For many years, the system used by Virginia to certify candidates for the presidential primary ballot has been in violation of basic statutory and constitutional principles. Political luck enabled the state's leaders to look the other way. But no longer in part due to my investigation into the failure of former Speaker Newt Gingrich and Governor Rick Perry to be certified for the March, 2012 primary ballot under Section 24.2-545 of the Code of Virginia. Michele Bachmann, John Huntsman and Rick Santorum are also not on the ballot.
But the issue here is not about party or person. Rather it concerns the right of my fellow Virginians to have a fair and transparent process wherein they can exercise their right to vote, in this case for the primary candidate of their choice.
Insuring the integrity and fairness of the presidential primary process is the responsibility of Virginia's state government. The State Board of Elections (SBE) was created to exercise this responsibility. To get on the primary ballot, a candidate in Virginia must submit petitions with at least 10,000 valid signatures from registered voters -- 400 of which must come from each of the Commonwealth's 11 congressional districts.
The state legislature could have given the SBE the authority to review such petitions for purposes of certifying candidates. Instead, lobbied by the major political parties, Section 24.2-545 gives the Democratic and Republican chairs this "life-or-death" political power to determine whether a candidate in their respective party has earned a "certification" for inclusion on the primary ballot. The SBE says this law gives the chairs sole discretion; the agency can't question their decision. Moreover, the SBE provides no written or other guidance on the appropriate standard of petition review. Such unfettered delegation of a public power from a state agency to a private political entity has historically produced classic, eye-popping problems.
The Virginia presidential primary ballot mess is the latest example.
Any first-year law student knows a decision to allow or deny ballot access must be made according to one uniform, transparent standard applicable to the petitions submitted by Democrats, Republicans and independents.
This is not the case in Virginia. The Democratic Party uses a form of random sampling to review the petitions. The Republican Party uses two different standards. A GOP candidate submitting petitions totaling at least 15,000 signatures is automatically given "certification" for the ballot. But a GOP hopeful who submits 14,999 or less gets no such automatic pass: every name is checked until he/she either gets certified or is rejected for failing to meet the threshold.
This comic creation of a Democratic standard for Democrats, and a GOP standard for Republicans violates too many laws and constitutional provisions to list.
But it gets worse.
As 24.2-545 makes plain, the fundamental requirement of the petition process is for candidates to file 10,000 valid signatures from duly registered votes. Yet the Democratic and Republican review process doesn't check even a single signature. Nor could it: The registration card needed to check whether the person claiming to be Jane Doe living on XYZ Street is actually the person who signed the petition remains with the local registrars around the state.
The revealed truth -- the process doesn't allow, or even anticipate, the political parties doing what 24.2-545 intends as regards signature validation. All the parties do is check to see if there is John Doe at XYZ Street. They don't know whether the signature is valid or not.
The bottom line -- no candidate -- not President Obama, Mr. Romney nor Mr. Paul -- had his petitions properly reviewed. According, they should not have been certified for the March 2012 primary ballot.
But you say, "Paul, come on, that means no candidate should have been certified for the ballot."
My answer -- it is what it is.
The good news is that the state legislature, which convenes early next month, can act quickly to clean-up this mess and stop Virginia from being ridiculed nationwide. It can pass emergency legislation using criteria recognized by other states to automatically put legitimate and credible presidential hopefuls on the Virginia primary ballot.
This will admittedly work to the benefit of a few candidates who don't deserve it. But it will also give back -- it is now being denied -- to many hundreds of thousands of Virginians their right to vote for the candidate of their choice in the primary as the state's laws and philosophy intended.
This isn't a perfect solution. But it is fair, balanced and far better than the alternative.
Paul Goldman is the former chairman of the Virginia Democratic Party. He and the Center for the Republic, founded by Ronald Reagan, have joined to get fair elections in the Virginia presidential primary. For more information, visit: conservativesforfairelections.com.