THEIR VIEW: The real culprit in the Keith Judd case
News Service May. 15, 2012, 2:00pm
By PATRICK MORRISEY
HARPERS FERRY -- All around West Virginia, people are asking: how can a felon run for president, but remain ineligible to vote?
While many blame the West Virginia Secretary of State for this national fiasco, she is not the only elected official with culpability.
The fundamental problem with Keith Judd's ability to easily access the ballot lies both in the lack of specificity of the West Virginia election code and the inability of Attorney General Darrell McGraw to provide the Secretary of State and the Legislature with legal strategies to make it very difficult or practically impossible for a felon to run.
The attorney general is the chief law enforcement officer in the state and should have proactively identified and sought to fix this and other basic election law problems a long time ago.
Let's start with some threshold issues.
The U.S. Constitution establishes the qualifications for an individual to run for president. It requires an individual to be a natural-born citizen, at least 35 years of age, and a resident of the United States for 14 years.
Presumably, Keith Judd met these qualifications.
But this doesn't have to be the end of the story. Since the Constitution arguably does not dictate the rules under which a state must run a presidential election (the Constitution discusses only the qualifications for an individual to serve), such power is "arguably reserved to the states" under the 10th Amendment.
Indeed, states have latitude to establish the time, manner, and method of holding this election.
This means the Legislature could have created more rigorous ballot access requirements for individuals running for president, including felon Keith Judd.
Such rules might have included requiring a certain number of signatures on a petition, or a physical-presence certification process.
These rules would need to be crafted in a manner to overcome judicial scrutiny.
Of course, interpretations of relevant provisions of the Constitution, case law, and the West Virginia code are legal issues.
As such, while there is a role for the secretary of state in this process, the attorney general bears the ultimate responsibility for serving as the state's chief election lawyer and issuing legal opinions about interpretations of law.
Unlike the attorney general, the secretary of state has a ministerial function that limits her discretion. The attorney general should be leading on this issue and counseling the secretary of state and the Legislature about how to avoid such an embarrassing problem.
He is the state's chief lawyer after all.
An attorney general must be competent in election law and identify the ambiguities in the state code that place our state's reputation at risk. A competent attorney general would not allow crisis after crisis to occur in our electoral process.
Confusing, inadequate, or inconsistent areas of the state election code and regulations should be addressed in advance of: 1) a vacancy for governor; 2) disputes over state Senate residency requirements; and 3) when a felon files to run for president.
The West Virginia code must also be clarified to ensure that one constitutional officer -- the attorney general -- possesses the power to enforce election law rules and violations and bears official responsibility to solve problems before they are sent to the courts.
Senate Judiciary Chairman Corey Palumbo has indicated that he plans to focus on clarifying some of our state's election laws this week during legislative interim meetings. That's a good idea.
It would also be helpful to draft legislation that will ensure that the attorney general's office becomes more intimately involved in election law decisions in the first place.
In my campaign for attorney general, I have proposed significant reforms to the state's election law enforcement process. Perhaps some of those commonsense ideas could be advanced during the next session.
West Virginia is now the brunt of unflattering jokes about how we run our elections.
This is unacceptable, but not surprising because of the confusion in job duties between two of our state's constitutional officers.
In the final analysis, the secretary of state is not an attorney and should not be viewed as the state's principal election lawyer.
The election law function clearly rests within the office of attorney general.
Isn't it time we clarify the roles of these offices so that we can proactively solve problems before they rise to the level of a Keith Judd fiasco?
With just a little bit of planning, we can avoid constant election law sideshows.
Morrisey, who lives in Harpers Ferry, is the Republican candidate for attorney general.
EDITOR'S NOTE: This commentary originally appeared in the Charleston Daily Mail.