Virginia: If it's wrong to exclude Gingrich and Perry, can they get on ballot?

Newt Gingrich is not amused at being left off the Virginia primary ballot, Rick Perry is suing, and some in the state are sympathetic. So what went wrong?  And can it be undone? 

By , Staff writer

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    Members of the Virginia State Board of Elections pick the paper indicating the order of names to appear on the ballot for the March 6, Republican Presidential primary ballot in Virginia. Only Ron Paul and Mitt Romney are on the ballot, but some are saying it was wrong to exclude Gingrich and Perry.
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Mitt Romney is having fun with Newt Gingrich’s inability to qualify for the Virginia primary ballot, likening him to Lucille Ball in the famous episode of “I Love Lucy” where she can’t keep up with a conveyor belt of chocolates.

“You’ve got to get it organized,” Mr. Romney chided Tuesday in New Hampshire.

But to Mr. Gingrich, the former House speaker and a leading contender for the Republican presidential nomination, the ballot failure is no laughing matter.

Recommended: Election 101: Ten questions about Newt Gingrich as a presidential candidate

He also has influential Virginians who agree that it was wrong to exclude Gingrich and Texas Gov. Rick Perry from the March 6 Virginia primary. Each had submitted more than the required 10,000 signatures, but on Dec. 24, state election officials deemed that they did not have enough valid signatures to qualify.

Romney and Texas Rep. Ron Paul are the only two candidates to qualify for the Virginia primary ballot. Other major contenders, such as Rep. Michele Bachmann of Minnesota and former Sen. Rick Santorum of Pennsylvania, did not attempt to collect the necessary signatures.

On Wednesday, two former state party chairmen – a Republican and a Democrat – held a press conference in Richmond to call for emergency legislation that would establish a new standard for participation in a presidential primary.

The majority leader of the Virginia House of Delegates, Kirk Cox (R), has stated that there’s not enough time to pass legislation. But Bill Pascoe, executive vice president of the conservative group Citizens for the Republic, disagrees.

“Once the legislative and executive branch leaders realize how screwed up the system is, I think a relatively simple legislative fix will present itself to them, and they’ll be able to move a bill on the first day of the legislature, on Jan. 11,” says Mr. Pascoe in an interview.

“They could say if the FEC [Federal Election Commission] qualifies you for matching funds, you qualify for the Virginia ballot,” Pascoe suggests.

Pascoe is working with the two former Virginia party chairs – Democrat Paul Goldman and Republican Pat McSweeney – in urging the state legislature to act. He says they’re not backing a particular candidate, rather working on behalf of the right of Virginians to cast a ballot for the candidate of their choice.

Gingrich, meanwhile, is now blaming not only the system, but fraud as well for his exclusion from the Virginia ballot.

“We hired somebody who turned in false signatures,” Gingrich said at a campaign stop Wednesday in Algona, Iowa, according to CNN. “We turned in 11,100 – we needed 10,000 – 1,500 of them were by one guy who frankly committed fraud.”

Governor Perry is trying a different tack. On Tuesday he filed suit in the US District Court for the Eastern District of Virginia challenging the constitutionality of the Virginia law regarding ballot access. Not only does the law require the gathering of 10,000 signatures, it also requires that at least 400 come from each of Virginia’s 11 congressional districts. And it requires that signature-gatherers be residents of Virginia. The legal complaint focuses on the ban on out-of-state workers.

“We believe that the Virginia provisions unconstitutionally restrict the rights of candidates and voters by severely restricting access to the ballot, and we hope to have those provisions overturned or modified to provide greater ballot access to Virginia voters and the candidates seeking to earn their support,” said Ray Sullivan, the Perry campaign’s communications director, in a statement.

One legal scholar on election law sees the lawsuit as a long shot, both legally and politically.

“The initial hurdle is one of laches, the failure to bring suit before filing time,” writes Richard Hasen of the University of California, Irvine, on his blog. “This is an emergency of Perry’s (and Gingrich’s) own making.  Surely they knew of the requirement earlier.”

Another expert on ballot access explains why it was so difficult to make the 2012 Virginia primary ballot, when in the past many more Republican candidates qualified: This time, they’re checking the signatures.

“The only reason the Virginia Republican Party checked the signatures for validity for the current primary is that in October 2011, an independent candidate for the legislature, Michael Osborne, sued the Virginia Republican Party because it did not check petitions for its own members, when they submitted primary petitions,” according to an article on Ballot Access News, edited by Richard Winger.

“The effect of the lawsuit was to persuade the Republican Party to start checking petitions,” the article states. “If the Republican Party had not changed that policy, Newt Gingrich and Rick Perry would be on the 2012 ballot.”

The article also points out that the Democratic Party of Virginia opposes the strict law on primary ballot access, and helps the candidates collect signatures.

These differing standards, says Citizens for the Republic executive Pascoe, of past vs. present and Republican vs. Democrat are reason enough for the legislature to act quickly and put in place a more inclusive system in time for the March 6 primary.

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