Uncertainty About Virginia U.S. House Districts Injures Minor Party and Independent Candidate Statewide Petitioning

The U.S. House district boundaries for Virginia are not yet determined. Because Virginia has an unusual set of ballot access laws for petitioning for statewide office, this uncertainty is making it impossible for such petitions to begin to circulate.

Virginia independent and minor party presidential petitions must include a list of presidential elector candidates. Each elector candidate must live in a separate U.S. House district, and each district must be represented on the slate.

All statewide petitions in Virginia have a congressional district distribution requirement. President, U.S. Senator, and gubernatorial petitions (whether for the primary or the general election) all need at least 200 signatures from each U.S. House district.

The final peculiarity of Virginia law is that although groups circulating an independent candidate petition, or the petition of an unqualified minor party, can use substitution, substitution doesn’t apply to presidential elector candidates. “Substitution” is the ability of a group’s named petition candidate to withdraw and be replaced by someone else. Virginia allows substitution generally, because in 1989 a U.S. District Court ruled in El-Amin v State Board of Elections, 721 F Supp 770, that the state must allow it. Unfortunately, when the legislature amended the laws to permit substitution, it forgot to include presidential elector candidates.

Presidential substitution is covered in sec. 24.2-543. Substitution for Congress and state office is covered in 24.2-540. But when these laws are read literally, neither law covers the office of presidential elector.

The sad result of all these characteristics is that general election presidential petitions cannot circulate at this time, because no one knows what the district boundaries will be. Petitions for other statewide office can circulate, although with the possibility that the distribution requirement may not be satisfied, depending on what boundaries are eventually approved. But it is impossible to even get started on the presidential petition, because the petition’s list of presidential electors (requiring one living in each district) cannot be altered.

The reason the districts are uncertain is that on October 7, 2014, a 3-judge court invalidated the old districts. The state appealed to the U.S. Supreme Court, which on March 30, 2015, told the U.S. District Court to hear the case again. The District Court again invalidated the districts on June 5, 2015. The state then appealed to the U.S. Supreme Court again, which is considering the case. Wittman v Personhuballah, 14-1504. The state’s brief was filed on December 28, 2015. The other side’s brief hasn’t even been filed yet, and then there will be a third brief, from the state. So the uncertainty is likely to last several more months. Activists in Virginia ought to ask the legislature to quickly pass a bill, adding the ability to substitute for presidential elector candidates, at the very least, in the interest of fairness.

The U.S. District Court issued its own redistricting plan on January 7, 2016, changing the boundaries of districts 1, 2, 3, 4, and 7. But no one knows what the U.S. Supreme Court thinks about the plan, so it can’t be relied on.


Uncertainty About Virginia U.S. House Districts Injures Minor Party and Independent Candidate Statewide Petitioning — 8 Comments

  1. The top D/R oligarchs are trying to get PERMANENT control of the gerrymander USA Congress via especially rigged districts in all States having 2 or more USA Rep seats.

    The SCOTUS hacks are part of the nonstop minority rule gerrymander systems in the USA — i.e. HACK Prezs appointing the SCOTUS hacks via the gerrymander USA Senate hacks.

    The STUPIDITY of the media about minority rule gerrymander math is now worse than ever — the 3 USA gerrymander systems and the gerrymander systems in ALL 50 States.
    P.R. and nonpartisan App.V.

  2. In the sentence of 24.2-543 that now says, “In the event of the death or withdrawal of a candidate for President or Vice-President qualified to appear on the ballot by party name, that party may substitute the name of a different candidate…”, add a the words, “or presidential elector” following the word “Vice-President.”

  3. Birthers in their NY state party enrollment lock boxes are shocked shocked that their state elections boards are funding GOP RNC CINC POTUS primary elections with obvious unconstitutionally ineligible natural born citizen candidates Cruz Rubio Santorum et al

  4. The intervening defendants (Virginia Republican congressmen) had asked for a stay on creation of a remedial plan, since the SCOTUS had already agreed to hear the liability case (which was a split 2:1 decision). There is also a similar case regarding the Virginia legislature, which was decided in the opposite direction by a different 3-judge panel in the same federal district court, on a 1:2 decision. While the facts of the two cases are not identical, I would think the SCOTUS would want to review the two cases, to ensure that the two panels were interpreting the constitution consistently.

    The district court in the congressional case went ahead with the remedial proceedings, even knowing that the SCOTUS had accepted the appeal on underlying liability.

    The district court also adopted a quite radical remedy, shuffling 1.1 million people around, going way beyond the remedy proposed by the actual plaintiffs in the case. Even if the SCOTUS accepts the liability finding, they could reject the remedy.

    In their opinion, the district court said that a second switch in plans would be no problem, since petitioners could concentrate their effort on the area that is common to a district in both versions. They seemed to be clueless that the boundaries might have an effect on who might run.

    When the Virginia legislature met to craft a remedial plan, the Democratic senators and one retiring Republican voted to adjourn. This produced a 20:20 tie, which was broken by the Democratic Lieutenant Governor in favor of adjournment. A cover story was then floated that this over some dispute about a Supreme Court appointment.

    The governor of Virginia is Terry McAuliffe, the former head of the DNC, and quite active in redistricting matters. I would expect that he would veto any legislation that might recognize that there was any problem.

    Injured minor parties might be better off intervening in the federal case. The judges would have been totally unaware of any effect on presidential elections.

  5. Thanks for all that interesting detail, Jim.

    The minor parties might be better off with their own lawsuit, since the issues are different. Probably if the lawsuit were filed, the state would give in, given the El-Amin precedent.

    It seems possible to me that the Virginia legislature may fix the problem early this year.

  6. 1/2 of less of the votes in 1/2 of the rigged pack/crack gerrymander districts = 1/4 or less CONTROL.

    Too many math MORONS to count — esp. in SCOTUS — even worse lawyer and law school prof math MORONS.

  7. The legislature will not be inclined to assist in imposing the new map.

    The district has been in existence since 1999, and the plaintiffs did not sue until 21 months after enactment. There is no reason to not wait for the SCOTUS to hear the case.

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