Virginia State Ballot Requirements and the Republican Party of Virginia

Intellectual Property of Elect-Logic Consulting, LLC

Author: Cameron Sasnett Date: January 8, 2012

STATEMENT FROM AUTHOR

Elect-Logic is dedicated to ensuring the integrity of the process by which candidates gain access to the political system and to ensure that voters are provided with solutions to any electoral issue that may impose upon their ability to express their will. We have taken the time to weigh the issues presented in the recent litigation regarding Republican Presidential Candidates' access to the Primary Ballots.

While we ultimately stand on the side of the law as it written, we believe that the process and people involved in the certification for Democratic and Republican Presidential candidates allows the parties entirely too much authority and ultimately leeway to conduct primaries that best serve the parties and not the voters.

CAMERON SASNETT FOUNDER, ELECT-LOGIC

ANALYSIS
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The right of Americans to vote within the United States has been and continues to be contentious. Eligibility is determined by both Federal and state law. Each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own jurisdiction. The Constitution, leaves the determination of voting qualifications to the individual states. By extension this has carried over to ballot access rules, which also remain within the purview of the state. Ballot access rules regulate the conditions under which a candidate or political party is either entitled to stand for election or to appear on voters' ballots. The criteria to stand as a candidate depends on the individual legal system, however they may include the age of a candidate, citizenship, endorsement by a political party and profession. Legal restrictions, such as those based around competence or moral aptitude, can be used in a discriminatory manner. Restrictive and discriminatory ballot access rules can impact the civil rights of candidates, political parties and voters. Currently the state law is written in a way that allows for the two parties in Virginia to determine the manner and means by which the Presidential Primary shall be conducted. Further, the code also allows for the parties to certify the candidates. With defining criteria and implementation specifics left at party discretion, it is absolutely clear that the parties and the officers designated therein are ultimately responsible for this process. (VA 24.2-545 A; 24.2-508) Any non-presidential candidate in Virginia, whether state or local, who chooses to run, has all of their required petition signatures validated by local non-partisan government employees until the candidate reaches the correct number.(VA 24.2-114-17) These official Registrars are very well-trained in the process and software required to facilitate these checks. Additionally, every Registrar, Assistant Registrar and Deputy Registrar swears an oath to the Constitution of Virginia whereas party officials are not required to take this oath. This can lead to a situation that personal opinions and the lack of proper procedural education may lead to disputes in the validity of the process. The Republican Party of Virginia had publicly announced that if any candidate was to submit 15,000 signatures that they would not check any of those signatures and immediately proceed with certifying the candidate for the ballot. This practice is dangerous. If someone collecting signatures had purposely committed a fraudulent act by signing another persons name, collecting unregistered signatures and/or simply "falsifying any other information to meet the 15,000 signature-threshold, then serious doubt should exist in terms of how seriously the Republican Party of Virginia takes the validation process. Also, in terms of the varying levels of scrutiny shown between this election and those in the past, the Republican Party may have found themselves in a system of reliance with the standards displayed in this election. It has been noted, by party officials, that the signatures were not scrutinized in years past the way that they were for the 2012 March Primary.

Pat Mullins' request to have himself removed from recent litigation involving the Republican Presidential Primary is astonishing and unprecedented. The powers and responsibilities designated to him by the laws of the Commonwealth, as well as his own party, have placed him at the helm of the process to certify any Republican candidate seeking office in Virginia. (VA 24.2-545 D) To legally attempt to deflect this responsibility, particularly in light of current litigation, shows that Mr. Mullins does not fully appreciate the depth of his vested powers. While the Republican Party of Virginia should be applauded for committing to enforce the legal standard this time, it is an arbitrary double standard for those same officials to chastise dissatisfied candidates by saying that "they should have known the rules." Its very difficult for a campaign to follow the rules and ensure all laws are followed when someone finally enforcing a standard that so many had not in the past is particularly stringent. While it is not excusable for campaigns to fail to adhere to campaign and ballot laws, when precedent has followed one course of action, it is difficult for a campaign to adapt midway. Candidates often scramble to find ballot access signatures, which can be attributed to the fact that Super Tuesday is such a unique primary day. As the first primary in March, it is difficult to weigh the benefits of investing in the most stringent ballot access program without solid polling numbers to know if the candidates will make it to the Virginia Primary. The organization and time needed to collect over 10,000 signatures per candidate is a significant investment for any campaign, but more so those with little on the ground organization or support due to residency issues. Candidates have to seriously evaluate their viability through Super Tuesday and determine if qualification on the nations most stringent ballot would be worth the investment, or should they simply skip Virginia and focus those resources on efforts that would yield easier and perhaps greater results. Another issue that makes Virginia less than desirable for candidates is that the date of the Primary was pushed back a month from previous schedules. (VA 24.2-515) This weakens Virginia in the leveraging process for Presidential campaigns because the candidates have less of a return on investment than was before. States are tremendously more enticing to candidates in March if they hold more delegate value. Virginia is fourth in allotment of delegates of the Super Tuesday states with 49. Virginia ranks behind Georgia(76), Ohio(66) and Tennessee(58). This makes at least three more states significantly more powerful than Virginia to candidates and their campaigns, on just one of many primary voting days.

CONCLUSIONS When we analyze all of this data together with the current primary race we can come to a few conclusions:

1. Virginia is positioned to hold legitimate political clout in Presidential races. However, current laws and practices truly exclude Virginians from the being recognized as a substantial component in the process.

2. The location of Virginia in the Presidential Primary calendar combined with the current onerous ballot access laws put Virginia at a severe disadvantage to candidates by not making it enticing for them to campaign in Virginia.

3. The incredible amount of control that the two state parties have in designating aspects of the process together with the current laws have left Virginians with almost no control in the candidate selection process. 4. Virginia is a general election "battle ground state." It has been so noted that Virginia is made up of many voters whom typically choose their candidate near the last minute and recognize themselves as independents. It is highly important to ensure that they have access to just as many options in the primary as they will in the general election. 5. The ultimate fiscal liability of the primaries in Virginia rests on the tax-payers. Parties have a tremendous amount of control over funds apportioned by the state.

Virginia is set to show the rest of the country and possibly the world, that legislative intent to protect the party system fails the voters. Virginians are historically patriotic people and while our founders designed our government to resist change, it also embraces it. Virginians are on the precipice of taking back their ability to choose. Legally, the current case of Rick Perry vs. State Board of Elections (Case 3:11-cv-00856-JAG) could yet prove that the constraints of the process provide a significant disadvantage and technically infringe upon a candidates First Amendment Rights. If the court determines that
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there does not exist an infringement then the State Legislature should take up the issue immediately.

VIRGINIA STATE CODE 24.2-545. Presidential primary. A. The duly constituted authorities of the state political party shall have the right to determine the method by which the state party will select its delegates to the national convention to choose the party's nominees for President and Vice President of the United States including a presidential primary or another method determined by the party. The state chairman shall notify the State Board of the party's determination at least 90 days before the primary date. 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. 24.2-508. Powers of political parties in general. Each political party shall have the power to (i) make its own rules and regulations, (ii) call conventions to proclaim a platform, ratify a nomination, or for any other purpose, (iii) provide for the nomination of its candidates, including the nomination of its candidates for office in case of any vacancy, (iv) provide for the nomination and election of its state, county, city, and district committees, and (v) perform all other functions inherent in political party organizations. 24.2-545. Presidential primary. D. The State Board shall certify the results of the presidential primary to the state chairman. If the party has determined that its delegates and alternates will be selected pursuant to the primary, the slate of delegates and alternates of the candidate receiving the most votes in the primary shall be deemed elected by the state party unless the party has determined another method for allocation of delegates and alternates. If the party has determined to use another method for selecting delegates and alternates, those delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote. 24.2-114. Duties and powers of general registrar. 17. At the request of the county or city chairman of any political party nominating a candidate for the General Assembly, constitutional office, or local office by a method other than a primary,
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review any petition required by the party in its nomination process to determine whether those signing the petition are registered voters with active status. 24.2-515. Presidential election year primaries. Primaries for the nomination of candidates for offices to be voted on at the general election date in November shall be held on the second Tuesday in June next preceding such election, except that beginning with the year 2012 and in presidential election years thereafter, primaries to choose among presidential candidates may be held as provided in Article 7 ( 24.2-544 et seq.). Primaries for the nomination of candidates for offices to be voted on at the general election date in May shall be held on the first Tuesday in March next preceding such election.