SECOND UPDATE: AG McDonnell & Closed Primaries

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NOTE: Below is my original post, however, we have learned that any involvement from McDonnell's office is required by law. Please see the note from his office at the bottom of the post.

Many in the Virginia blogosphere have commented on Senator Cuccinelli's efforts to keep liberal activists out of GOP primaries. What I found interesting is that few are discussing the fact that Attorney General McDonnell's office seems to be actively opposing Cuccinelli’s efforts. See the below from Tyler Whitley's RTD article:

But lawyers for the state said the time was not legally "ripe" for Sen. Ken Cuccinelli, R-Fairfax, to bring suit against an open primary that will not be held until June 2007. (Emphasis mine)

Clearly the AG's office has attorneys arguing against Cuccinelli in front of the judge- using an argument that there is not sufficient standing to bring the suit forward (despite all this timing being arranged years ago when the RPV State Central Committee addressed the issue).

Here are the specifics of the suit:

Cuccinelli, a lawyer, represented the 11th Senatorial District Committee of Chesterfield County. The district is represented by state Sen. Stephen H. Martin, a Republican, who already has filed papers to hold a nominating primary in the district in June next year. All members of the General Assembly are up for re-election next year. Cuccinelli argued that Martin could be damaged politically by crossover voters who do not have Martin's best interests at heart.

Assistant Attorney General James Stuchell said the court could not prove injury to Martin because there was no guarantee he would run in 2007, nor that he would have opposition if he were to run. (Emphasis mine)

Will the judges agree with the AG's office that injury could not be proven? Do they also believe Cuccinelli's lawsuit to keep liberal activists out of the GOP should be dropped?

The judges questioned Stuchell's position that a suit could be filed next year, closer to the proposed primary. That might not lead to sufficient time to challenge the statute, they said.

This is extremely interesting subject matter and could have a huge impact on Virginia politics. I am just very surprised a conservative such as Bob McDonnell is having his offices actively oppose the effort. Does a closed primary benefit Bolling more than McDonnell?

UPDATED: Please see Shaun Kenney's comment for further clarification. It appears I misunderstood McDonnell's "obligatory" action as optional.

UPDATED: Below is a response from McDonnell's Director of Communications- it should clear everything up.

Just a quick note to follow up on Shaun Kenney’s clarification. Shaun is exactly right. The Office of the Attorney General serves as counsel to all state agencies, therefore we have a statutory obligation to represent the State Board of Elections. This is also why you will note that in any articles about this case we will not offer comment, as that would represent a conflict of interest. As the state’s law firm this office has statutory obligations that it must adhere to. In the future, if you ever have any questions about an action this office has taken please let me know so I can explain the circumstances of the situation and make sure everyone is on the same page. Thanks, and keep up the good work with the blog

J. Tucker Martin
Director of Communications
Office of the Attorney General

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8 Comments

That IS surprising; I did not put two and two together from reading those reports. Thanks and please keep us posted on anything else you might hear.

Shaun Kenney said:

WOAH WOAH WOAH...

You got the wrong idea.

In order for the law to be changed, you have to sue the Commonwealth.

Who represents Virginia? The Attorney General.

It's obligatory... nothing more. This is a *huge* misunderstanding.

No Relation said:

Good point, Shaun. I wonder...is settling out of court a possibility? Can the law be changed without actually going forward with the suit?

Sophrosyne said:

Thanks Shaun...

I am no lawyer (clearly) and I assumed the AG was being proactive in opposing the suit, rather than doing what was required by law.

Anyways, thank you!

J. Tucker Martin said:

Just a quick note to follow up on Shaun Kenney’s clarification. Shaun is exactly right. The Office of the Attorney General serves as counsel to all state agencies, therefore we have a statutory obligation to represent the State Board of Elections. This is also why you will note that in any articles about this case we will not offer comment, as that would represent a conflict of interest. As the state’s law firm this office has statutory obligations that it must adhere to. In the future, if you ever have any questions about an action this office has taken please let me know so I can explain the circumstances of the situation and make sure everyone is on the same page. Thanks, and keep up the good work with the blog

J. Tucker Martin
Director of Communications
Office of the Attorney General

NoVA Scout said:

The AAG did a poor enough job in defending the Commonwealth's position that no one should be able to accuse the AG of opposing Cucinelli's argument. It may not have been deliberate, but the AG's office functionally threw in the towel in a case where there were legitimate arguments for the People.

Sophrosyne said:

And what are these legitimate arguments for refusing to allow political parties to have closed primaries only for their members?

NoVA Scout said:

Jaded JD has done an excellent job of covering this issue since it arose in the trial court. One of his stringers attended the argument at the Circuit. JD's report and analysis based on that coverage is available on his site and I commend it to all who are interested in this issue. No need to reconstruct it here.

Personally, my basic concerns (aside from the procedural/legal issues that got lost at the Circuit) are that the underlying statutory regime for tracking registration and credentialing has not caught up with the basic desire of the political parties to control their primary electorate. Beyond that, it strikes me as bad policy from a political standpoint to narrow the primary electorate for both parties under a statutory system that makes it nearly impossible for any third party to establish itself when the predominant 2 parties run to their wings in a way that frustrates governance. Without that kind of check on the parties getting completely out of touch with the citizens, you always face the danger of a perpetual Byrne/Boling loop that is bad for Virginia and bad for participatory democracy. Finally, open primaries, properly run, can be a tremendous recruiting vehicle to bring new membership to the GOP. We profoundly need this in Virginia. Crossover voting issues can largely be controlled by holding primaries on the same day as the Dems. While I am not unsympathetic to the notion that the voters in a party primary should not be hoardes of cross-overs trying to nominate the weakest candidate, I also have grave concern that a severely restrictive system weakens the Party in the long run.

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