On January 17, the 6th circuit heard arguments in Kurita v The State Primary Board of the Tennessee Democratic Party, the case over whether a political party can set aside the primary election results, and declare someone the nominee even though that person did not place first in the primary. In 2008, the party had refused to recognize the primary election victory of Rosalind Kurita, who won the primary for State Senate by 19 votes. The party charged that many voters who were loyal to the Republican Party had voted in the Democratic primary, and therefore the primary lacked validity. Also, the party was already hostile to Senator Kurita, because even though she had been elected as a Democrat, and continued to hold herself out as a Democrat, she had voted to organize the State Senate under Republican leadership.

The state took the position that the narrowness of the primary is irrelevant, and that it is also not relevant that some voters who were really not loyal to the Democratic Party participated in the primary. One judge asked if the party could have acted as it did if the margin had been 1,900 votes instead of 19 votes, and the response from the state was that this would have made no difference. The state also took the position that the 6th circuit does not have authority to order a new primary election, because the Tennessee Constitution forbids special legislative elections if less than a year remains in the term.

On January 25, Virginia’s Attorney General asked the State Supreme Court to reverse the lower court ruling of January 24 which found that voters do have standing to challenge the legislature’s power to pass a U.S. House redistricting bill this year. The Virginia Constitution says the legislature must pass redistricting for U.S. House in the odd year following the census. The legislature did not pass such a bill in 2011, but it has passed a bill in 2012. See this story.

On January 25, Georgia Secretary of State informed President Obama’s attorney that the Secretary of State will not interfere with the planned January 26 hearing on a challenge to the President’s ballot position on the March 6 Democratic presidential primary ballot. The President’s attorney had written a letter to Brian P. Kemp, Secretary of State of Georgia, and a Republican.

The attorney’s letter said, in part, “This is to advise you of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements…the Administrative Law judge has insisted on agreeing to a day of hearings, and on the full participation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff’s counsel for the personal appearance of the President at the hearing, now scheduled for January 26.” To read the entire letter, see here.

Secretary of State Kemp replied, “I received your letter expressing your concerns with the manner in which the Office of State Administrative Hearings has handled the candidate challenges involving your client and advising me that you and your client will ‘suspend’ participation in the administrative proceeding. While I regret that you do not feel that the proceedings are appropriate, my referral of this matter to an administrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. sec. 21-2-5.

“As you are aware, OSAH Rule 616-1-2-17 cited in your letter only applies to parties to a hearing. As the referring agency, the Secretary of State’s Office is not a party to the candidate challenge hearings scheduled for tomorrow. To the extent a request to withdraw the case referral is procedurally available, I do not believe such a request would be judicious given the hearing is set for tomorrow morning.

“In following the procedures set forth in the Georgia Election Code, I expect the administrative law judge to report his findings to me after his full consideration of the evidence and law. Upon receipt of the report, I will fully and fairly review the entire record and initial decision of the administrative law judge. Anything you and your client place in the record in response to the challenge will be beneficial to my review of the initial decision; however, if you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril. I certainly appreciate you contacting me about your concern, and thank you for your attention to this matter. Sincerely, Brian P. Kemp.” Thanks to Bill Van Allen for the documents. According to this story in the Atlanta Journal Constitution, the President’s attorney will not attend.