Northern Virginia Lawyer

Paul A. Prados selected as a rising star

2014-06-16T12:45:00.001-04:00

Paul A. Prados has been selected to the 2014 Virginia Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

A Libertarian’s perspective on Ken Cuccinelli

2013-11-03T21:50:00.000-05:00

Every election, philosophical libertarians are faced with a conundrum: should we vote for principle/stay home or vote for the lesser of two evils. Democrats tend to be better on personal liberty issues and Republicans tend to be better on economic liberty issues. Occasionally you find the odd “moderate” that seems to be bad on both sets of issues. At least then we have something to vote against.

I am supporting Ken Cuccinelli for Governor in 2013. I found this decision easy, but my hope is that philosophical libertarians will take a strong look at Cuccinelli.

The source

I worked for Ken Cuccinelli as an attorney for the first four years of my career up until he took office as Attorney General. During that time I was exposed to many aspects of his life: his law career, political actions, and his family. I have had uncountable private conversations with Cuccinelli about his beliefs and actions.

What follows is my take on his beliefs vis-a-vis libertarianism. Unless I attribute the statement directly to him, it is merely my understanding. I will point out a few tidbits that he has not hidden, but are not known in a widespread fashion.

Principled stand on the Second Amendment

Most people know that Ken Cuccinelli is a strong supporter of the Second Amendment. What most people do not know is that support for gun control polled well above 50% in his Senate district, and he knew it was the case. In three elections there he did not waiver in his support of the Second Amendment despite knowing it was a dangerous position to take politically. He was repeatedly elected on principle and stuck to those principles. Libertarians tend to worry that Democrats and Republicans will abandon their libertarian leaning principles upon election. Cuccinelli does not.

Opponent of the overreach of police powers

Whether it is search and seizure, the rights of the accused, or dare I say, the death penalty, Cuccinelli repeatedly falls on the side civil liberties. Cuccinelli was constantly seeking to reduce the ability of localities to spy on citizens, whether it be through warrantless searches or traffic cameras. He supported restoration of voting rights to released felons. He knows all too well that our criminal justice system, despite its general effectiveness and a great many honorable public servants, sometimes falls short of doing justice. Cuccinelli personally took up the cause of the 27 year wrongfully imprisoned Thomas Haynesworth. To the press and to casual observers this appeared to be an aberration. To those of us who knew Cuccinelli, none of this surprised us. This is one of the reasons why Cuccinelli has such a dedicated base of followers.

Defender of the First Amendment

Ken Cuccinelli was lead counsel on a major case seeking to invalidate a law passed by the General Assembly that restricted the free association of political parties. This lawsuit originally entitled Miller v. Brown, successfully invalidated a restriction on how political parties can nominate candidates.

Cuccinelli’s religious beliefs

Cuccinelli takes a lot of flak for his stances on abortion and gay marriage. Cuccinelli believes that life begins at conception and deserves protection in the womb. He does not want to prevent access to contraception, but he does not consider abortion, chemical or surgical, to be “contraception.” This is identical to the position of Ron Paul, a supporter of Cuccinelli. Ron Paul reached his conclusions, in part, from being a practicing obstetrician. Cuccinelli does not take this position lightly.

Cuccinelli is opposed to state sponsored gay marriage. He does not believe in “criminalizing blow jobs.” It would take 500-1000 words, perhaps more, to explain the appeal of the ruling invalidating Virginia’s anti sodomy law. In short, the Attorney General’s brief submitted to the 4th Circuit en banc, and the Supreme Court both fully acknowledged in writing that the law cannot constitutionally ban sexual activity between consenting adults. It is my strong belief that the tide of public opinion and the court system will overtake his positions in the next 5-10 years.

If your feelings on one or both of these issues control your vote, please vote your conscience, just please remember not to let the perfect be the enemy of the good.

The final take

Cuccinelli, in the end, believes that the greatest minority is the individual and the protection of individual liberties is the primary purpose of government. Civil liberties, economic liberties, and constitutional freedom are the baseline for Cuccinelli. In the end, Cuccinelli is the strongest pro-liberty candidate to run statewide in Virginia with a reasonable chance of winning in modern history. He is not the lesser of two evils, he is a good that is worthy of your consideration.

Please get out and vote on Tuesday November 5, and no matter your take on Cuccinelli I look forward to working with all liberty minded individuals in the future.

Gay marriage lawsuits taking back seat in waning days of the campaign

2013-11-02T20:18:00.001-04:00

I predicted that the gay marriage lawsuits in Virginia would have a significant impact on the gubernatorial campaigns in the final days.

Apparently neither Cuccinelli nor McAuliffe appear interested in raising the fact that the AG's office must address the issue in court right at this moment.

The media appears disinterested as well. I acknowledge I was wrong about the effect it would have on the election.

Gay Marriage case on course to affect Virginia's Governor's race

2013-09-06T16:27:00.000-04:00

The first Virginia case after the landmark U.S. v. Windsor ruling on gay marriage has undergone some recent changes that will truly push the matter to the forefront immediately before November's elections.

A New Complaint

Bostic & London have filed an Amended Complaint adding two additional plaintiffs, Carol Schall and Mary Townley. Taking a cue from the ACLU case, they added Janet Rainey, the State Registrar of Vital Records, as a Defendant.

What happened to Cuccinelli?

Gov. McDonnell and AG Cuccinelli have been voluntarily dismissed as Defendants. In these types of cases, you have to figure out the correct state actors to sue. It is not always obvious which actors a court expects to be listed as a defendant. This probably looks like a good thing for Cuccinelli as he is no longer listed as a defendant, it may appear to have less effect on him before the election. But, the Commonwealth has intervened in the case as an "interested party." This means that AG Cuccinelli's office will still be submitting briefs and taking stances before the election. Cuccinelli will have to defend these actions.

The ACLU case does not appear to be moving to the forefront

The ACLU of Virginia finally got around to filing a class action lawsuit challenging Virginia's ban on same-sex marriage. The opposing parties have filed motions to dismiss, and the ACLU has filed a motion to certify all members as a class. This lawsuit was filed in the U.S. District Court for the Western District of Virginia which is reasonably fast, but not known for the haste in which the Eastern District proceeds.

None of the motions have been scheduled for a hearing, and given the tremendous effort it takes to obtain a class action certification, any public fight in this case in the next two months will likely center on this boring procedural step, which will have substantially less political effect on the Governor's race.

With all these delays will this case still have any effect on the election?

This is where the Bostic case gets interesting. The parties submitted an agreed order setting response schedules for the amended complaint and a briefing schedule for summary judgment motions. Summary judgment is the means by which this case will be adjudicated in total. It is the equivalent of a trial in this matter.

Here is the schedule:

Initial summary judgment motions from all parties are due September 30, 2013.

Response briefs are due October 24, 2013.

Final reply briefs are due October 31, 2013.

The election is November 5, 2013

AG Cuccinelli's office, on behalf of the Commonwealth will have to file major briefs 36 days, 12 days, and 5 days before the gubernatorial election. October is the most critical time of the election season. Cuccinelli will be held accountable for every word in these briefs.

This makes it easy to stand by my initial prediction that this will have a substantial negative impact on Cuccinelli.

Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season

2013-07-30T16:27:00.000-04:00

As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage. As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait.

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment. No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor. The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989. London is a navy veteran and a real estate agent. Bostic is a college professor at Old Dominion University. They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down. They apparently have no desire to go and be married under another state's laws. The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination. The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions. As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General. Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge. Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought. Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race.

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage. It is also the most likely matter to have any serious affect on the gubernatorial campaign. Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe. Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach. The firm appears to focus on personal injury and criminal representation.

Battleground Virginia: Gay Marriage to become primary topic in Virginia's gubernatorial election

2013-07-09T17:31:00.000-04:00

The ACLU is about to ensure that gay marriage becomes a major issue in Virginia's 2013 election.

Today, the ACLU of Virginia announced that it would be challenging Virginia's ban on Gay marriage in federal court. This is part of a three pronged effort in Pennsylvania, North Carolina, and Virginia to challenge restrictions on gay marriage. Virginia's ban, known as the Marshall-Newman amendment was passed in 2006 by a 57-43% margin.

The Supreme Court's ruling

On June 26, 2013 the Supreme Court issued two rulings regarding gay marriage. The California Proposition 8 case was dismissed for lack of standing, and was sent back to California for enforcement of the District Court ruling. More importantly, the Defense of Marriage Act decision struck down a key component of DOMA in United States v. Windsor. (My curt analysis of U.S. v. Windsor can be found in my previous article).

These two decisions represented big wins for gay marriage proponents. As of this morning, I expected these victories to have a severe negative affect on liberal turnout in November. Hence, this would benefit Ken Cuccinelli.

What this means for Ken Cuccinelli

This lawsuit will have a huge negative effect for Ken Cuccinelli.

Ken Cuccinelli was one of the patrons of the Marshall-Newman amendment and one of its strongest proponents. Ken Cuccinelli is also the sitting Attorney General for the Commonwealth of Virginia as well as the current Republican candidate for Virginia Governor. In modern history, sitting Attorneys' General in Virginia resign from office during the election year in order to run for Governor. Ken Cuccinelli decided to forego that trend, which has caused some complications. Specifically the Attorney General's office has felt the need to withdraw from two different matters involving (at least tangentially) a company called Star Scientific.

Now, the Attorney General's office will be in the thick of arguing in support of the Marshall-Newman amendment. Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage. Many voters pay little attention to political campaigns until the key campaign season between Labor day and election day. The ACLU lawsuit will probably be prepared for summary judgment or a motion to dismiss to be argued in court in late September or early October. Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage.

Terry McAuliffe does not need to focus on the issue of gay marriage. He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment.

This all comes down to turnout

Virginia has off year statewide elections. The country focuses on Virginia and New Jersey each year after a presidential election. New Jersey's race is widely considered to be uninteresting, leaving Virginia at the forefront of national news.

Cuccinelli's base is motivated. No amount of criticism is going to decrease the turnout of the base.

McAuliffe's base is unmotivated. Although many liberals are motivated by *dislike* of Cuccinelli, few actually care for McAuliffe. This enthusiasm gap is cured if McAuliffe has this social issue to run on.

Independents and right/left leaning voters, in my opinion, either support gay marriage, just do not care, or wish the government would just get out of the business altogether. All three of these demographics will be turned off by the Cuccinelli's media manufactured focus on gay marriage, even if they opposed gay marriage in 2006. This is because they would rather the governor focus on the economy, and jobs.

And then there is money. With no nationwide initiative in the next six months, unlimited campaign contributions in Virginia, and an "anti-gay" crusader on the statewide ballot, gay marriage supporters can voice their concerns with their money.

The bottom line

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue.

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

U.S. v. Windsor in a nutshell

2013-07-09T17:17:00.000-04:00

Below is a curt summary of my thoughts in reading the major decision striking down part of DOMA

1. If you are s/s married in a state that recognizes you as s/s married, the federal government must treat you as married.

2. If you are s/s married, but living in a state that does not recognize s/s marriage, you must sue again to even find out if the federal governmentt will treat you as married.

3. DOMA's prohibition on forcing states to recognize out of state s/s marriage is intact, and left for another day (in my opinion this has always been unconstitutional).

4. The majority opinion hinges on the belief that DOMA was enacted for nefarious reasons. Ed. Note: this is not a valid standard for declaring something unconstitutional. This could have been easily solved a number of ways.

5. The majority opinion is whiny.

6. Scalia's dissent is full of histrionics claiming the majority referred to opponents of s/s marriage as "hateful" and motivated by "malice." These words DO NOT exist in the majority opinion.

7. I predict this will go down as one of the most poorly reasoned and worded opinions in Supreme Court history.

Cuccinelli opens a window to his private side with new ad

2013-05-21T18:16:00.001-04:00

Ken Cuccinelli has gone public in a new television spot with a side of himself that I thought would forever remain private.

In 2006, just a couple of months after the conclusion of the General Assembly session Ken Cuccinelli's close friend MPO Michael Garbarino was gunned down in a one man assault on the Sully District police station in Western Fairfax County.

For nine days, MPO Garbarino remained in intensive care until he succumbed to his wounds. During that time, Ken Cuccinelli visited constantly, and upon passing served at the funeral of his friend. This was time he spent away from politics and his busy law practice. This was time he spent away from his own family. I can tell you he was visibly shaken up and subdued during this time. You can see it in the video.

MPO Garbarino left behind a wife and two daughters as shown in Ken Cuccinelli's new ad. When I met Suzanne Garbarino a year later I was astounded how she was such a rock for her children. In order to honor Mrs. Garbarino's wishes Ken Cuccinelli's involvement was to remain private. He honored those wishes.

This is why this video is important to me. It has been seven years since MPO Garbarino was gunned down in cold blood. Ken Cuccinelli's reaction in this matter is the reaction of a private and sincere individual. That Mrs. Garbarino has allowed these private events to become public is important because it shows the genuine human being Ken Cuccinelli was and continues to be. I am happy that Mrs. Garbarino has allowed this video to be taken.

He may be an extreme caricature in the media, but this is a moment to reinforce that Ken Cuccinelli, for all his perceived faults, is a genuine, honest, and good man. For these reasons alone, he deserves your consideration.

As noted in 2011 there is always more than meets the eye.

Cuccinelli relieved from case, McDonnell still in the crosshairs

2013-05-02T15:56:00.000-04:00

In the case of former chef to the Executive mansion Todd Schneider, AG Cuccinelli's office (as predicted) has been let out of the case.

In response to discovery motions implicating Governor Bob McDonnell, AG Cuccinelli's office moved the court to allow the AG's office to be recused from the case. Schneider's attorneys objected.

At a hearing this afternoon, Judge Margaret Spencer of the Richmond City Circuit Court allowed AG Cuccinelli's office to withdraw from the case.

Norfolk Commonwealth's attorney, Greg Underwood (D) will be handling the prosecution from now on. Commonwealth's Attorney, Paul Ebert was not selected for reasons not apparent from any news source at this time.

The AP reports that the motion to dismiss has been delayed until May 14, 2013. Given the fact the recusal motion has been granted, I strongly predict the motion to dismiss will be denied.

Governor McDonnell still faces the possibility of substantial disclosure of records regarding his family's use of assets at the Governor's mansion. With AG Cuccinelli's office out of the picture, he is likely anxious to find out what will happen next.

Star Scientific and Cuccinelli, a fleeting excitement

2013-04-30T18:42:00.000-04:00

Updated: Motion to recuse AG Cuccinelli's office granted, as predicted.

An Attorney General seeking a governorship, a well-heeled businessman paying a substantial amount toward the Governor's daughter's wedding, a disgruntled former employee being prosecuted for embezzlement, and an off year election make for some juicy legal stories.

The only thing clear is that there will be more chaos before the waters settle down.

Todd Schneider - Executive Chef and current source of angst for Governor McDonnell

Todd Schneider, the former executive chef at the Governor's mansion in Richmond, is being prosecuted for alleged embezzlement of (it appears) food from the executive mansion. As part of his defense he is seeking substantial information about the McDonnell's use of goods from the Executive mansion. The implication is one of outright theft, but nothing beyond bare allegations from the accused has surfaced. Still, the Washington Post broke the story this morning that the FBI have been investigating McDonnell due to alleged improper ties to Jonnie Williams the CEO of Star Scientific, Inc.

Star Scientific, Inc. appears to be a former tobacco company that now produces dietary supplements. It also appears that much of Star Scientific's resources were spent on lawsuits defending patents in the past decade.

What could this possibly have to do with AG Cuccinelli?

Attorney General Cuccinelli has his own ties to Jonnie Williams, having received gifts from Williams. Cuccinelli also, up until recently, owned some stock in Star Scientific. But what does this have to do with Schneider?

Schneider claims, that in 2012, Schneider was interviewed by the FBI, Virginia State Police, and the Virginia AG's office regarding information Schneider had regarding improper connections between Jonnie Williams and the McDonnell family.

The Attorney General's office then, one year later, initiated prosecution against Schneider for embezzlement. It is not clear that there is any direct tie between the conversations in 2012, and the evidence gathered for the embezzlement charges.

Schneider's counsel, seeing an opportunity to defend their client, are now seeking to force the Commonwealth to turn over substantial documentation that appears embarrassing to the McDonnell family.

AG Cuccinelli, seeing what a mess this was becoming sought to be recused from the case due to a conflict of interest that likely existed prior to indicting Schneider.

But wait, I thought the Virginia Attorney General does not handle criminal prosecutions

Okay, I have made a big deal in the past over the limited criminal enforcement powers of the AG's office. The AG in Virginia is essentially a civil attorney's office, although it handles criminal appeals. So, in searching for the local Commonwealth's attorney who I felt should be prosecuting Schneider, I instead found this:

"Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth . . ." Va. Code § 2.2-511. Wow! That looks really bad, did Gov. McDonnell insist on prosecution?!?!?!?!?! Did AG Cuccinelli prosecute without proper authority?!?!?!?!?!

No.

The statute goes on to state "except in cases involving . . . (v) the theft of state property . . ." Us lawyers always have exceptions. Va. Code § 2.2-511.

So the AG has the authority. But that does not mean he had to utilize it. Yes, the AG's office, to handle this cleanly, should have handed the prosecution off earlier. We are where we are, so is the AG seeking to throw the book at Schneider? Is the AG counseling people to hide evidence? Is the AG promising to get Schneider if that's the last thing he'll do? Nope, quite the opposite. The AG's office has filed it's mea culpa seeking to be relieved from the case and appointing the Democrat Commonwealth's Attorney from Prince William County (more on that later) to handle the prosecution. This would include any plea deals or decisions to drop the charges.

So the AG's office probably should have handed this off sooner, but what does it matter?

Not content to simply seek to embarrass Governor McDonnell with some interesting discovery, Schneider's counsel are seeking everything. They have filed an opposition to the motion to recuse, trying to keep the AG's office in the case. I am not really sure why.

Moreover, yesterday Schneider's counsel filed a motion to dismiss on the grounds that the indictment should never have been filed by the AG's office due to the alleged conflict of interest in the AG's office. Essentially their claim is that because AG Cuccinelli can not prosecute the matter fairly, simply by filing the case with an alleged conflict, Schneider should be let off for ALL alleged criminal charges.

I am often asked the following question: "Mr. Prados, do you have any case authority for that position?" Either I'm prepared to hit that matter out of the park, or I'm about to lose a substantive point. The major cases cited by Schneider's counsel do not stand for the proposition that if a prosecutor with a conflict of interest obtains an indictment against a Defendant, that the mere existence of the conflict of interest allows the Defendant to be free from all further prosecution. It would be an absurd result.

In fact, in my opinion, the main Virginia case they cite makes clear that the remedy available to Schneider is to force the AG's office to recuse itself, something the AG's office is doing voluntarily, and that Schneider's counsel has objected to.

So why the remarks about the Commonwealth's attorney for Prince William County?

Paul Ebert is the decades long Commonwealth's attorney for Prince William County. Defense counsel felt it was important to point out that Ebert himself was a poor choice for replacement counsel as Schneider's counsel alleges "Mr. Ebert and his office have engaged in a pattern of intentionally withholding exculpatory information from defendants." If you have some extra time you can read about this history in the Justin Wolfe case here and here.

So what happens next?

The parties are before the Court May 2 for a hearing on the motion to recuse. No matter what happens, a prominent Republican statewide official is going to be dissatisfied with the decision. If the recusal motion is granted, McDonnell will likely risk an extensive probe into his families records. If the recusal motion is denied, the case might be dismissed, but more importantly it puts AG Cuccinelli in an ongoing difficult position.

I believe recusal will be granted and the motion to dismiss will be denied. Contact me directly to discuss all non-monetary wagers.

The only thing guaranteed is that this will get messier before the truth becomes clear.

And my strongly held (albeit biased) belief is that AG Cuccinelli did not do anything wrong.

Virginia Can Engage in Mid-cycle Redistricting

2013-01-23T16:59:00.000-05:00

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution. Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.” VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012. Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011." Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling. The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case. Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging. Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it. Pass the bill in the light of day, and we will talk.

As previously laid out the current senate districts from the Democrats are a travesty.

Debt Ceiling Hypocrisy, and the Right of Congress to Check Government Spending

2013-01-14T16:38:00.000-05:00

Today, President Obama threw out his latest volleys on the debt ceiling, stating in part:

"The debt ceiling is not a question of authorizing more spending. Raising the debt ceiling does not authorize more spending. It simply allows the country to pay for spending that Congress has already committed to." Source: Washington Post.

The Treasury Department has issued a policy document echoing similar sentiment: Debt Limit Myth v. Fact, stating in part:

"The debt limit is the total amount of money that the United States government is authorized to borrow to meet its existing legal obligations . . . Failing to increase the debt limit would have catastrophic economic consequences. It would cause the government to default on its legal obligations – an unprecedented event in American history."

What is this debt limit crisis?

Not being one to accept presumptions of disaster at face value, I have looked into the function of the debt ceiling to determine the legitimacy of the above sweeping claims. Below are my results:

· Having found no indication otherwise I accept that raising the debt ceiling does not directly authorize more spending.

· Paying already incurred debts appears reasonable, the devil is in the details of the definition of "already incurred."

· Raising the debt ceiling not only allows the payment of obligations already incurred, but also allows the payment of obligations already approved by Congress and the President, but not yet spent ["ongoing obligations"]. For example, if the debt ceiling is sufficiently raised then the executive branch could effectively pay for obligations in February, March, April, May, June, etc. of 2013. The Debt Limit: History and Recent Increases p. 4.

· Not raising the debt ceiling does not cause an automatic default on the nation's debts. The Treasury Department has about $42 billion in its bank account from which it continues funding ongoing obligations. Daily Treasury Statement.

· In order to illustrate current spending, the numbers from November 2012 are telling. The federal government spends approximately $11 billion dollars per day, while bringing in an approximately $5 billion per day, resulting in a daily deficit of about $6 billion. "How Much does the Government Spend Every Day?"

· The current debt subject to the limit is $16.393975 trillion, the current debt limit is $16.394 trillion.

Based on the foregoing:

The crisis time for raising the debt limit is now.

Based on the reports form the treasury the debt limit has been maxed out. With $42 billion in funds, and a $6 billion dollar per day deficit, we have about one week until ongoing obligations begin to go unpaid. Nonetheless, there appears to be a jump in the debt subject to limit as of late December as reflected in this chart:

Source January 14, 2012

This has the makings of a manufactured crisis.

Not all ongoing obligations will remain unpaid

As the treasury will continue to bring in revenue, and pay some of its obligations, it is not that every recipient of the government will go unpaid. Instead, the Treasury will have to decide which recipients to pay and which to delay payment until some later deal is reached on the debt limit.

The debt ceiling was created for the express purpose of reigning in government spending

The debt limit also provides Congress with the strings to control the federal purse, allowing Congress to assert its constitutional prerogatives to control spending. The debt limit also imposes a form of fiscal accountability that compels Congress and the President to take visible action to allow further federal borrowing when the federal government spends more than it collects in revenues. The Debt Limit: History and Recent Increases p. 6.

The debt ceiling was not created as a formality. The debt ceiling instead was the result of a compromise during World War I to finance our entry into the war. Congress retained power over setting the debt limit as part of its assertion over its constitutional powers of the purse, of taxation, and the initiation of war. The Debt Limit: History and Recent Increases p. 7. In fact, our current President, while a legislator (in additional to many current Senate Democrats), thought controlling the debt limit was an important tool to curtail executive power.

The ultimate result:

President Obama does not actually believe the fear mongering about default coming from our Treasury Department.

More importantly, President Obama actually meant to say in today's news conference:

"The debt ceiling is not a question of authorizing more spending [on already incurred obligations]. Raising the debt ceiling does not authorize more spending [on already incurred obligations]. It simply allows the country to pay for spending that Congress has already committed to [with the understanding that spending cuts would be forthcoming and the power to rein in spending with the debt limit would remain a tool available to Congress]."

Congress needs to stand their ground and hold out for the cuts promised in August 2011.

Cuccinelli not responsible for investigating vote suppression, yet (headlines failing to match the story)

2012-10-22T20:17:00.000-04:00

A Republican employee of a vendor was caught throwing away voter registrations, and the media lazily and wrongfully blames the Attorney General of Virginia, Ken Cuccinelli for failing to investigate.

A twenty-three year old overzealous dweeb does something truly heinous

On October 18, 2012, Colin Small a 23 year old from Pennsylvania was arrested for throwing away 8 voter registration forms in a dumpster in Rockingham County. It is unknown the reason for throwing away the forms, but the following theories have been suggested:

1. It is part of a broad conspiracy to defraud voters.

2. Colin failed to submit the forms by the deadline, and panicked.

Regardless, everyone seems to agree that Colin worked for a company called Pinpoint that was doing contracting work for the Republican Party of Virginia.

Soliciting voter registration applications and not submitting them, thereby resulting in disenfranchisement of voters, is truly heinous.

Don McEachin shows (once again) how little he knows about the law and Virginia government

In the wake of this mess, Virginia's former Democratic candidate for Attorney General stepped up demanding that Attorney General Cuccinelli investigate the actions of Colin Small. State Senator McEachin should know that AG Cuccinelli does not have the power to initiate an investigation.

McEachin either does not understand or does not care about the law here, and the media has taken off with the story.

What criminal investigative powers does the Attorney General have?

AG Cuccinelli has limited criminal investigative powers as enumerated in the Virginia Constitution and statutes.

Article V § 15 of the Virginia Constitution governs the Attorney General and says nothing about investigative powers of any kind.

Under Va. Code § 2.2-511 the Virginia Attorney General has the power to initiate criminal investigations in limited circumstances, specifically:

"A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in § 24.2-104 . . ."

AG Cuccinelli can investigate electoral crimes as provided in Va. Code § 24.2-104, which states in relevant part:

"When the State Board is of the opinion that the public interest will be served, it may request the Attorney General, or other attorney designated by the Governor for the purpose, to assist the attorney for the Commonwealth of any jurisdiction in which election laws have been violated."

The "State Board" in this instance is the State Board of Elections ["SBE"].

Additionally under Va. Code § 24.2-104:

"The attorney for the Commonwealth or a member of the electoral board of any county or city may make a request, in writing, that the Attorney General appoint a committee to make an immediate investigation of the election practices in that city or county . . ."

In no manner can AG Cuccinelli initiate an investigation himself. The Governor can authorize the investigation under Va. Code § 2.2-511 and the SBE, local Commonwealth's Attorney (Constitutionally elected prosecutor), or local electoral board member can initiate the investigation under Va. Code § 24.2-104.

The SBE has chosen not to investigate.

The left gets this (mostly) wrong

In light of McEachin's statements, the left has mercilessly pushed this story as a failing of AG Cuccinelli, but only in the headlines of articles. When reading into the text of the articles, the accusation against AG Cuccinelli has absolutely no substance.

Headlines are as follows:

Attorney General Refuses To Investigate Man Arrested For Dumping Voter Registration Forms

Virginia AG won’t investigate GOP worker who dumped voter registration forms

Will Votergate Come Back to Haunt Cuccinelli?

Virginia Refuses To Investigate The Dumping Of Voter Registrations, Charged To A Republican Operative

Attorney general won’t investigate worker arrested for dumping voter registrations

AG Cuccinelli seeks responsibility and McEachin doubles down on stupidity

In response to the demands being placed on AG Cuccinelli, he responded to McEachin by requesting that the Attorney General's office be given additional authority to initiate investigations of election law violations without waiting for a request from the SBE.

According to the Washington Post McEachin responded as follows:

"McEachin (D-Richmond) said he has seen the letter [from Cuccinelli] and suggested that political motivations could be the reason Cuccinelli is not pursuing the issue."

I am beginning to hope McEachin runs statewide again.

Power over Virginia property rights can be returned to the citizens in 2012

2012-10-09T17:37:00.000-04:00

Virginia has a rare and important statewide matter on the ballot for November. In addition to the Presidential election, Virginia has a statewide ballot measure where voters will get to decide if private property continues to have meaning or if politically connected developers can seize your property when it is deemed to benefit the public coffers.

An opportunity to permanently curtail the power of both the state and local government in Virginia is upon us.

History

In 2005 the Supreme Court eviscerated the right to keep one's own property when faced with private developers seeking a larger commercial development in the decision of Kelo v. City of New London, 545 U.S. 469 (2005). Lower middle class residents sought to prevent the City of New London Connecticut from taking their property via eminent domain as the owners argued the property was not being taken for "public use" as required by the 5th Amendment.

Our antagonist in this story, Pfizer, Inc. wanted to build a large scale commercial development, and seizing the property of private homeowners was necessary to achieve Pfizer's goal. The City of New London used the power of eminent domain, claiming that the improvement to the property would be a "public use." This public use was couched in terms of increased tax revenue and a wealthier citizenry.

The Supreme Court essentially stated there are no bounds to "public use" as anything that financially benefits a government could now be considered public use.

The uproar among private citizens believing in keeping their small portion of the American dream was heard throughout state legislatures nationwide as laws were passed to placate their worries. Virginia moved quickly and successfully to pass laws restricting eminent domain to actual public uses at the local level.

The Dillon Rule

Virginia is a Dillon rule state. In short the Dillon rule indicates that a local government only has those powers granted to it by the statewide government. If the Virginia General Assembly decides to grant or revoke a power to a locality, the locality must abide by that grant or revocation.

As localities are governed by the Dillon rule, the General Assembly curtailed the power of localities to use eminent domain to take private property for purposes of bolstering a tax base.

Private property was safe, or so it seemed.

What is actually on the ballot in November 2012?

Oddly, finding anything other than innuendo about the property rights amendment in November is exceedingly difficult. The public should understand both the provision on the ballot, and the actual language in the amendment.

The language you will see on the ballot is as follows:

"Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?"

This description is generally accurate, but omits the primary criticism of opponents of the amendment.

The actual text of the Amendment to the Virginia Constitution is as follows:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

We will come back to the text in a moment.

The controversy over the Property Rights Amendment

Those in favor: Those in favor of the Amendment appear to be general private property advocates and broadly speaking, farming interests. They express that we need to enshrine the definition of public use in the Virginia Constitution. Further, proponents appear to desire that compensation for any taking of private property take into consideration lost profits and lost access. These are generally not included in the calculation of compensation. It should be noted that the terms "lost profits" and "lost access" are to be defined by the General Assembly."

Those opposed: Those opposed were local governments through their voluntary collective associations.

Now it seems that the Virginia Association of Counties no longer opposes the Amendment.

The Virginia Municipal League appears to still oppose the Amendment largely due to the "lost profits" issue.

Apparently the Virginia Democrat powers that be ["VADemSCC"] also oppose the property rights amendment due to the cost and complexity of compliance for local governments. Additionally, the VADemSCC also feels the Amendment is merely duplicative.

Why the Amendment is extremely beneficial

Private property rights are not safe, but can be much safer.

1. The Dillon rule allows for grants and revocations of powers. Although today public use is limited for local governments, a future general assembly might slowly water down the definition of public use. The doctrine of entrenchment prevents a current legislature form binding future legislatures. The only solution to prevent the watering down of fundamental rights is this Constitutional Amendment.

2. The General Assembly has been laboring under NO RESTRICTIONS. Although the General Assembly can pass a law restricting the Governor's office from exercising eminent domain at the state level, that law can be undone completely, or exceptions made on a whim by a subsequent General Assembly. Once enshrined in the Virginia Constitution, these restrictions can not be undone on a whim or one simple exception.

3. This Amendment contains the holy grail of eminent domain opponents. Although not discussed in any detail, compensation must be made for "damaged" property, and not just property taken in total. This allows a landowner to be compensated for something referred to as a "regulatory taking." This is an instance in which a regulation reduces the value of property. This is an incredible curb to government power, and significantly bolsters the rights of private landowners of all kinds.

Those opposed neither want to acknowledge nor contest the above three benefits, as the public at large tends to support private property rights in concept.

Virginia residents, please be sure to register and vote to protect your rights in November.

Individual mandate unlikely to be struck down

2012-06-25T00:24:00.000-04:00

In the waning hours before release of the opinion, I am compelled to make my prediction regarding the Supreme Court ruling on Obamacare.

I believe the individual mandate will not be struck down.

Specifically, one or more of the following, on stare decisis grounds or on the grounds that it is a political question, will rule that the government with a rational basis may compel the purchase of a product pursuant to the commerce clause: Scalia, Roberts, or Kennedy.

I believe the states themselves will be considered to not have standing to challenge the individual mandate, and this will likely be a 6-3 or 7-2 decision.

I believe that the states' challenge on Medicaid grounds will be defeated unanimously.

I believe one or more of the following will rule against the challengers to the individual mandate due to either a lack of ripeness, failure to comply with the anti tax injunction act, or complete lack of standing: Ginsburg, Sotomayor, Breyer, Kagan, or Kennedy.

If all of the above happens, then the individual mandate will not be struck down, but will not be deemed constitutional. The fight will be left for another day.

I hope I am incorrect...

Virginia Ballot will only include Ron Paul and Mitt Romney

2012-01-13T17:32:00.000-05:00

In an opinion of nearly unfettered legal accuracy Judge John A. Gibney of the United States District Court for the Eastern District of Virginia ruled today that Rick Perry, Newt Gingrich, Rick Santorum and John Huntsman would not be added to the Virginia Republican primary ballot in 2012. Opinion here.

In an attempt to get this published before the long weekend my summary will be brief.

Laches control the day

Judge Gibney ruled against the excluded candidates based on the equitable doctrine of laches.

"Laches requires the proof of two elements: (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Slip Op. p. 9.

Regarding element one the Judge said "the candidates waited almost half a year before seeking judicial relief . . . [and] displayed an unreasonable and inexcusable lack of diligence." Slip Op. p. 11. Regarding element two the Judge said, "it is too late for the Court to allow [the candidates] to gather more signatures--the absentee ballots must go out now." Slip Op. p. 12.

This is consistent with my warning on January 27, 2012, my analysis of the Perry lawsuit later that day, and my prediction from this morning.

This is the entire case, the rest of the opinion is surplusage for the parties to address on appeal.

Additional points

The Judge ruthlessly mocked my standing argument, although he utilized a hybrid version in the laches analysis.

For those interested look at the major 4th Circuit election law case on the issue of standing quoted in the brief, you may recognize some of the counsel of record. Miller v. Brown, Slip Op. p. 12.

Finally Judge Gibney slams the argument that the 10,000 signature requirement is unconstitutional going so far as to mock Perry's counsel for not having even raised it for the preliminary injunction. I took a more measured approach on January 27, but I still agree with all of Judge Gibney's harsh analysis on this point.

Ultimately this means there will be two candidates on the ballot in March. Only two professional campaigns remain.

Updates to come later...

UPDATE: The 4th Circuit has already denied the emergency appeal. Always good coverage from Richard Winger, here.

Prediction: Perry ballot access lawsuit in Virginia will not result in favorable preliminary injunction

2012-01-13T11:30:00.001-05:00

It is approximately 11:30 AM on Friday January 13, hopefully this prediction gets out before a ruling is made.

Although it appears that Judge Gibney believes that the petitioner residency requirement for signature gatherers in Virginia is unconstitutional (it is an open question in the 4th Circuit), I believe the preliminary injunction to get Perry, and the others on the ballot will be denied.

The main reason is that the relief requested is equitable, and Perry waited too long to bring the suit when he could have done so in the fall.

Prediction brought to you by your northern Virginia "non-domestic equity" practitioner.

Joe Morrissey wants to tax you for choosing plastic over paper

2012-01-10T12:18:00.000-05:00

Desired partly by environmentalists, partly by people who like taxes, partly by the nanny-statists who think the government should intrude on everything in our lives, and partly by those who think that paper is so preferred over plastic that everyone should think like them, the plastic bag tax may be coming to Virginia.

Del. Joe Morissey (D - Highland Springs) (storied past ignored for purposes of this post) is proposing a $.20 tax on all plastic bags "provided to the consumer by retailers in grocery stores, convenience stores, or drug stores." HB 124. In addition to the tax, retailers are incentivized to impose the tax by allowing the retailer to keep a portion of the tax, and by suffering substantial penalties for failing to charge for plastic bags.

The odd result of this is that instead of charging for plastic, most stores in Virginia would likely convert to an all paper bag system. No tax would need to be collected, and consumers would lose their choice among their shopping bag options. Next they will regulate the shape and thickness of paper bags to ensure optimum recyclability and minimum landfill usage.

I am sure the citizens of the Commonwealth of Virginia appreciate the government overreach in controlling our shopping habits.

Not to worry. This is exactly the kind of bill that dies an early death in subcommittee.

"Tea Party Activist" files lawsuit to get Gingrich on the Virginia ballot: Gingrich campaign still contemplating potential legal actions

2011-12-30T11:00:00.002-05:00

On Thursday December 29, 2011 Jonathan Moseley, unconnected with any presidential campaign, filed a lawsuit in an attempt to obtain ballot placement for Newt Gingrich in the Virginia primary.

I have decided against critiquing the details of this lawsuit, but will essentially say there is substantial merit to much of it, but it is ultimately doomed to failure. The major premise is that Newt Gingrich submitted over 11,000 valid signatures when only 10,000 were required.

The major problem as I pointed out yesterday is that Gingrich has already acknowledged that at least 1500 signatures were obtained by fraud, not technical noncompliance, and not failure to state a complete, or legible address. By Gingrich's own admission he did not submit at least 10,000 non-fraudulent signatures.

Setting the merits aside, based on statements in the press release, this is simply an odd manner to pursue litigation.

For example:

"Virginia attorney Jonathon Moseley intends to quickly amend the lawsuit to add additional Republican voters as co-Plaintiffs, encourage the Gingrich campaign to join the lawsuit or file a better one along similar lines, and to refine the legal claims and arguments in the lawsuit to fit this rather unusual situation."

Mr. Moseley encourages a campaign to file a better lawsuit than his, and refine the legal claims - very odd.

"Moseley will be seeking additional Virginia voters to join the lawsuit, legal expertise to help refine the lawsuit and work on the case, and financial contributions."

Join him, provide legal services to refine his legal claims, and give money.

Sigh.

As an aside, the procedural defects are likely enough to avoid a timely ruling in his favor.

Gingrich out of good legal arguments to get on the Virginia ballot

2011-12-29T11:39:00.002-05:00

On Tuesday I outlined the one decent method for obtaining ballot access for Newt Gingrich or Rick Perry in Virginia. Information has come to light, directly from the Gingrich campaign, that a paid signature gatherer committed fraud. This fraud eliminates the possibility of Gingrich utilizing the method I suggested on Tuesday. I had heard rumors of this, but waited for verification before publishing.

That same day Perry chose his route, one I had advised against, but it may be because he never had 10,000 signatures either regardless of the method of collection. In his Complaint filed in the U.S. District Court for Eastern District of Virginia he indicates he submitted over 6000 signatures of qualified voters. When pursuing a courtroom remedy, if he submitted over 10,000 signatures he believed to be valid, he should have indicated as such in the Complaint. The decision to indicate just over 6000 signatures, is an indication he never had close to the necessary 10,000.

With the admission of approximately 1500 signatures gathered by fraud for Newt Gingrich, this means he can not claim he submitted the proper number of signatures, only with validating witness problems.

Gingrich is in as weak a position as Perry now. Joining in Perry's suit is probably a waste of time and money. The only option is a legislative change which is nearly impossible.

Folks will have to vote for Mitt Romney or Ron Paul in the Presidential primary in the Commonwealth of Virginia in 2012.

Perry files lawsuit to get on the VA ballot: is it a waste of time?

2011-12-27T19:02:00.002-05:00

While I whiled away explaining how best to go about getting on the ballot in Virginia, Governor Perry had already hired a Virginia legal team and filed a lawsuit challenging his exclusion from the Virginia ballot. Complaint, here.

For those readers perusing my earlier article you will identify that Perry chose option three which I believe is doomed to failure. This is not because it is constitutionally incorrect, but rather that it is highly unlikely to result in preliminary relief and placement on the 2012 ballot.

Count 2 of the complaint alleges that the sheer number of signatures required, and the number form each Congressional district is so onerous as to be unconstitutional. I have no mercy for Count 2, it will not be successful and is nothing more than an excuse for lack of organization.

An interesting point is that Perry claims to have submitted at least 6,000 valid signatures. If he actually met the threshold, but there were problems with the form, why not just claim he submitted over 10,000 as required. When establishing a case like this, you generally would need to obtain all the necessary signatures, only with out of state petition gatherers so you can maintain standing.

Final point and bonus for readers: There is a blatantly incorrect statement of law in the Complaint. If you read my earlier article you might be able to find it. I will send a prize (of minor value) to the first person to correctly identify the incorrect statement of law.

Update: Perry's Memorandum in support of a preliminary injunction has been filed. Available here. I will leave it to readers to scrutinize the pleading. I put the chances of success at 15:1 due to the open status of the case law on this issue in this Circuit, Perry's lack of sufficient signatures, and failure to file a lawsuit before the December 22 petition deadline.

Provoking a Virginia election law legal battle: How Gingrich and Perry could still get on the Virginia primary ballot

2011-12-27T15:29:00.000-05:00

UPDATE: 12/28/11 ~10:00 AM
Rick Perry jumps into federal court. http://northernvirginialawyer.blogspot.com/2011/12/perry-files-lawsuit-to-get-on-va-ballot.html
National Review links to the article at http://www.nationalreview.com/corner

Update: 12/29/11 ~11:45 AM
I think Gingrich is out of luck. Looks like a Romney-Paul primary is all but guaranteed in Virginia.

Merry Christmas to Mitt Romney and Ron Paul. After submission of signatures to qualify for the Virginia Republican Presidential Primary in 2012, they are the only two candidates who will appear on the ballot.

Newt Gingrich and Rick Perry also submitted the requisite number of signatures, but did not qualify to appear on the ballot according to the Republican Party of Virginia.

After Gingrich learned he would be excluded, he referred to his exclusion as Pearl Harbor, and promised to wage a vigorous write-in campaign.

This has frustrated many Virginia Republicans, who currently view Gingrich as the front runner in our great Commonwealth.

There is still a way for Gingrich and Perry to get on the ballot, but it requires fast action. It can not await the results of back room negotiations.

How did we get here?

Virginia apparently is known for having some of the most onerous ballot access requirements in the country.

Here is what is required generally of primary candidates:

"A candidate for nomination by primary for any office shall be required to file with his declaration of candidacy a petition . . . on a form prescribed by the State Board, signed by the number of qualified voters specified below . . .and listing the residence address of each such voter. Each signature on the petition shall have been witnessed by a person who is himself a qualified voter, or qualified to register to vote, for the office for which he is circulating the petition and whose affidavit to that effect appears on each page of the petition." Va. Code § 24.2-521.

Now what this means is that you have to have a certain number of signatures of qualified voters, and they must be witnessed by a qualified voter who then signs an oath that s/he witnessed the signatures on the petition.

Seems pretty straight forward, the statute then goes on to list the various offices for which the number of signatures are needed: United States Senate, Governor, Lieutenant Governor, or Attorney General, United States House of Representatives, Senate of Virginia, House of Delegates, a constitutional office, membership on the governing body of any county or city, membership on the governing body of any town, and "for any other candidate, 50 signatures." Va. Code § 24.2-521.

Presidential Primary contenders appear to be missing from the list.

Instead Presidential primary qualification and signature gathering is governed under Va. Code § 24.2-545.

Specifically subsection B states in part:

"Any person seeking the nomination of the national political party for the office of President of the United States . . . may file with the State Board petitions signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth, who attest that they intend to participate in the primary of the same political party as the candidate for whom the petitions are filed. Such petitions shall be filed with the State Board by the primary filing deadline. The petitions shall be on a form prescribed by the State Board and shall be sealed in one or more containers to which is attached a written statement giving the name of the presidential candidate and the number of signatures on the petitions contained in the containers." Va. Code § 24.2-545

This is a similar process to that set out in Va. Code § 24.2-521, but clearly has different requirements for filing other than a specification of the number of signatures required.

Where does the state party come in?

Virginia law then hands off the duty of certifying signatures to the state party. That's right, the State Board of Elections does not certify any signatures, and the party has control over that process as described further in Va. Code § 24.2-545(B):

"The State Board shall transmit the material so filed to the state chairman of the party of the candidate immediately after the primary filing deadline. The sealed containers containing the petitions for a candidate may be opened only by the state chairman of the party of the candidate. The state chairman of the party shall, by the deadline set by the State Board, furnish to the State Board the names of all candidates who have satisfied the requirements of this section." Va. Code § 24.2-545(B).

It is the duty of the party to determine who satisfied the signature requirements. The deadline set by the State Board of Elections is December 27, 2011 pursuant to Va. Code § 24.2-527 (as an aside, although the SBE claims authority to set this deadlines pursuant to Va. Code § 24.2-527, the authority appears to be actually derived from Va. Code § 24.2-545).

Did the state party rig this process for Romney or did an independent candidate for state office force the RPVA to scrutinize signatures in an unreasonable manner?

In my not so humble opinion, no on Romney and maybe on the lawsuit.

As indicated by Brian Schoeneman here,

”. . . plenty of other candidates with fewer resources have made it onto the Virginia presidential primary ballot since the rules were loosened in 1999. Here’s a quick list:

2008 – Barack Obama, Dennis Kucinich, Hillary Clinton, Bill Richardson, Joe Biden, John Edwards; Ron Paul, John McCain, Fred Thompson, Mike Huckabee, Rudy Giuliani, Mitt Romney.

2004 – Al Sharpton, John Kerry, Wesley Clark, Howard Dean, Joe Lieberman, John Edwards, Dennis Kucinich, Dick Gephardt, Lyndon Larouche.

2000 – Alan Keyes, Gary Bauer, George W. Bush, John McCain, Steve Forbes."

The daunting task of getting on the ballot under the current law in Virginia has been overcome repeatedly by less influential campaigns. I see no tie to the Romney campaign (and I have been quite critical of Romney in the past).

As indicated here and here, a lawsuit filed in October 2011 by an independent candidate, challenging the RPVA's process of rubber stamping petition signatures is supposedly the cause of greater scrutiny of petition signatures. This might be the case.

RPVA came out with a policy for petition verification which is laid out in some detail here. The problem is I can not find any reference to this policy prior to December 21, 2011, especially the free pass on scrutiny if you submit more than 15,000 signatures. Looking at the metadata of the adobe document detailing the RPVA's policy regarding signature submission, it was created December 21, 2011, the day before the signature submission deadline. This appears to be a last minute change, and the most reasonable explanation is the October 2011 lawsuit.

Gingrich seems the most interested in getting on the ballot, so what are his options?

Despite a quick suggestion that he would run a write-in campaign, it is a non-starter in the Commonwealth. Va. Code § 24.2-529 specifically states, "No write-in shall be permitted on ballots in primary elections." Also under Va. Code § 24.2-644(C), "At all elections except primary elections it shall be lawful for any voter to vote for any person other than the listed candidates for the office by writing or hand printing the person's name on the official ballot." In short - no write-ins in the presidential primary.

Gingrich's second option is to try to work within the RPVA to get them to change their minds. The problem is the RPVA was required to make its decision and transmit the results to the State Board of Elections today. Once the results are transmitted, I do not see a way the SBE can change its procedures without Court intervention.

Gingrich's third option is to try and have the Virginia legislature pass an emergency measure, changing the requirements for the 2012 primary. As indicated here, this would be difficult. I believe it is impossible.

Which leaves us with option four: Litigation!

If Gingrich or Perry want to get on the ballot, they need to sue and sue now

There are numerous junk claims that can be brought: such as the RPVA system of certification is unfair, or was changed at the last minute. These should be avoided.

There are federal constitutional claims that could be brought challenging the need to have a qualified voter gather signatures, or that signatures need to be on witnessed, and certified two sided forms. These should also be avoided, although there is a small amount of merit to some of these claims.

The real lawsuit is based on the statutory construction of Va. Code § 24.2-545. Once again this statute creates an entire system for submitting signatures to qualify to be on the presidential primary ballot. This statute completely rewrites the process laid out in Va. Code § 24.2-521. As such, I believe only Va. Code § 24.2-545 governs the gathering and submission of signatures.

Va. Code § 24.2-545 does not require:

A residence address

That each signature be witnessed

That the witness be a qualified voter

The only specific detail required by Va. Code § 24.2-545 is "The petitions shall be on a form prescribed by the State Board . . ." This is not blanket permission to the SBE to create any requirements on the form it desires. The rigorous petition gathering requirements of Va. Code § 24.2-521 are noticeably absent from Va. Code § 24.2-545.

To qualify to be on the ballot under Va. Code § 24.2-545 the signatures of 10,000 qualified voters, and 400 per congressional district are required. All the superfluous information is not required.

The way to challenge this is in the Circuit Courts of the Commonwealth of Virginia. It must be done on an emergency basis, as relief will be unavailable by late January when absentee ballots must be mailed. Every day of delay increases the chance of a loss in court. Going to court is no guarantee, but it provides the highest probability of success at altering the primary ballot.

The Richmond City Circuit Court is accustomed to this type of political emergency lawsuit. Getting on the ballot is not a public relations issue, it is a legal one.

Gingrich now needs to go pay some lawyers with the money he should have spent on petition gathering.

Great coverage of this issue can be found at two of Virginia's premier conservative blogs:

Bearing drift

Virginia Virtucon

Cuccinelli for governor bumper stickers

2011-12-04T23:33:00.001-05:00

Folks,

I have ordered Cuccinelli for Governor bumper stickers. His campaign staff have all but assured me such bumper stickers will not be available until the spring.

My stickers will be here within a couple of weeks. If you desire a KTC for Gov bumper sticker feel free to email me a name and address at ppradoslaw@ NOSPAMgmail.com, without the nospam.

Once I have them in my possession I'll post a pic. They are an oval that says "don't tread on me" "KTC" "Cuccinelli for VA Governor"

the Constitution matters folks.

Update: In retrospect they are a little nonconformist, but they suited my preference.

Does the former CEO of the National Restaurant Association with ties to Romney campaign know more than he is saying?

2011-11-04T15:55:00.000-04:00

On Tuesday I broke the story that a Romney supporter, the subsequent C.E.O. of the National Restaurant Association after Herman Cain likely had access to inside information about the sexual harassment allegations against Herman Cain.

Given a piece of news today about the timing of settlement, the likelihood Steven C. Anderson had knowledge of at least one of the settlements is extremely high.

According to information at the National Restaurant Association Steven C. Anderson took over at the National Restaurant Association in September 1999. According to Joel Bennett, per CBS News, attorney for one of the women who received a settlement, the settlement agreement was executed in September 1999, the same month Steven C. Anderson took over as C.E.O. It would be highly unusual to take charge as the executive without knowledge of recent or impending litigation status.

Steven C. Anderson claims no knowledge

A reporter took my advice and followed up with Steven C. Anderson. According to the Boston Globe:

"Chris Krese, a spokesman for Steven Anderson, told the Globe, 'He has not commented about this story because he didn’t have knowledge of the allegations when he was president and CEO of the (National Restaurant Association). He didn’t have knowledge of it so he obviously couldn’t have provided the story to the media or anyone, and he didn’t provide the story to the media or anyone.'”

I tend to take people at their word when their explanation is plausible, so I left it alone for a few days.

So does Steven C. Anderson know more than he is saying?

He has to know more.

Set aside the exact timing in September of him taking office at the National Restaurant Association for a few moments and find some description of his role when he came aboard:

According to an August 30, 1999 article in Nation's Restaurant News Steven C. Anderson was well versed in his new role when he took office in September 1999:

"Anderson now is learning the ropes at the NRA. Since the announcement of his appointment in late May, he has spent much of the summer in conducting an organizational audit of the group and talking With the board's leadership. He also has visited the Educational Foundation and attended a meeting of the International Society of Restaurant Association Executives.

In early August he moved his personal effects -- pictures of his children, several photos of past presidents wishing him well and framed articles chronicling his career -- into his new corner office. He now is collecting the war stories of senior staff members behind closed doors. In September he will tackle budget issues. After assessing the necessity and effectiveness of programs that are now in place, he will begin to make changes, he said." (emphasis added)

Once again, as I said on Tuesday:

"Reporters should follow-up with Mr. Anderson to discern his knowledge. At the least he likely knows the short list of people with inside knowledge about the sexual harassment allegations."

Cain claims Perry adviser is behind the leak of the harassment scandal to Politico

2011-11-02T18:52:00.000-04:00

And I do not buy it.

UPDATE 4:50 11/3/11: A number of sources are already reporting that the Campaign manager for Herman Cain has accepted the explanation of Curt Anderson. Good job dialing back quickly guys.
e.g., http://content.usatoday.com/communities/onpolitics/post/2011/11/herman-cain-sexual-harassment-rick-perry-/1?csp=34news

In an interview with Forbes, Herman Cain states in clear terms he believes former aide Curt Anderson is the source of the harassment scandal leak to Politico on Sunday evening. In support of this, Mr. Cain identifies a private conversation he had with Anderson in preparation for 2004 Senate run. The following factors weigh in favor of Curt Anderson being the source. He probably knew something about the scandals and he switched sides during the Presidential race.

There are a few items that suggest it was not actually Curt Anderson

1. Curt Anderson denies the conversation took place. This denial should generally be ignored due to its self serving nature, but if he were lying there are so many better lies to concoct, than simply “I never knew.”

2. According to Politico they saw documentation describing the allegations and showing their resolution. This would have had to come from someone in possession of the documents.

3. According to Herman Cain in the Forbes article “When I sat down with my general campaign consultant Curt Anderson in a private room in our campaign offices in 2003 we discussed opposition research on me. It was a typical campaign conversation. I told him that there was only one case, one set of charges, one woman while I was at the National Restaurant Association. Those charges were baseless, but I thought he needed to know about them. I don’t recall anyone else being in the room when I told him.”

All of this makes sense if there was an opposition briefing that Anderson forgot, and the real source was someone else, a National Restaurant Association insider.

Leads from the Romney camp?

http://northernvirginialawyer.blogspot.com/2011/11/former-president-of-national-restaurant.html

http://virginiavirtucon.wordpress.com/2011/11/02/another-suspect-emerges-in-the-cain-smear-leak/

Anyone have reasonable leads somewhere else?