Home Virginia Politics Is the Virginia General Assembly ready to defy a Federal Judge?

Is the Virginia General Assembly ready to defy a Federal Judge?

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( – promoted by lowkell)

According to Wes Hester’s fine reporting this morning in the RTD, it would appear the General Assembly, or at least the House of Delegates, is prepared to defy the clear warning issued earlier this month from federal Judge John A. Gibney. Did anyone read what he said about the issues raised in the lawsuit by then presidential candidate Rick Perry and crew?

To be fair, this may not be the intention of leading GOP lawmakers Mark Cole and Chris Jones. They have introduced dueling legislation to clean up the ballot access mess now existing for the Senate primary. As of January 1, when signature gathering commenced, the new Congressional district lines required by redistricting had not been approved. Heck, no legislation had even passed the GA.

Under VA law, a Senate hopeful must get 10,000 valid signatures, with at least 400 coming from each of the state’s 11 Congressional districts, to get on the ballot.

Thus, the mess: When it comes time to review the signatures to determine their validity, what will be the applicable CD boundaries, the old 11 or the new 11? The State Board of Elections ruling in this regarded was totally bonkers in the view of everyone involved in politics who wasn’t bonkers to begin with.

The SBE ruling, which they would say is required by state law, produced this result: a candidate who thought he or she had collected the signatures in the right 11 C.D. mix could find out that what qualified a person for the ballot at the time the signatures were collected – the existing CD boundaries – doesn’t anymore,  and it is too late to go out and get 10,000 in the right mix from the new CD boundaries.

Cole and Jones are to be applauded for trying to clean up this silly mathematical mess.

HOWEVER: BOTH BILLS, while addressing some problems, fail to fix a serious UNCONSTITUTIONAL element in current VA law.

Judge Gibney put VA on notice about this UNCONSTITUTOINAL element earlier this month.

“To wit,” as lawyers say: It is unconstitutional for Virginia to require that an individual circulating petitions to get signatures in Congressional District X be a resident of Congressional District X.

Was anyone listening to the Judge, especially at the Attorney General’s office?

It is true that technically, Judge Gibney indicated the state of the law in the 4th makes it clear that Virginia can not require those circulating petitions to gather signatures for a presidential candidate be a resident of the state of Virginia.

While this ruling seemed to surprise folks at the AG’s office, as Pat McSweeney and I have pointed out, this is basically the state of the law in other places as well ever since the Colorado case.

Extrapolating: This same legal analysis applies to Virginia trying to require those getting signatures in C.D. X be a resident of C.D. X.

We can get into the first amendment analysis if you want, but it is basically what Judge Gibney already pointed out IN WRITING.

ERGO: The Jones and Cole bills need to be amended to erase this UNCONSTITUTIONAL PROVISION from state law.

Otherwise, one of the Senate candidates is going to sue: and WIN.

Moreover, if they do win, it might require the court to put the whole lot of them on the ballot depending if the state fights the lawsuit and leaves little time for collecting signatures on the state loses the case..

In theory, a candidate could have someone not qualified under current law circulate petitions, but that would be a knowing violation of the law, and I don’t believe a court can punish a political candidate because he/she refused to engage in what is I suppose a form of political protest.

That they first went to court to get a ruling is reasonable, and so the court can’t punish them politically as it were for not collecting signatures in violation of the law.

Truth is: the GA needs to by EMERGENCY LEGISLATION at least fix the residency issue so a candidate can start collecting signatures with non-resident circulators as required by the Constitution.

As to the other issues addressed by Cole and Jones in different ways, I think their bills can be combined to achieve basically what each wants in a fair way and included in this same legislation: but if not, then at least ASAP fix what all can agree on right now.

Or face a stern reprimand from Judge Gibney.

  • Elaine in Roanoke

    This whole thing is a mess of monumental proportions, showing me – yet again – that Republicans just aren’t capable of governing. The Virginia Constitution clearly states that redistricting must occur in the year following each census. It did not in 2011, mainly because the GOP refused to compromise and decided to take chances with gaining control of the state senate and forcing through their plan.

    It seems to me that there are three issues here that require a judicial decision:

    1. The constitutional date for redistricting was not met.

    2. The population of the state would seem to require, given the state’s history of trying to marginalize minority voters, that minority voters have a strong presence in more than just the 3rd district.

    3. The state regulations about the collection of petition signatures for the ballot may well be unconstitutional.

    Thanks for pointing out the absurdity of this all.