Brother Beyer, Can I Get an Amen for EVIDENCE-BASED POLICY? LOL
Jerry Cruz, Do You Have Another HOUR to Get MY AUTOGRAPH? LOL
Memorandum of Law in Support of Temporary Restraining Order
Signature Petitions
“In Virginia, independent and minor party candidates seeking national office must collect by petition a certain number of signatures from qualified voters to appear on the general election ballot. ” Constitution Party of Va. v. Va. State Bd. of Elections, 472 F. Supp. 3d 285 (E.D. Va. 2020) , and “[w]e have a long tradition of deference to the legislature”, even for “adoption of any new theory of liability, especially when conflicting public policy issues abound.” Wyatt v. McDermott, 283 Va. 685 (Va. 2012) (citing Bell v. Hudgins, 232 Va. 491 (1987)). The legislature has determined that “[t]he minimum number of signatures of qualified voters required for candidate petitions shall be. . . 1,000 signatures” “[f]or a candidate for the United States House of Representatives” Va. Code § 24.2-506(A)(2), and 10,000 signatures “[f]or a candidate for the United States Senate, Governor, Lieutenant Governor, or Attorney General”. Va. Code § 24.2-506(A)(1).
However, notwithstanding that “[s]peculative fear of future harm does not constitute an injury in fact sufficient to confer standing”, Sancho v. Dep’t of Energy, No. 08-17389, D.C. No. 1:08-cv-00136-HG-KS, (9th Cir. 2010) (citing Mayfield v. U.S., 599 F.3d 964 (9th Cir. 2010), during a “a once-in-a-century pandemic”, characterized as “threaten[ing] irreparable harm to an unknown (and unknowable) number of people”, and warranting that “the scope of [a court’s] review . . . must be limited to a determination of whether the [executive’s] actions were taken in good faith and whether there is some factual basis for [the Governor’s] decision that the restrictions he imposed were necessary to maintain order”, Opp. Brief, Hughes v. Northam, Civil Action No. CL20-415 (Russell Cy. Cir.) (quoting U.S. v. Chalk, 441 F.2d 1277 (4th Cir. 1971), the Courts of the Commonwealth had deemed it necessary to provide for an exception, see Omari Faulkner for Virginia, et al. v. Virginia Department of Elections, et al., Case No. CL-20-1456 (Richmond GDC. 2020), on appeal Omari Faulkner for Virginia, et al. v. Virginia Department of Elections, et al., Case No. VLW 020-8-024 (Richmond Cir. 2020).
In other instances, Courts in the Commonwealth have similarly determined “that Virginia’s signature requirements impose a substantial burden on. . . [at least some] plaintiffs’ First and Fourteenth Amendment rights as applied”. Constitution Party of Va, 472 F. Supp. 3d at 285, and, hence, this is not necessarily a case of first impression, as much as an extension of the controlling rules of decision. In that instance, the Court had “enjoin[ed] enforcement of the signature requirements as to the named plaintiffs”, modifying the requirements, such that it had “extend[ed] the deadline for the named plaintiffs running as candidates for the U.S. House of Representatives and U.S. Senate to August 1, 2020, at 7:00 p.m.”, (citing Va. Code Ann. § 24.2-507), and had mandated the Board of Elections to “lower the signature requirements for the named plaintiffs running as candidates for the U.S. House of Representatives and U.S. Senate to 35 percent of the total petition signatures required by Virginia Code § 24.2-506(A)(1), (2)”. Constitution Party of Va., 472 F. Supp. 3d at 285. But see Webb v. SBE, Case No. CL20-2459-00 (Richmond Cir. 2020); In re: Major Mike Webb, Civil Action No. 3:20CV734 (E.D.Va. 2020); In re: Mike Webb, No. 20-1997 (4th Cir. 2021).
Under the Civil Rights Act of 1866, “[a]ll persons. . . shall have the same right in every State and Territory. . . to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens”. 42 U.S.C. § 1981(a). Moreover, “[d]isparate treatment and disparate impact discrimination claims are separate and distinct”, Angelica De Los Santos v. Panda Express, Case No: C 10-01370 SBA (N.D. Cal. Dec. 3, 2010) (citing Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)). “’Disparate treatment’ . . . is the most easily understood type of discrimination”, because an actor “simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic].” Teamsters v. U.S., 431 U.S. 324, n. 15 (1977). And, Petitioner, by birth a Negro, and by profession of faith an evangelical Christian, in the present action invokes an application of the same rule that has been applied to similarly situated others in similar circumstances.
Available Record
Generally, reviewing courts “are courts of limited jurisdiction and the law presumes that ‘a cause lies outside this limited jurisdiction.’” Judicial Watch, Inc. v. Nat’l Archives & Records Administration, Civil Action No. 1:2010cv01834 (D.D.C. 2012) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994)[1], and generally, at least in noncontested cases, judicial review is “limited to the administrative record”, but in some instances a reviewing court may consider “whether the administrative record may be expanded by a remand to the administrative agency for additional fact-finding.” Home Bldrs. v. D.O.L, 481 Mich. 496 (Mich. 2008).
Nonetheless, just as, at any time, “pursuant to Federal Rule of Evidence 201, courts may take judicial notice of ‘‘matters of public record,’’ but not of facts that may be ‘‘subject to reasonable dispute’’,” U.S. v. Corinthian Colleges, 655 F.3d 984 (9th Cir. 2011) (citing Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001)) , in the Courts of the Commonwealth, “[a] court may take judicial notice of a factual matter not subject to reasonable dispute in that it is either (1) common knowledge or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”, Va. R. Sup. Ct. 2:201(a), such “notice may be taken at any stage of the proceeding”, Va. R. Sup. Ct. 2:201(b), and “[a] party is entitled upon timely motion to an opportunity to be heard as to the propriety of taking judicial notice”, Va. R. Sup. Ct. 2:201(a).
As averred in the Verified Complaint and Affidavit in Support, as of April 16, 2024, the day following the deadline for the first quarterly reports, Jerry Torres had emerged as a candidate, not yet reporting any receipts or disbursements, while the field of candidates seeking eventually to qualify for the November election included Petitioner, as well as the incumbent, Donald Sternoff Beyer, Jr. (D), Andrew Jackson Campbell (D), Heerak Christian Kim (R), Stephen Alan Leon (I), Adam Mustafa Sahebian (I), David R. Kennedy (I), Jeramy Lee Olmack (I), Gavin Proffitt (I), and Bentley Foster Hensel (I), as in evidence at Exhibit A.
“The Virginia Department of Elections validates the petition signatures”, and “[i]t may invalidate a petition if the petition does not comply with the requirements set forth in the Virginia Code”, Constitution Party of Va., 472 F. Supp. 3d at 285 (citing Va. Code §§ 24.2-506(A), 24.2-543(A)); and, hence, is in exclusive possession and control of all petition signatures submitted by candidates for the U.S. House of Representatives in Virginia’s 8th Congressional District (VA-8) in the present election cycle, as well as the historical record, pertaining to Petitioner, as well as similarly situated others.
According to one commercial source, regarding “[g]eneral election for U.S. House Virginia District 8”, “Incumbent Donald Sternoff Beyer Jr., Jerry Torres, Jeramy Olmack, David Kennedy, and Stephen Leon are running in the general election for U.S. House Virginia District 8 on November 5, 2024.” Editors, “Virginia's 8th Congressional District election, 2024,” Ballotpedia, https://ballotpedia.org/Virginia's_8th_Congressional_District_election,_2024 (accessed June 10, 2024). However, for primary source, official records, neither the Federal Elections Commission (FEC) nor Respondent Virginia Board of Elections makes publicly accessible or available the numbers of signatures presented by candidates nor the number that had been validated or invalidated when candidates fail to qualify for the ballot. Nonetheless, of official record, as of the present date, according to records filed with the FEC, the only candidates vying for election for the U.S. House of Representatives in VA-8 are Jerry Torres (R), Donald Sternoff Beyer, Jr. (D), Heerak Christian Kim (R), and Petitioner, identified as a Republican. Staff, “Candidates,” FEC, https://www.fec.gov/data/candidates/?election_year=2024&office=H&party=DEM&party=REP&state=VA&district=08&is_active_candidate=true&has_raised_funds=true (accessed June 10, 2024).
While no financial records have been submitted by Petitioner, the incumbent or Heerak Christian Kim associated with the effort to comply with the signature requirement under Va. Code § 24.2-506(A)(2), records submitted by Jerry Torres for Congress H4VA08414/C0087540, by Chris Marston, General Counsel for the Republican Party of Virginia (RPV), serving as Treasurer, on April 3, 2024, the last day for party candidates seeking to qualify for the primary, he had disbursed a sum of $25,512.75, purportedly from personal funds, in payment for services rendered by Marquette Enterprises, a Florida business, contracted for petition signature solicitation, presumptively completed before April 3, 2024, in a congressional district where even local reporters have observed that “[b]ookies probably wouldn’t even lay odds on the chance of Republicans picking up the 8th Congressional District seat, it seems so out of reach.” Scott McCaffery, “GOP challengers to Beyer hope to gain traction,” Arlington Sun Gazette/Inside NOVA, January 29, 2016.
Within Virginia’s Eighth Congressional District, it is widely acknowledged that “[i]n Arlington, Democrats hold almost all levers of power”, and “[t]he voters there are so solidly blue that they are among the Northern Virginians who usually provide the margin of victory for Democrats who win statewide.” Patricia Sullivan, “Arlington County Democrats continue to dominate region’s politics,” Washington Post, November 7, 2016. By quick calculations, the presumptive Republican nominee in VA-8, had consumed a total of 1,250 hours, or one hour per signature, which translates into 155.25 eight-hour workdays, or requiring approximately over five months to complete by one individual, while VA8GOP have only from the beginning of January to the beginning of April to complete this undertaking. Only records from Respondent Virginia Board of Elections, therefore, can complete the record on review regarding how many signatures, qualified and invalidated, to present a clearer picture for analysis regarding whether an undue burden is imposed upon candidates seeking to qualify for the November ballot in VA-8.
However, based upon the available record, a reasonable trier of fact might find a reasonable inference of suspicion where a candidate who had former sought a nomination in Florida in the last election cycle, like Jerry Torres for Congress H2FL15266/C00816496, might expend over $25,000, at the midnight hour, to claim the Republican nomination in a district identified as “Solid Democrat” in this election cycle, by Cook Political Report and Inside Elections, and as a “Safe District” by Sabato’s Crystal Ball, when questioning whether a reasonable person would repeat the same in a congressional district where analysts have claimed those seeking to run are “make-a-statement candidates, playing to a small far-right base in that district,” while “[t]he real race for Congress in this district is always the Democratic nomination, the outcome of which is tantamount to election in November.” Michael Lee Pope, “Taking on Beyer,” The Connection, May 18, 2022. See also Scott McCaffery, “Two candidates end up on Arlington School Board ballot,” Arlington Sun Gazette, June 9, 2021[2].
“Reproducibility [of results] and replicability [of methods] are fundamentally important aspects of the scientific method”, Robert Gerlais, Reproducibility and replicability in zebrafish behavioral neuroscience research, 178 Pharmacol. Biochem. Behav., pp. 30-38 (March 2019), doi: 10.1016/j.pbb.2018.02.005, Epub. February 23, 2018. In a rational inquiry, in evidenced-based reasoning, “[a]ctioni contrariam semper & æqualem esse reactionem: sive corporum duorum actiones in se mutuo semper esse æquales & in partes contrarias dirigi”, Isaac Newton, Philosophiae Naturalis Principia Mathematica, Reg. Soc. PRÆSES, July 5. 1686[3].
[1] “As a court with limited jurisdiction, we begin, and end, with an examination of our jurisdiction.” Id.
[2] “It likely will be more a coronation than an election on Nov. 2, but Democratic Arlington School Board endorsee Mary Kadera will still have a race to run.” Id.
[3] “To an action there is always an equal and contrary reaction: or the actions of two bodies between themselves are always mutually equal and directed in opposite directions.” Id.