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.
