Tuesday, July 20, 2010

Arguments Before the Court

Thank you your honor.

First, I’d like to apologize to the court for the emergency nature of my petition filing, but as you are aware, there is a deadline to be met for the printing and mailing of absentee ballots in the upcoming primary election. This means that the matter takes on some added urgency if a favorable finding from your honor is to offer any real redress.

I filed for the Republican and Democratic primaries on the 6th of July, almost two weeks ago, and a full week prior to the filing deadline. Despite this, I only became aware of my removal from the ballot last Wednesday thanks to the media and the newspaper articles published on the subject. While the Department of Elections did send a certified letter informing me of this development, it did not arrive until well after I had filed with the Chancery Court and about an hour before that hearing was scheduled. Luckily I followed up on the media reports and contacted the Department of Elections and the State Attorney General’s office on my own. I shudder to think of what the result would have been if I had not taken the initiative and instead relied upon the State of Delaware to act in a timely manner in so grave a situation.

I also apologize to this court for the amateur manner in which my case is being presented. Neither my campaign nor the Libertarian Party has the resources to hire a team of attorneys to represent our interests, so I have no option but to represent myself. I am not an attorney, I am a software engineer. I’ve seen lawyers in the movies, so I think I can at least make a credible and coherent enough case in real life. Clearly the attorneys presenting on behalf of the defendant leave me outgunned.

I am a registered Libertarian, and I am active in the Libertarian Party’s small but growing organization. I have made no secret of this fact and declare it with the utmost pride. I have been duly nominated by the Kent County and Delaware State Libertarian Parties to contest the 32nd District Representative election. I believe that the libertarian message has great appeal beyond what our limited registration numbers suggest. I believe that this appeal resonates not just with independent and unaffiliated voters, but also with members of the public who have registered with the Democratic and Republican parties, whether they have done so out of genuine affection for those parties or simply to participate in the State of Delaware’s closed primary system.

In consideration of this appeal, I filed to contest the Democratic and Republican primary elections, which were otherwise uncontested. I filed the appropriate forms and delivered the appropriate payments to the Kent County Department of Election. Copies of these filings have been filed with the court as Exhibit A. Following these filings, the Defendant included me on a list of primary election candidates available through their website. They also removed the Democratic and Republican party-endorsed candidates in these primaries from the general election listing which they had been previously entitled to as uncontested nominees.

Over a week after these events, I learned through the media that my filings had now been rejected and that a letter from the Department of Elections had been sent. This letter has been presented to the court as Exhibit B.

In this letter, the defendant admits to acting at the behest of the Democratic and Republican Party committees. The defendant cites the parties’ assertion that I was not and have never been “affiliated” with their parties. The first paragraph of the letter was devoted solely to this purpose. The remainder of the letter indicated that due to my lack of “affiliation” I was therefore ineligible to contest their primary.

Their assertion that I am not and was never “affiliated” with these parties is patently false, as I have not only been registered as a member of both of these parties in the past, but I have also worked extensively with candidates from both parties, attended meetings organized by both parties, and conducted comprehensive outreach via electronic media to the voters represented by both parties. The parties’ assertion, despite its falsehood, is nevertheless irrelevant.

There is no supporting language in the applicable chapters of the Delaware State Code indicating that a candidate in the primary elections must be “affiliated” or registered to the party whose primary the candidate is contesting. In the Delaware Superior Court case, which I will be referring to often, of the Democratic Party of the State of Delaware v. the Department of Elections of New Castle County, et al., No. 94C-08-227, the Honorable Judge Henry DuPont Ridgely ruled that a candidate’s party registration was not relevant to the primaries in which they can participate. He wrote in his opinion under section IV, “Nowhere in these statutes is there any explicit requirement that a candidate be registered to vote in the party for whose nomination he or she seeks.” Furthermore, Judge Ridgely found that, “The right of a person to be a candidate for public office is a fundamental one that should be restricted only by clear constitutional or statutory language.” He goes on to quote an earlier ruling stating, “[A]ny question or doubts of eligibility of a candidate should be resolved in favor of the candidate.” Most importantly, Judge Ridgely states unequivocally that, “Under Delaware’s present statutory scheme, it is for the eligible voters of a party to ultimately decide whether the candidate should be the nominee of their political party notwithstanding her present registration…” That is all I am asking this court to do, to ensure that the party members of the 32nd District are given the opportunity to select their own nominee without interference from the party machines.

The defendant’s defense will no doubt rely a great deal on a sixteen year old 1994 Attorney General’s opinion, written in part by this defendant’s attorney, picking apart the language in Chapter 31 of Title 15 and finding a new excuse to exclude candidates, after the aforementioned court case, decided only weeks earlier, destroyed their original excuse.

Much is made of the use of the singular case when referring to a “political party” vs. “political parties”. The AG’s opinion uses this out-of-context citation to make an unsupported leap of logic in asserting that a candidate may only run as the nominee of a single party. Not only is this assertion another attempt to, again in the words of Judge Ridgely, “read words into the statute restricting candidacy which are not there,” but this facet of the AG’s opinion has been repeatedly and conveniently ignored in the recent past by the numerous other fusion candidates presented to the voters of Delaware under multiple parties’ nominations. These candidates include, from the Department of Elections own website listing election results, just for 2008, Karen Weldin Stewart of the Democratic and Working Families Parties for Insurance Commissioner, Tyler Patrick Nixon of the Republican and Libertarian Parties for State Representative, Dennis E. Williams of the Democratic and Working Families Parties for State Representative, Terry R. Spence of the Republican and Working Families Parties for State Representative, Jesse Priester IV of the Republican and Libertarian Parties for State Representative, William A. Oberle Jr. of the Republican and Working Families Parties for State Representative, Vincent A. Lofink of the Republican and Working Families Parties for State Representative, and Jerry L. Semper of the Democratic and Working Families Parties for State Representative. JUST IN 2008! Granted these candidates were registered to the major parties and then sought the support of the smaller parties, but that is due to the statutory differences in the mechanism for selecting nominees in each party. Is the defendant asserting that a fusion candidacy is only legal if the major parties are using the good name of the minor parties, but not if a minor party is trying to influence the direction of a major party? Is this double-standard supported by the law? I have certainly not seen it, and it is not the role of the State to play favorites and defend the major parties from their own members.

Not only does this new excuse fail to pass statutory muster, but the AG’s opinion furthermore conflicts directly with the ruling of Judge Ridgely by again raising the issue of, “their respective political party.” The AG’s opinion asserts that the phrase refers to the candidates registered party rather than the party whose primary they are contesting. Judge Ridgely’s words are again prescient when he declares in part IV, “the references to the candidate’s respective political party in §3106 merely mean the party the candidate has identified as her own on the Notice of Candidacy.”

The remainder of this opinion continues to focus on the issue of party affiliation with respect to the specific question presented to the Attorney General’s office in 1994, and has no bearing on the language included in the law or the interpretation in Judge Ridgely’s opinion. The AG’s entire opinion brings to mind a quote from Shakespeare’s MacBeth in that, “It is a tale…full of sound and fury, signifying nothing.”

The defendant may also argue that allowing a Libertarian to participate in the primaries will create “confusion” or “chaos”. Due to my clear identification as a Libertarian and proud declaration as such to anyone who will listen, this argument is insulting to the intelligence of 32nd District voters. What they really mean is that it will create “chaos” and “confusion” within the party organizations as they may nominate a candidate who does not answer to them, but instead answers to the candidate’s own constituents. It is not the responsibility of the state to protect the established interests of any political party. Are they not satisfied to have more money, more lawyers, more name recognition, a longer history, and a state sponsored primary process? Have they so little faith in their chosen candidates that they cannot allow an outsider to ask their membership for a nomination? I recognize that I have a disadvantage not only in the general election as a Libertarian, but also in each party’s primary. What motivates the major parties to fight such an insignificant threat, rather than simply accepting a significant filing fee, enjoying the additional funds, and laughing at my expense, all the way to the bank?

When considering the meaning of any law, and Chapter 31 of Title 15 included, it is important to consider legislative intent. There could also be an argument, that whatever the precise language of Title 15, the General Assembly of the State of Delaware did not intend to enable fusion candidacies in drafting Title 15. Not only does Judge Ridgely again offer a relevant opinion, namely that, “If public policy arguments favor a different statutory scheme, that is a decision for the General Assembly, not this Court,” but the General Assembly did in fact consider a different statutory scheme when it considered HB177 under the 144th General Assembly in 2007. Under HB177, Chapter 31 and Chapter 33 of Title 15 would have been amended to require that no candidate be nominated by any party unless the candidate was a registered member in that same party. The synopsis of HB177 also declared that the explicit purpose of the bill was to abolish fusion candidacies. The fact that this bill was introduced indicates recognition by the General Assembly that fusion candidacies were legal, and the fact that this bill was defeated indicates a legislative intent to maintain the option of fusion candidacies in the future.

Your honor, the decision by the defendant to remove my name from the primary ballot and reject my Candidate Filing Form is not supported by the applicable statutory law, or the case law. Instead it is supported only by the opinion of a Deputy Attorney General. The Attorney General is a partisan political position, and based on the admission of the defendant in her letter presented as Exhibit B, I was only removed from the ballot following identical complaints from the Democratic and Republican establishments, despite meeting the statutory requirements. They expressed their willingness to take this issue to court. I wish they had. Instead, the Attorney General’s office bent to the will of the major parties rather than following the letter, spirit, and established precedent of the law. In doing so they gave compromised legal direction to the Department of Elections.

To paraphrase Judge Ridgely, it isn’t the role of the court to substitute its opinion, or the Attorney General’s opinion, for that of the General Assembly. I firmly believe that the sovereign authority of the State of Delaware should not be compromised by coercive threats of legal action from establishment interests. It is the role of the State to protect all citizens equally before the law. That the major parties need only threaten legal action when I must take legal action demonstrates that the State of Delaware, and specifically the Attorney General’s office, responsible for providing unbiased legal opinions to the Department of Elections, answers to special interests before it answers to the rule of law and the people of Delaware.


  1. Can you post the defendant's argument and the Judge's ruling?

    It would be quite interesting to see if either has any merit (not to mention whether or not the Judge made any really obvious reversible errors)

  2. I will be posting everything I have over the course of the next day or so. I will also be reaching out to the other "minor" parties to examine the possibility of appealing this decision to the Supreme Court.