I think I need to clarify…
I think the Democrats are wrong to want to keep Nader off the ballot due to the “fear factor.”
But I think the Virginia Board of Elections is RIGHT in forcing the Nader campaign to comply with the rules, which it seems painfully obvious they knew well in advance of flying through the door at the last minute.
I hope that makes more sense this time.
It’s irrelevant how clearly spelled out or how easy to find the rule is, or whether they were aware of it or not. If a rule is invalid, it cannot be applied, and the informal rule is invalid because it did not undergo the clearly defined process to become a rule.
Can the US Congress wave its hands and declare that Tuesdays are plaid-shirt-wearing days punishable by death? No, not even if the Majority and Minority leaders both go on TV and swear that it’s a law, honest, really it is! Unless it goes through that all-too-familiar how-a-bill-becomes-a-law rigamarole, it ain’t the law, and no one gets to shoot you for not wearing a plaid shirt.
lno, I obviously cannot prove it, but I firmly believe that the Nader campaign had possession of the Virginia Board of Elections “Ballot Access Requirement” form and knew damn good and well what they had to do to get their candidate on the ballot. They complied with every other aspect of those rules. And every other candidate who wants to get on the ballot uses that edition of those rules to know exactly what they have to do to get on the ballot. They are the official rules because they are clearly outlined on the official documentation. If there was any concern that each and every rule on that form wasn’t “legal,” the time to call them into question is not after you fucked up and were just lucky enough to do so on the one rule that could have a “legal” loophole in it.
Frankly, for the reasons outlined above, I don’t care if Nader gets on the Ballot in all 50 states. I think he should, and I don’t think he’s a threat to the Democrats. I think it sucks that his campaign were so inept.
But they knew full well what they had to do to comply, and didn’t bother to do it. They blew it.
I’m with lno on this one. Assuming that the rule about the ordering of submitted petitions was never voted upon by the Board, it’s not really a rule. The fact that fifty-seven different publications say it’s a rule doesn’t lend it any particular force or effect.
Now, you may say that the Board’s voting on a rule is a minor point: that as far as the public knew, the Board had voted – after all they had published the rule exactly as if it HAD been voted upon.
But if you’re willing to bend the process there, it seems odd to insist that 12:00 noon, not 12:45, is the exact, accept-no-substitutes deadline.
Sorry, this doesn’t follow.
IMO, the board can reject the petitions, unless one of these conditions exist:
The Rule was secret and a person in charge could not have reasonablly expected to know or asked about the rule. Placing a candidate on the ballot is a serious important matter, it is reasonable to expect seriousness on the part of those in charge of collecting the petitions. Questions about the deadline, format and order are presumptive.
The enforcement history of the rule has been by whim
The rule itself does not have an important purpose. I believe the sort rule does have an important and useful purpose–to make the verification process quicker, cheaper and more accurate. It’s not the state that wants Eck on the ballot, it’s the petitioners, therefore they have the burden.
Why not? How can someone claim consistency if they envince a laissez-faire attitude towards the Board’s strict observance of procedure in adopting rules, and then insist upon a strict observance of rules whe applied to a candidate?
If you think that the Board shouldn’t be held to a strict standard when making rules (“Vote, not vote, what’s the difference? Everyone clearly agreed!”) what’s the rationale for holding the candidate to a strict standard (“12:00 noon means 12:00 noon, not an hour later!”)
Well I didn’t understand what you were trying to say, so that’s why I said that. But even now that I have a clarification, it still doesn’t make sense.
First, a few questions. Do we know what the Virginia Board of Elections’ policy is on how procedures must be agreed on in order to appear on their forms? Do we know whether it actually required a formal vote to be considered an enforceable procedure? Is there any precedent whereby a known rule that’s existed since XX year, that all prospective candidates are aware of, is understood to be “official,” even if it wasn’t formally voted on (kindof like “common law spouses” – the presumption being that even without legally going through a ceremony, they’re considered married due to the duration and extent of their relationship)?
Aside from not knowing the answers to all those questions, I still don’t really get how one is dependent on the other. It seems to me that so long as there has always been consistency in enforcing the procedures that are clearly outlined, to every candidate who applies, that should be sufficient.
Refreshingly, I can agree with Bricker for once. The Board has a process for establishing rules. If they don’t bother to follow the rules, how can they require Mr. Ecks’ supporters to?
Shayna:
If the state legislature, in a last-minute rush, mistakenly sent off a bill to the printer’s that had not ever been voted upon or signed by the governor - say, a law that purported to limit the use of powerboats in state parks - and that because it was such a noncontentious issue, no one really noticed the error for years, although whenever anyone happened to check the rules, they’d see powerboats were prohibted in state parks.
Relying on that information, in fact, the park rangers produce and distribute a document that mentions the prohibition. As the years go by, people simply accept this as law.
Then one day, a park ranger writes a citation to a power boater.
The power boater, rather than simply swallowing his ire and writing a check, decides to write an indignant letter to all the legislators who voted this stupid law in. Imagine his surprise when he discovers the law, although promulgated and relied upon, was never formally passed.
Should he be held to the power boat rule?
Did the board pass this rule formally? No, says the OP, although we may learn differently. If not, did the board *delegate * relevant rulemaking authority to the manager who published the sorting rule and is enforcing it? Then Nader’s screwed. Did they *not * so delegate it (and btw, their knowledge and acquiescence of such a rule, at the very least, is clear)? If not, then does Virginia law recognize that long-established “informal” procedures constitute common law anyway? If so, he’s screwed.
But then the validity of signatures always seems to be an issue - other cases I remember have half of them typically thrown out. He may be screwed anyway, but it’s nobody else’s fault if he is.
Your portrayal of the situation is probably closest to reality. The group scans the requirements document for the deadline, doesn’t pay enough attention to the rest, then when they get busted for missing a requirment they start looking for ways to weasel in anyway. I see it as a power struggle more than a real issue. The board members(presumably motivated by partisanship) were reportedly looking for excuses to block Nader’s entry into the race and found one when the Nader supporters negligently failed to fulfil a minor qualification. Then the Nader supporters take it up a notch and research the history of the qualification and learn it was not officially implemented, and bam, the fit hits the shan.
Another possibility is the Nader supporters were genuinely unaware of the restriction, perhaps getting the requirements from some source other than the “official” publication by the board. In either case there was negligence on the part of the Nader supporters, either by not reading the requirements correctly or by not getting the correct source documents. It is up to the individual to determine if the punishment fits the crime here. I stated my personal opinion earlier.
Enjoy,
Steven
This is faulty reasoning, implying that a mistake by the board justifies ANY mistake by the petitioner.
Did the Green Party attempt to submit the application before the deadline? I think this question is at the crux of the matter. If they did, then they complied with the rules; if they didn’t, then they didn’t comply.
If they didn’t attempt to submit the application before the deadline, then how much leeway should we therefore give them? Imagine they’d come in two weeks after the deadline, claiming that it took them two weeks to sort the files into the appropriate piles; would we give them two weeks of leeway due to the bad rule?
The anal retentive in me thinks that the entire issue should be decided on whether they attempted to submit the application before the noon deadline.
Daniel
Rick,
Are the Virginia Board of Elections’ Ballot Access Requirements “laws” or are they “procedures/rules”?
I place an entirely different weight on the passage of actual laws, where the penalties for non-compliance are monetary fines and/or jail, versus writing some procedural rules.
But again, I don’t know what the requirements for getting an eligibility rule placed on the form actually are. No one’s shown them to me yet. And how would a judge rule on the “common law” issue as it pertains to this case?
Ethically, I believe the Nader folks knew exactly what they had to do to comply and didn’t, and therefore, they should be SOL. But if a judge were to say, “Well boys, you lucked out because you fucked up on the only rule that managed not to make it through the legal approval process, so you’re in,” I couldn’t really object. But I could see it going the other way, too. Those were the well-established rules, everyone else has historically been held to them, you knew them yourself, too bad, so sad.
Which, I remind you, I wouldn’t be happy about anyway, because I think Nader should be on every ballot in this supposedly free democratic replublic. And if I were a Virginian who put my signature one of those petitions, I’d be damn pissed that Nader’s team was so irresponsible as to not do exactly what the Board of Elections had spelled out that they had to do. What a waste of everybody’s time and energy.
I believe they are “regulations.”
Typically, regulations are made by administrative bodies under a delegation of authority from the legislature.
As to the actual procedures - I don’t know either. And I’m taking on faith this vague claim that “the Board never voted”.
I don’t think there is any “common law” claim here.
Dude, you have your own state? What are the taxes like.
As for me, I say Mr Ecks gets on the ballot. And informal rule should NOT trump the will of someone who has jumped through all the formal rules.
Far better for a hard-ass no-flexibility than a half-assed flexibility that may well change based on the day of the week, who’s working the counter, what-have-you.
And, yes, I knew what you were thinly masking. Not quite as subtle as it might have been.
The problem is, there’s no way to distinguish it from all the other rules on the form. It’s not as if there’s a 6 page document filled with “formal” rules and when the clerk hands it to you he says, “Oh, and by the way, it’s kindof casual, but we’d really like it if you could maybe sortof put them in district order before you hand them in.” For all intents and purposes, it appears just exactly as formal as every other requirement outlined.
Nader’s people had no reason to believe or suspect that there was any more flexibility to that rule than any other. And knowing full well what the published rules were, they were careless and irresponsible and neglected to adhere to one of them. Should they be rewarded for fucking up the one that might not have gone through a formal vote, but clearly has the tacit approval of the Board by virtue of the fact that they publish and enforce it right along with all the others?
…
Ok, I went to look something up and now it appears that the plot thickens with further details, which can be found here and here. [ul][li]Nader’s team knew the rule, as evidenced by the fact that “petitions bearing slightly more than 14,200 signatures were organized by congressional district when Nader volunteers arrived at the Elections Board office.” (before the deadline, it should be noted.)[/li]
[li]They had an additional 1,000 petitions that they brought in unsorted.[/li]
[li]They “attempted to turn in the signatures and were ushered into a break room and told to continue sorting them there because they’d have to do that anyway, but then they were not accepted at that point by the secretary.”[/li]
[li]This appears not to be a “long-standing,” “informal” rule that has been enforced for years, but rather, “the guidelines were developed by the SBE staff last fall… [and] research found that the SBE staff drafted the requirement because the agency is short of personnel to handle the load of work that leads to a fall election.”[/li]
[li]The Attorney General’s office’s “investigations of Aug. 21st were unable to locate anywhere in the minutes of the SBE that the actual SBE … approved the use of this Candidate Guideline or internal SBE staff requirement that petitions be sorted by congressional district.” [/ul] While I still find it – I don’t know – wrong, somehow, to benefit from a technicality that they didn’t even know existed at the time, I can’t see a single reason why, at the very least, the 14,200 signatures they brought in on time and sorted, shouldn’t have been allowed to be submitted in the first place, even if they declined to accept the last 1,000. Sure, it’s recommended that at least 15,000 signatures be submitted to ensure at least 10,000 of them are eligible voters, but it’s not as if that part of the guideline is a “rule.” The SBE staff were just being asses at that point. There’s no rule that I can find that says if some of the petitions come in unsorted, or late, or whatever, that none of the rest of them that did come in on time and sorted would be accepted. [/li][quote]
Must be signed by not less than 10,000 qualified voters in Virginia, including at least 400 qualified voters from each of Virginia’s eleven congressional districts.
It is recommended that 15,000 - 20,000 signatures be obtained with at least 700 signatures from each congressional district because many people who are not registered to vote will sign a petition.
[/quote]
And if the staff threw the sorting thing in there without the Board’s approval, then no, it obviously can’t be enforced. Nader got very, very lucky on that one! There’s still a chance, of course, that not enough signatures will be validated, as happened in Missouri and Arizona.
And for no reason other than to get it off my chest, this…
is a lie. It isn’t even remotely possible to have been certain that you were right all along and sure you were within the letter of the law, when you had no possible way of knowing the SBE’s board meeting minutes would turn out to have a no-vote on that rule (which you complied with for the vast majority of your petitions). So shut up.
Thanks, Shayna, for the additional information! Given that they attempted to turn in the signatures, it sounds to me as if this is open-and-shut: they attempted to comply with the law, even if they thought, incorrectly, that they were neglecting an aspect of the law. The board of elections was required to accept their application even if they, incorrectly, believed they weren’t. We should retcon everything up to the moment where they attempted to submit the signatures, pretend the board accepted them, and move on from there.
Daniel