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Why It’s Time to Change Virginia’s Unreasonable Ballot Access Law

Today, Thursday, December 22, 2011, is the ballot access deadline for the 2012 Virginia Republican presidential primary.  It also marks the most significant organizational challenge for the presidential campaigns since the Ames Straw Poll on August 13—a labor-intensive task so expensive and time-consuming that at least one and possibly more campaigns will not even attempt it this year.  And, the very real possibility exists that one or more candidates who made a run at it will come up short and be kept off the Virginia primary ballot as a result.

Virginia’s statutory ballot access requirement is, quite simply, one of if not the most daunting in the country:  A minimum of 10,000 petition signatures collected statewide, including at least 400 from each of its 11 congressional districts.  That’s hard enough.  But then there are the additional restrictions:  The petition circulators must be registered or eligible to vote in Virginia.  The signatures must be gathered using the State Board of Elections’ official form, a two-page document which must be reproduced as double-sided.  (Single-sided stapled forms are not accepted.)  Signatures must be collected on forms that are specific to each city, county and congressional district.  Only “qualified” voters may sign a petition.  And every single petition form must be sworn and notarized.

Want a sense of how next-to-impossible this is?  I know top-flight Virginia political consultants who turned down lucrative petition project contracts from presidential campaigns because they did not think it could be done.

And then there’s the Republican Party of Virginia, which is tasked by law with the responsibility of certifying which candidates have qualified for primary ballot access.  RPV has effectively raised the statutory requirement of 10,000/400 by a factor of 50% this year by offering this safe harbor:  The Party first will conduct a facial review of all petitions, and candidates who submit at least 15,000 signatures and 600 from each congressional district will be presumed to have met the statutory 10,000/400 requirement.  Candidates who submit 14,999 or fewer, however, will undergo signature-by-signature scrutiny of his or her petitions—something no statewide candidate in recent memory ever has had to endure.*

For many years, the Virginia GOP generally selected its nominees in conventions.  But the Morse v. Republican Party of Virginia litigation, which challenged RPV’s mandatory convention registration fees as poll taxes, caused the Party temporarily to abandon conventions in favor of primaries.

The first statewide petition drive post Morse was in the 1996 Republican U.S. Senate primary.  Then came the 1997 primaries for Governor, Lieutenant Governor and Attorney General, and in 2000, the Republican presidential and U.S. Senate primaries.

Each successive petition drive has gotten harder and harder as volunteers have grown more and more tired of the arduous, tedious work it takes to gather thousands upon thousands of signatures in ever more frequent petition drives.  The drives have gotten more expensive, too, as campaigns have resorted to paying volunteers to incent their efforts.  What should be a test of a campaign’s organization and grassroots has become a drain on them—exhausting volunteers and siphoning away money better spent contacting voters, delivering messages, identifying supporters and driving turnout, all important objectives that petition drives have proven worthless at advancing.

In 2008, two presidential candidates very nearly failed to meet the minimum requirement of 400 signatures from the Third Congressional District and almost missed the ballot as a result.  Which brings us to this year, when it is probable that at least one and possibly more of the major GOP candidates will fail to qualify for the Virginia ballot.

This is especially unfortunate because this year, for the first time in decades, the GOP nomination likely will not be all-but decided before Virginia’s primary, and thus Virginia’s primary will truly matter.  But due to Virginia’s unreasonable ballot access requirements, all the surviving candidates may not be on the Virginia ballot—which means those candidates wouldn’t campaign here, and Virginia’s voters would have fewer choices.  Even as Virginia has moved up in the primary calendar, it risks marginalizing itself in the presidential selection process as its petition drives become harder and more expensive, and as more candidates fail to succeed or even to attempt them.

It doesn’t have to be this way.  A few years ago, the Virginia Democrats circulated one petition on behalf of all primary candidates, but the Republican Party of Virginia has not seen fit to follow that sensible step.

Many other states require merely the filing of a few forms and payment of a filing fee—and in the case of South Carolina, a substantial one at that.  No doubt Virginia’s political parties—notoriously cash-hungry due to our anything-goes system of campaign finance in which individuals and corporations can contribute unlimited sums directly to candidates—could use such a financial shot in the arm every four years.

And for grassroots-fueled candidacies, or just for those who enjoy the very American act of circulating a petition, Virginia could maintain petitions as an alternative requirement, or perhaps as part of a hybrid system requiring payment of a filing fee and submission of a substantially fewer number of signatures.  (In fact, Virginia might have to retain a petition drive option in order to obtain Section 5 preclearance of a change to a filing fee-based system.)

Regardless of what happens tomorrow, when Republican Party of Virginia officials begin validating  petitions and signatures, it’s time to do away with the 10,000/400 requirement and move to a more sensible ballot access system.  Campaigns have better things to do with their staff and financial resources.  Volunteers’ time and efforts could be better spent.  And when an unresolved presidential primary rolls into Virginia, voters should be able to choose from the full slate of remaining major candidates—not just those who were able to collect 10,000 petition signatures, including 400 from each congressional district.

*  For all candidates who have met the statutory requirement, I think the Party’s plan to scrutinize some candidates’ signatures and not others, based upon the arbitrary standard of whether the candidates submitted a full 50% more than the statutory requirement, violates the Equal Protection Clause under Bush v. Gore.  It seems to me that all candidates who facially meet the statutory requirement should have their petitions and signatures adjudged according to the same standard.  More on that here if it becomes an issue.

 

Posted in Uncategorized by Chris Ashby
  • http://electionlawblog.org/?p=26947 Problems with Virginia Ballot Access for Republican Presidential Candidates | Election Law Blog

    [...] Mitt Romney may be the only candidates on the Republican party ballot in Virginia.  Chris Ashby says it is time to change Virginia’s “unreasonable ballot access law.” This entry [...]

  • http://www.andfed.com/2011/12/23/gingrich-still-may-not-make-va-ballot/ Gingrich still may not make Va. ballot « AndFed.com – Breaking News | Latest News | Current News

    [...] as Virginia campaign lawyer Chris Ashby notes, those candidates “who submit 14,999 or fewer, however, will undergo signature-by-signature [...]

  • http://www.redstate.com/paulkib/2011/12/24/va-ballot-access-no-way-to-choose-a-president/ VA Ballot Access – No Way to Choose a President | RedState

    [...] Law had a blog post on Thursday warning that this would happen, saying that it is, “…a labor-intensive task so expensive and time-consuming that at [...]

  • http://lisagraas.com/blog/2011/12/24/rick-santorum-iowa-virginia-and-his-path-to-the-white-house/ Rick Santorum, Iowa, Virginia and His Path to the White House « Catholic Bandita

    [...] happened in Virginia? CLICK HERE to read about Virginia’s unreasonable ballot access law. Virginia’s statutory ballot access requirement is, quite simply, one of if not the most [...]

  • http://www.thepinkflamingoblog.com/2011/12/24/something-nasty-in-virginia/ Something Nasty in Virginia | The Pink Flamingo

    [...] “…Want a sense of how next-to-impossible this is?  I know top-flight Virginia political consultants who turned down lucrative petition project contracts from presidential campaigns because they did not think it could be done….” [...]

  • http://www.varight.com/news/paul-goldman-agrees-with-sanders-legislature-must-act-to-prevent-va-primary-joke-another-similar-view-from-bearing-drift/ PAUL GOLDMAN AGREES with SANDERS – LEGISLATURE MUST ACT TO PREVENT VA PRIMARY JOKE! ANOTHER SIMILAR VIEW FROM BEARING DRIFT! | Virginia Right!

    [...] don’t even wait that long.  And finally we have thanks to Rick Sincere and Bearing Drift, a blog view from an election lawyer (which I am not!) that Virginia’s ballot access laws are in deed [...]

  • http://virginiavirtucon.wordpress.com/2011/12/25/is-this-any-way-to-choose-a-presidential-candidate/ Is this any way to choose a Presidential Candidate? « Virginia Virtucon

    [...] Ashby Law Blog explains the whole process, and comments on [...]

  • http://darlene.zoko.in/?p=827 PAUL GOLDMAN AGREES With SANDERS – LEGISLATURE MUST ACT to PREVENT VA PRIMARY JOKE! ANOTHER SIMILAR VIEW FROM BEARING DRIFT! | My Blog

    [...] even wait that long.  And finally we have interjection to Rick Sincere and Bearing Drift, a blog view from an choosing counsel (which we am not!) that Virginia’s list entrance laws are in help [...]

  • http://craigorndorff.com/2011/12/27/as-goes-virginia/ As Goes Virginia….. « On the Western Banks of the Shenandoah

    [...] Chris Ashby (Ashby Law) [...]

  • http://blueridgeforum.com/?p=3819 BlueRidgeForum » VA GOP Primary: Mitt v. Ron — But No Conservatives

    [...] “And when an unresolved presidential primary rolls into Virginia, voters should be able to choose from the full slate of remaining major candidates—not just those who were able to collect 10,000 petition signatures, including 400 from each congressional district.” — Ashby Law [...]

  • http://twitter.com/1389 1389

    Evidently, the Virginia GOP are either controlled by, or are themselves, Washington insiders who are rigging the game to keep out any candidate who both:

    (1) has a chance of winning (unlike Ron Paul);
    and
    (2) is a genuine conservative who excites real people in flyover country, and who provides a legitimate alternative to RINOs, Washington insiders, and other subhuman parasites on the body politic (unlike Mitt Romney and Ron Paul).

    A large part of your Commonwealth is, in fact, a suburb of Mordor on the Potomac. The Constitution makes it difficult to partition any Commonwealth or State, so you’re stuck with them. I don’t envy you.

    Unfortunately, this electoral wrongdoing in Virginia – and wrongdoing it is – has a deleterious effect on the rights of the rest of the citizenry of these United States, who don’t want an evil or crazy pair of presidential candidates foisted on us by having primaries stolen by one method or another, in one State after another.

    Both parties, and the government at all levels, are rapidly losing the already tattered fig leaf of the consent of the governed. When that happens, the result may be a preference cascade. If you don’t know what that is, Google is your friend. We hope to have emigrated by that time.

  • http://1389blog.com/2011/12/30/to-the-commonwealth-of-virginia-why-your-gop-primary-is-a-complete-and-utter-sham/ To the Commonwealth of Virginia: Why Your GOP Primary is a Complete and Utter Sham — 1389 Blog – Counterjihad!

    [...] First, please read this article at Ashby Law Firm:Why It’s Time to Change Virginia’s Unreasonable Ballot Access Law [...]

  • http://blueridgeforum.com/?p=3925 BlueRidgeForum » “Political Class” Keeps the Reins: AG Pivots on Primary Fix

    [...] to two campaigns that developed expertise in surmounting Virginia’s Rube Goldberg rules here and here and navigating the questionable implementation of these rules confronting serious GOP [...]

  • http://gatesofvienna.net/2011/12/virginias-republican-party-sinks-to-the-occasion-again/ Virginia’s Republican Party Sinks to the Occasion…Again | Gates of Vienna

    [...] The equation’s factors are political ‘thinking’ times lawyerese. The result is explained here; it’s the most succinct of the dozens I’ve read[my emphasis below -D]: Virginia’s [...]