him alone but that is a separate issue, he has hired lawyers to represent him in the Perry law suit. I don’t have a dog in that hunt. But if you have been the subject of as many news articles as I have over the years, you just learn not to sweat the small stuff.)
The key fact to remember: Any first-year law student knows a decision to allow or deny ballot access under the VA law must be made according to one uniform, transparent standard applicable to the petitions to be reviewed. The Party Chairs do not have the discretion to develop their own personal or party rules, they are in effect acting as agents of the state.
But in this case they violated this basic rule.
LET ME STOP HERE FOR A MOMENT:
This is the rule of the “game.” Again, the Constitution set that rule years ago. State law set the rule when passed in 1999. That rule remains the same: one uniform, transparent standard of review.
Unfortunately, here in 2012, this rule of the “game” has been changed by the Democratic and Republican Party. They don’t have the arbitrary power to do it.
Again: Two wrongs don’t make a right.
The Democratic Party uses a form of random sampling to review the petitions. The Republican Party uses two different standards. A GOP candidate submitting petitions totaling at least 15,000 signatures is automatically given “certification” for the ballot. But a GOP hopeful who submits 14,999 or less gets no such automatic pass; instead, every name is checked until he/she either gets certified or is rejected for failing to meet the threshold. This comic creation of a Democratic standard for Democrats, and a GOP standard for Republicans, violates too many laws and constitutional provisions to list. There are other problems, but this makes the necessary point right now.
More facts: In turns out that one candidate’s petitions WERE NEVER CHECKED, rather he got an automatic “certification” under the GOP rules.
THAT IS CHANGING THE RULES IN THE MIDDLE OF THE GAME!
This is not the constitutional or legal standard. The state seems to be claiming this is how it was done in 2008 as confirmed today in the RTD by former GOP Chair John Hager.
BUT JUST BECAUSE THEY WERE WRONG TO USE IT IN 2008 DOESN’T MAGICALLY MAKE IT RIGHT FOR 2012!
I want to use the rule as established by the law and constitution, that’s the original rule which remains. Anything short of that is changing the rules. The rule has always been one uniform transparent and fair standard.
This is achievable using the objective federal matching fund criteria in the Code of Federal Regulations. It is not subjective. It can be checked by the SBE.
Due to the mess created by trying to change the rules, we need emergency legislation
to fix it.
That isn’t my first choice, but it is the only good option left to fix it for March 2012.
When we reduce the legal system to two wrongs make a right because that’s the way to avoid having to come to Richmond early, work together and ensure that people have the right to vote as intended, it is a sad day for Virginia in my view.