LG Bolling the one changing the rules: Has he forgotten the Voting Rights Act?

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    by Paul Goldman

    Lt. Governor Bill Bolling criticizes  former Attorney General Tony Troy, former Attorney General Steve Rosenthal,  myself, and hundreds of thousands of Virginians who believe in the rule of law. He says we  want to “change the rules in the middle of the game” according to the Virginian Pilot. [For purposes of full disclosure, after writing a piece on Blue Virginia discussing some of the legal and other problems with the current Virginia ballot access system, a non-partisan conservative group first established by future President Ronald Reagan called, discussed stuff, and then hired me to help clean up the Virginia primary mess. Some in the media suggested I was hired by former Speaker Newt Gingrich’s campaign or a Super Pac backing him. Citizens for the Republic is none of those things. And there is no prohibition on my talking to anyone of the lawyers for any candidate who might want to pick what is left of my brain.]    

    Actually, it is Mr. Bolling who wants to change the rules in the middle of game.

    In fact, Mr. Bolling not only wants to change the rules in the middle of the game, he insists on new rules which he would readily concede benefit his candidate for President.

    Has he forgotten the Supreme Court case of Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)?

    As former Presidents Ronald Reagan, George H.W. Bush, and George W. Bush – all Republicans – have said in supporting the Voting Rights Act, it is important for political parties to abide by the rule of law.

    The Voting Rights Act – supported I thought by Mr. Bolling – is aimed at preventing the LG and his supporters, indeed any similar official or group backing any candidate in any political party, from changing the rules in the middle of the game.

    FACT: In 1981, I sued the Democratic Party under the Voting Rights Act [VRA], and got a seminal ruling, In a nutshell it said in certain circumstances, rules or procedures adopted by a state party and impacting in a meaningful way on the potential outcome of their nomination process could not go into effect until such rules or procedures had been approved by the lawful authorities. Reagan-Bush-Bush realized this was the only way to insure a fair election and protect the rights of all voters.

    Why? As Reagan, Bush41 and Bush43 pointed out, it was important to make sure no one in political power could change the rules in the middle of the game to the detriment of the voters.

    The lawful rules, as they pointed out, where the rules/procedures/laws in effect at the start of the election cycle at issue: today this means the 2012 the Republican and Democratic presidential primary processes which end with a vote this coming March. The candidates started running back in 2010 really.

    As the Morse case – which the VA GOP lost I might remind Mr. Bolling – made clear,  a primary election process falls under the Reagan-Bush-Bush rubric of not allowing the GOP or the DEMS to change the rules in the middle of the game. Thus the rules/procedures must abide by the VRA.

    As we discovered yesterday in Andrew Cain’s great piece in the Richmond Times Dispatch, the Republican Party of Virginia had a different rule/procedure for reviewing access to their presidential primary ballot in 2008. We know this from no less a source than the Chairman of the GOP at the time, John Hager, a former LG like Mr. Bolling.

    As the Morse case makes clear, changing the rules in the middle of the game on which candidates get to compete in the primary – and thus whether Virginians supporting said candidate can effectively exercise their franchise come March – is a classic circumstance, a reason the VRA was backed by Reagan-Bush-Bush. .

    Why? As the Morse case explains, the ability of GOP Chairman Pat Mullins and his staff to change the rules in the middle of the game is derived from state action, that is to say the passage of Section 24.2-545 of the Code of Virginia. Under the U.S. and state constitution, the responsibility for conducting fair, and transparent elections, consistent with the Civil War Amendments and such principles as “equal protection”, “due process” rests with the State Government of Virginia.

    Thus, the GOP has no inherent right to hold a primary, much less have their Chairman – and this is of course true on the DEM side too – decide who is on the ballot and who isn’t. This power only comes if delegated by the General Assembly, thus making them in essence agents of the state for this purpose. Thus the “state action” rubric.

    The GA, in its wisdom, decided to pass 24.2-545, which took the State Board of Elections [SBE] out of the loop : and delegated to the Chairman of the two major parties the responsibility of deciding which presidential primary hopefuls could earn a place on their respective primary ballots. Neither the Statute nor the SBE provides guidance on the proper way to review the signatures of voters collected by candidates and submitted for review in hopes of their making the ballot.

    As the Supreme Court has said many times, such delegations of public power to a private group is fraught with danger. As Reagan-Bush-Bush made clear by support of the VRA, these grants of political power have to carefully reviewed whenever they try to change the rules in the middle of the game.

    We can presume the state pre-cleared the statute in general: however, this doesn’t end the lawful responsibility of either the party or the state to pre-clear any changes in how the party implements it’s power under 24.2-545. The Morse case is clear on that: Any changes in party rules/procedures which have a practical impact on how the party exercises it’s powers can’t go into effect until okayed under the VRA.

    In layman’s terms: Whatever the rules at issue were in 2008, they are, to use Mr. Bolling’s words, the “rule of the game” in 2012 unless the GOP has received the okay to change them under the VRA. .

    THE BOLLING MIDDLE OF THE GAME RULE CHANGE # 1:

    There is nothing in 24.2-545 which says the GOP Chairman had the right to automatically certify Mitt Romney to the March 2012 presidential primary ballot on the grounds his campaign submitted petitions with more than 15,000 signatures. By the GOP’s own admission, they never checked any of  the former Bay State Governors petitions in the manner contemplated by the grant of state power in 24-2-545.

    Moreover, not did Mr. Mullins follow the plain meaning of the statute in making the required “certification” of Mitt Romney to the state ballot, such certification under Mr. Mullins’ name communicated to the State Board of Elections. As the SBE told me, that state agency has no power to review Mr. Mullins’ certification or denial of certification: they just accept whatever he says, and they don’t inquire about how he made it.

    As Mr. Hager made plain in the newspaper yesterday, Mr. Mullins changed the rules in the middle of the game, since the way he reviewed petitions in 2012 – Romney got a free pass but Gingrich, Paul and Perry got their petitions checked voter by voter – is not the way it was done in 2008.

    Remember: The “rules of the “game” as Mr. Bolling calls them are what the party did in 2008 assuming as I am they got VRA okay for any changes. If they didn’t –  no way to know right now – the Virginia Primary mess just got a lot messier. But for right now, we have to assume the 2008 primary was lawful, so the rules used in 2008 must be the same as in 2012 unless lawful approval to make changes has been received.

    Question: Has the Reagan-Bush-Bush procedure been followed, or have Mr. Bolling/Mr. Mullins “changed the rules in the middle of game” illegally?

    Answer: The VA GOP and LG Bolling are saying they cleared everything since otherwise they know they are blowing a lot of smoke right. But did they? I have not seen any proof one way or the other. Have you? Doesn’t Mr. Bolling or someone at the GOP, or the State Board of Elections have an obligation at this point to inform the public whether the VRA has been followed?

    BOLLING RULE CHANGE IN THE MIDDLE OF THE GAME # 2:

    LG Bolling and VA GOP want to use what they call a “loyalty” oath as a precondition for voting in the presidential primary.

    The GOP DIDN’T NOT USE such a loyalty oath in the 2008 presidential primary. So once again, the Supreme Court decision in the Morse case becomes crucial.

    24.2-545 permits a  “loyalty” oath, indeed the very wording of the one SBE just approved at the request of the VA GOP. Again, I will presume the statute itself was pre-cleared by the DOJ. But again, this doesn’t end the inquiry.

    Why? Several reasons. First, since this rule/procedure/election law  is self-evidentially a change that can affect voting rights – it stops people from voting who refuse to sign the “loyalty” oath – the fact it wasn’t used in the 2008 GOP presidential primary raises serious issues. The party did use one in 2000, but the wording of the oath was different. So this is A CHANGE IN THE MIDDLE OF THE GAME ENDORSED BY MR. BOLLING WHO SAYS HE IS THE GUY AGAINST SUCH THINGS!

    It is possible the DOJ pre-clearance of such specific wording might be interpreted as authority to use it at any time in the future. That’s a tricky legal question above my pay grade.

    However, even if the pre-clearance of the statute is considered the authority to enact at any time the specific working of the oath contained in the statute, there is the question of whether the SBE approval was given in accordance with 24.2-545. If the approval process differed from the one in the statute, then clearly there can be no “free pass” from the VRA.

    The statute seems to say that the SBE has to approve such a “loyalty” oath no later than 90 days before the date of the primary. Their approval was made last December 28, which is less than 90 days from the date of the primary. However, the AG’s office – legal advisor to the SBE – and the GOP are saying the 90 day time limit only applies to the date the GOP formally requested the SBE to approve the use of the  “loyalty” oath at the polls. They read the statute as allowing the SBE to approve the request any date prior to the election.

    Thus, even if the DOJ pre-cleared the use of the specific “loyalty” oath in the statute at any time in the future, this free pass depends upon their view of whether the 90-day time period also applies to SBE action.

    The interpretation of the AG’s office and the GOP – and of course the SBE – that the 90-day time bar only applies to the formal request for a “loyalty” oath – as opposed to the formal approval of it’s use by the SBE – is open to serious question. I have had several top lawyers read the language and they disagree with the AG and GOP’s view. Here is the relevant language of 24.2-545

    If the party has determined that it will hold a presidential primary, each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party, as defined in § 24.2-101, subject to requirements determined by the political party for participation in its presidential primary. The requirements may include, but shall not be limited to, the signing of a pledge by the voter of his intention to support the party’s candidate when offering to vote in the primary. The requirements applicable to a party’s primary shall be determined at least 90 days prior to the primary date and certified to, and approved by, the State Board.

    By the AG/GOP/SBE interpretation, the SBE could approve the “loyalty” oath two weeks before the primary, they say the 90-day time bar only applies to the GOP deciding to use such an oath, not the action by the SBE to approve it.  This makes no practical, not to mention, legal sense, under any of the normative rules we use to insure fair, transparent elections since it would allow the SBE to approve it say 2 weeks before the primary.

    Accordingly: a Voting Rights Act review of the “loyalty” oath as contemplated by Reagan-Bush-Bush seems in order to determine the meaning of 24.2-545 as it had been approved under the VRA.

    CONCLUSION: LG Bolling is the one supporting, indeed demanding, that the rules be changed in the middle of the game to favor his candidate for President.

    I get that as a matter of politics. But as a matter of law, the standard isn’t loyalty to a candidate but to the laws of the commonwealth and the country.

    As I say: Given the facts he and others in the GOP have presented to the public, there is no way for the public to know, one way or the other, as to whether the Reagan-Bush-Bush requirements of the VRA have been followed.

    Based on the best available evidence, Mr. Bolling is advocating – as Reagan-Bush-Bush would point out – changing the rules in the middle of the game.

    Mr. Bolling says that’s not true.

    When do the people get to know the truth?