Wednesday, May 24, 2006

Apparently, the panel indicated that it was willing to adopt Senator Cuccinelli's argument that the party suffers constitutional harm from the open primary statute even as he spoke those words. The panel signalled its willingness to adopt that argument five minutes after Senator Cuccinelli (who went first) opened his mouth. Nevertheless, Mr. Stuchell never addressed the merits, even when asked by the panelists, and repeatedly impaled himself on the timeliness argument the court all but openly told him they did not care about. Indeed, the report says Judge Goodwin told Mr. Stuchell at one point that he "didn't care" about the filing deadlines to which Mr. Stuchell was clinging as if they were lead life preservers. Moreover, Judge Goodwin asked, roughly, "So you agree that they have a right to a closed primary, but that your statutory system just doesn't give them any real opportunity for judicial remedy?" And Mr. Stuchell replied, "The statutory system gives them the opportunity for judicial remedy if they sue after March 2007, just not now."

Mr. Stuchell at no time made any effort to distinguish the case from Jones, even though the open primary system in Virginia is readily distinguishable from the California blanket primary system at issue in that case. For example, Mr. Stuchell never pointed out that Virginia has no party registration, so the Commonwealth has no mechanism for identifying some would-be Republican primary participants as Democrats and excluding them from participation. In fact, Mr. Stuchell apparently conceded the merits completely and merely argued that, because Senator Cuccinelli had brought an untimely suit, his clients were not entitled to relief.

Fortunately, the AG's Office did defend on the merits in the briefs submitted, but the report indicates that Senator Cuccinelli should be cracking the champagne bottles because he's going to win 3-0; the report indicates that when Senator Cuccinelli rose for his rebuttal, all the panelists leaned forward, glowingly enraptured with him. The court is likely to reverse Judge Hudson's dismissal for standing, and is likely to enter judgment in Senator Cuccinelli's favor. What that means for Virginia election law is unclear, because it will depend on the remedy crafted by the court.*** But one thing is sure: if the description of the oral argument is accurate, and I have every confidence in the minion who submitted it, the case was not lost on the points of law but on the poor quality of counsel defending the Commonwealth. The recording of the argument, when it arrives in a few weeks, should give me additional insights. (So stay tuned.)

posted by Shaun Kenney | 5/24/2006 02:21:00 PM | 0 comments

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