How the Virginia GOP's Shortsightedness Led to the Ballot Access Mess

On October 24, 2011, Michael Osborne, an independent legislative candidate, filed a lawsuit against the Virginia Republican Party alleging unfair ballot treatment. Osborne argued that if independent candidate petitions must be checked, so too must the primary petitions be checked for signatures. The Bristol County Circuit Court said the case was filed too close to the November 2011 election in which Obsborne was running to make a judgment. Osborne vowed to pursue the matter after the election.

At issue is this: the statutes provide for different treatments for different types of petitions. Obsborne contended that this was unconstitutional. He demanded that the voter registrar certify his opponent’s, Israel O’Quinn’s signatures.

“It’s the principle of the issue. I want to draw attention to the fact that there is an unlevel playing field, that the deck is stacked in favor of a party candidate as opposed to an independent candidate,” Osborne said. “Nobody knows whether he’s actually qualified to be a candidate or not. That should bother people that we can just wink and nod at the party candidate and say that’s OK.”

Virginia, you will recall, has a very complicated process for determining ballot access, in part thanks to Osborne’s petition. No other state requires more than 5,000 signatures to be put on the presidential primary ballot.

So who is Michael Osborne? On his website, Osborne, a one-time Republican candidate for Congress, wrote a lengthy explanation why he ran as an independent candidate in Virginia’s newly drawn 5th district. He laid out six reasons on his website.

Boiling it down, Osborne contends that the GOP Virginia establishment conspired to block him from running against favored son, Israel O’Quinn. He was removed from email lists, he wasn’t allowed to speak at meetings, and he was passed over, despite expressing interest in running. Assuming his reasons are correct, he might have a point. It seems that virtually everything was done to shore up a safe district for O’Quinn. Osborne, running as an independent, barely won 30% of the vote against Israel O’Quinn, the establishment candidate, in the 2011 election.

Israel O’Quinn served as part of John McCain’s Virginia Grassroots Leadership Team in 2008. Before that he served as Rudy Giuliani’s Southwest VA chair. He worked in the office of Senator George Allen as recently as 2006. He served as Executive Director of the Republican Party of Virginia’s Victory campaign. The Virginia House of Delegates even offered a Joint Resolution on March 6, 2006 praising him for working on numerous campaigns and for being a distinguished alumni of Emory & Henry College from which he graduated in 2002.

Osborne sees something “fishy about the process of politics that re-drew Virginia’s House districts and seemingly positioned his opponent, Republican Israel O’Quinn, for a chance to walk into the job unopposed.” (“Osborne says voters should have a choice,” Bristol Herald Courier (Virginia) September 14, 2011 Wednesday).

In running for office, the ordained minister and religious bookshop owner-turned-politician believes voters should have two choices when casting a ballot.

It’s a pity then that the Virginia ballot for president is now narrowed to only two choices. In response to Osborne’s lawsuit, the Virginia GOP decided in November to bump the threshold up for simply deeming the requirements met, from 10,000 to 15,000 signatures, a 50% increase.

The net effect of this is to reward candidates that have been around for a lot longer. Arguably, Ron Paul and Mitt Romney have both been running for president for the past five years. Rick Perry and Newt Gingrich entered the contest in August and May respectively. Changing the rules on short-notice can only benefit the candidates who have been in the race the longest.

John Fund from the American Spectator explained much of the problem with Virginia’s ballot access policy on Fox News Sunday Fox and Friends. Fund says, “No one could get on the ballot except Mitt Romney who has all the money in the world and Ron Paul who has all the volunteers in the world.” As others have pointed out, if this were 2008 or 2000, both Gingrich and Perry would be on the ballot.

Ironically for Osborne, who sought to change the rules affecting ballot access, the Virginia GOP now has still more power to decide what happens in the primary on March 6.

Should Perry and Gingrich lose access to the primary ballot, the strategy for them could be to force the Virginia Republican Party to certify all of Paul’s and Romney’s signatures as something of a scorched earth policy. It seems doubtful that the Romney and Paul campaigns got the requisite 400 signatures from each of the state’s eleven congressional districts. They might also bring up the fact that you can’t legally hire signature collectors that don’t live in each of those congressional districts and strike down whole groups of collected signatures. Theoretically this means that even if one volunteer lived in an adjacent congressional district and collected a thousand signatures, none of them would count. Striking down all of the signatures and limiting the ballot access for all of the Republican candidates would show what a farce the process has become in the Old Dominion.

Both Gingrich and Perry are also free to sue on the grounds that the Virginia state law wouldn’t allow out-of-state circulators work on their presidential primary petitions.

According to Ballot Access News, there is some precedent:

In 2000, Ralph Nader won injunctive relief against Illinois and West Virginia, after complaining that his petitions might have succeeded without the ban on out-of-state circulators. The Nader decision isn’t reported but was Nader 2000 Primary Committee v Illinois State Board of Elections, northern district, 00-cv-4401. The West Virginia case is reported and is Nader 2000 Primary Committee v Hechler, 112 F Supp 2d 575 (s.d. W.V. 2000).

The US Supreme Court decision from 1999, Buckley v American Constitutional Law Foundation, suggests that bans on out-of-state circulators are unconstitutional, although it didn’t settle that issue completely. It did strike down a Colorado law that said circulators must be registered voters. 525 US 182. Since then, bans on out-of-state circulators have been thrown out in the 6th, 7th, 9th, and 10th circuits, and in lesser courts in certain states not in those particular circuits.

However it turns out, it seems likely it will end up in the courts, where it started. It’s a pity that Virginians can’t seem to resolve this issue like the Southern gentlemen they are.

Update: Rick Perry has filed suit in Virginia to get on the ballot. His suit alleges that the Virginia Board of Elections violated both his First Amendment and Fourteenth Amendment rights when it didn’t allow out of state petitioners to collect petitions.

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