April 25th, 2012
On April 25, the Virginia State Board of Elections told the Libertarian Party that its presidential petition, which already has 2,000 signatures, is invalid. Virginia law requires petitions for president to include a list of presidential elector candidates, and says one elector must reside in each U.S. House district. However, Virginia law does not require the presidential elector candidates of qualified parties to observe any residency requirement.
When the Libertarian Party drew up its list of presidential elector candidates, it chose one elector from each U.S. House district as those districts existed at the beginning of the year. The legislature did not draw new boundaries until February, and the U.S. Justice Department did not approve the new districts until March. The Libertarian Party felt confident that it could be circulating its presidential petition using the old districts, because the legislature had unanimously approved a bill saying old district boundaries are valid in years when the redistricting does not occur until the election year itself. That bill, HB 1151, passed March 2, and as written, was to take effect immediately. The bill was important to the party’s planning, because when the new district lines were revealed, it turned out that one Libertarian presidential elector, David Switzer, had been placed into a different U.S. House district.
However, in April, the Governor, on the last possible day, asked the legislature to amend the bill so that it doesn’t take effect this year, and the legislature complied on April 18. On that day, the legislature altered the bill so that it doesn’t take effect until 2013, and furthermore, even in future presidential years, it doesn’t apply to presidential petitions.
Virginia law lets unqualified parties use stand-in candidates, for all office. That section of the law is in section 24.2-540. However, there is a special section involving presidential candidates, 24.2-543. Although it says presidential and vice-presidential stand-ins are permitted on the petition, technically it doesn’t say that presidential elector candidates can be stand-ins. The State Board of Elections says even though this gap in the law is inadvertent, that the Board cannot approve substitution of a new elector candidate. This appears to defy case law, because in 1989 a U.S. District Court ruled in El-Amin v State Board of Elections, 721 F.Supp 770 (eastern district) that the U.S. Constitution requires states to permit stand-in candidates. The Board’s hostile decision also violates precedent, because in 2008 the Board let the Green Party substitute a new candidate for presidential elector after the petition had been submitted. It is believed that in 2008, the Board also allowed Ralph Nader to substitute a new candidate for presidential elector.