Judge postpones hearing Osborne's election lawsuit

Independent state delegate candidate Michael Osborne will continue his fight to change how state officials certify candidate petitions even though today’s election will proceed with his opponent’s name still on the ballot as the official GOP candidate.

On Monday – less than 18 hours before the polls opened today -- Bristol Virginia Circuit Court Judge Larry Kirksey refused to hear Osborne’s request for an injunction that could have changed how voters in the Virginia House of Delegates’ Fifth District choose their next delegate.

“Certainly, the [way we issue an injunction] requires due process at the very least,” said Kirksey, who wanted to make sure the two parties named in Osborne’s lawsuit – Fifth District GOP Chairman Brandon Boyles and Virginia Board of Elections Secretary Donald Palmer – had enough time to prepare their cases.

State election rules require that candidates seeking a seat in the House of Delegates collect petitions from at least 125 registered voters who live in the district to get their names on the ballot. Any signatures that don’t meet these requirements are disqualified and do not count toward the necessary total.

But the rules for reviewing these petitions differ sharply for independent candidates and party-affiliated candidates, which Osborne said is unfair to independents and gives party-affiliated candidates like his opponent, Republican Israel O’Quinn, a clear advantage.

The state’s current election laws require local voter registrars to personally check each signature on an independent candidate’s petitions against their locality’s voter file to make sure the person who signed is a registered voter and lives in the district.

But the law simply requires that party-affiliated candidates present their petitions to the local party chairman – in this case Boyles – who is responsible for reviewing the petition signatures on their own. It does not dictate how thorough this review must be or give state officials any power to challenge it.

“There needs to be some rules that do not make a mockery of the system and the 125-signature rule,” Osborne said Monday as he accused Boyles and other state party leaders of performing inadequate reviews  of their candidates’ petitions before placing their names on the ballot.

That’s why the independent filed a lawsuit asking a judge to remove O’Quinn’s name from the ballot in today’s election and force the state to come up with “a standardized qualification process that can be checked to ensure fair and equal application of the law.”

But this lawsuit, filed Oct. 24, hit a few major snags early on, leading to Kirksey’s decision not to hear the case before today’s election – the results of which could make his claim against O’Quinn a moot point.

First, Osborne couldn’t afford a process server and had to rely on local sheriff’s deputies to serve the lawsuit to Boyles and Palmer. Because these deputies are sometimes swamped with other duties, Boyles was not served until Monday morning, while it was uncertain whether Palmer had been served.

Osborne’s second problem is that he did not request a public hearing for his lawsuit when he filed it. As a result, Boyles and Palmer were automatically given 21 days to respond before it could be heard in court. That time period also doesn’t start until after they are served.

  Realizing this mistake, Osborne immediately requested such a hearing for last week, but could not schedule it with Kirksey’s office until Friday. Kirksey agreed to hold the hearing, though he made it clear Osborne must give the two defendants five-days notice, or “sufficient notice,” so they could prepare.

“I realize your time is short, but you just filed your lawsuit two weeks ago,” Kirksey said as he ended Monday’s hearing without any arguments from Osborne or Boyles’ attorney, Terry Kilgore. Palmer did not have any representation at the hearing – a sign he may not have known it was taking place.

But Kirksey made one point clear before he left the courtroom when he told Osborne that he “would be provided an opportunity and a venue to argue the issues in [his] complaint.”

It just wouldn’t be Monday afternoon, the judge said.

Not wanting to comment on his chances at victory, Osborne said he would not challenge O’Quinn if his opponent wins today.

 He said he will, however, continue to represent independent candidates across the state and pursue his fight in court.

gmclean@bristolnews.com
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