Richard Winger over at Ballot Access News has an EXTREMELY interesting post (link via here) on the mess that the Virginia Republican party has found itself in over… access to the ballot in Virginia. For those coming in late, background here and here: the very short version is that the VA GOP only certified Mitt Romney and Ron Paul for its primary ballot. Rick Perry and Newt Gingrich both had too many signatures tossed; Jon Huntsman, Rick Santorum, and Michele Bachmann didn’t even try. Of the seven candidates, one (Romney) had more than enough signatures (15K) to bypass the verification process entirely. All of this has caused a lot of agitation among Republicans following the primary process, of course; and not just from people who disapprove of what the VA GOP has done. There has been a good deal of defending of the outcome; and one argument heavily used in this defense has been that the campaigns all knew the rules and that previous Republican campaigns were able to get on the ballot, so clearly a competent current Republican campaign should have done so.

One small problem with that: as Winger argues, the rules were allegedly drastically changed.  In November of this year.

Winger’s article is too long to reproduce here, so I’ll summarize it: prior to the 2012 elections it was Republican party policy in Virginia to simply deem any candidate that brought in ten thousand raw signatures as having met the primary ballot requirements under Virginian state election law. So, for example, Alan Keyes (a popular negative example for people making the ‘any competent campaign’ argument) apparently did not actually have his petitions checked in 2000 and 2008; absent going back and looking at the paperwork (assuming that it even still exists), there’s no way to tell whether he would have survived the scrutiny of 2012. And that’s true of every other candidate who has appeared on the primary ballot in Virginia. None of them qualify for an apples-to-apples comparison – and this remains true no matter how many signatures were collected. If you know that your signatures will not be checked if you get above 10K, you are simply operating in a fundamentally different environment than one where you know that your signatures will be checked.

So what happened? Osborne v. Boyles. On October 24th independent state delegate candidate Michael Osborne filed suit against the Republican party of Virginia (specifically, Fifth District GOP Chairman Brandon Boyles) because of this policy: as the article notes, “the law simply requires that party-affiliated candidates present their petitions to the local party chairman – in this case Boyles – who is responsible for reviewing the petition signatures on their own. It does not dictate how thorough this review must be or give state officials any power to challenge it.” The case is still pending – interestingly, the election that this lawsuit was ostensibly addressing has come and gone – but according to Winger the VA GOP decided in response to bump up from 10K to 15K the threshold for simply deeming the requirements as being met. The complications of it being the day after Christmas makes final confirmation of all of this difficult, but Osborne v. Boyles is an actual case and Richard Winger is one of the go-to guys on the arcane subject of ballot access: what I can check out about this story I have checked out.

As for the implications… well, I think that John Fund’s general comment is correct: this is going to go to the courts. John was not discussing this specific wrinkle, but his larger point that Virginia’s ballot access policies have systemic problems gets a big boost when it turns out that the state party can effectively increase by fifty percent the practical threshold for ballot access – in a day, and in the middle of an existing campaign. The VA GOP still retains ultimate control over who gets on the ballot, of course. But then, they always have – and under the current system they could in fact brazen it out and certify Gingrich and Perry anyway. Of course, that would probably mean another lawsuit anyway; but then, there really isn’t a path out of here that doesn’t involve lawsuits.

But that’s a matter for the courts and the party leadership. On the activist level; as noted above, there has been a certain argument used to defend the VA GOP. It’s an argument that accuses two Presidential campaigns of being ignorant of conditions on the ground… and it turns out that the people using that argument may themselves be guilty of being ignorant of conditions on the ground. If it is true that the Republican party of Virginia decided in November of 2011 to increase the threshold for automatic certification from 10K to 15K, then it is reasonable to suggest that this was a change that unfairly rewarded candidates who had previously run for President in Virginia. Even if you dispute that, if this story checks out then it is still completely unreasonable to compare the Gingrich/Perry campaigns to any historical Presidential campaign in Virginia: if this was 2008 or 2000, they’d both be on the ballot themselves and the subject wouldn’t have even come up. And anyone who still tries to use that argument needs to understand that doing so simply makes them look foolish, instead of the Presidential campaigns that they’re pretty much trying to assault. Put another way… I know that this statement will grate on some people, but here goes: there are some defenders of the VA GOP decision out there who need to start apologizing for their, ah, over-enthusiasm. Whether or not they think that it’s fair, or whether anybody’s apologizing to them, or really anything else.

Because… karma. It’s what’s for dinner.

Moe Lane

PS: Let me take this time to repeat my earlier recommendation to the Romney campaign that they request that the VA GOP check their signatures, too. The deadline for certification is tomorrow; and even as it stands now it is unlikely that the VA GOP will certify anyone besides Romney or Paul. If the Romney campaign wants to have any distance from the VA GOP at all on this issue, it is running out of time to ensure that.

PPS: Some of my colleagues feel that the real, underlying problem here is that the Commonwealth of Virginia should have changed its election laws to reflect the  (valid, in my opinion) issues brought up in the original Osborne v. Boyles lawsuit.  I actually agree with that; there is something definitely odd about having rigorous restrictions on a party candidate’s access to the ballot that are enforced by the parties themselves.  But the laws weren’t changed; the internal rules were, and on short notice.  And I expect that there’s going to be additional, equally valid lawsuits over that.