- The Washington Times - Tuesday, January 3, 2012

The office of Kenneth T. Cuccinelli II insisted Tuesday that the Virginia attorney general does not have a conflict of interest in a high-profile lawsuit over the state’s ballot-access law despite his having openly criticized it.

Mr. Cuccinelli, a Republican, drew almost immediate national attention over the weekend when he threw his support behind legislation to change the law and open the state’s March 6 GOP presidential primary ballot to candidates who were unable to qualify. Former Massachusetts Gov. Mitt Romney and Rep. Ron Paul of Texas are the only candidates who were officially certified.

Mr. Cuccinelli had made well known his opposition to Virginia’s stringent ballot-access requirements. But on Sunday, he walked back the remarks, saying he would support changing the law for future elections only.

The flurry of comments came around the time Texas Gov. Rick Perry filed a lawsuit in federal court last week against the chairman of the state Republican Party and members of the Virginia Board of Elections, charging that the law requiring signature gatherers to be registered or qualified voters in Virginia is unconstitutional. As attorney general, Mr. Cuccinelli is statutorily obligated to defend the board.

During a hearing Thursday, U.S. District Judge John A. Gibney Jr. directed Mr. Cuccinelli to provide a three-page statement Tuesday on any conflicts of interest in the case, given his public comments on the law.

Mr. Cuccinelli’s office submitted the statement, arguing in it that his comments favoring the bill were policy statements and that Virginia’s representation would not be limited in the case since a statute’s merits are not tied to its constitutionality.

“It has been the consistent policy of the Office of the Attorney General in this administration to defend all defensible statutes against constitutional attack without regard to policy preferences,” state attorneys in Mr. Cuccinelli’s office wrote.

The lawyers said the only way for a government agency to hire special counsel is by asserting the attorney general’s office cannot provide the service or if the attorney general’s office declares a conflict of interest itself. A conflict can be waived if a lawyer thinks he or she can still provide competent representation and if the defendants — in this case, members of the state Board of Elections — agree.

“The question I think the judge is getting at is, he wants to be sure there’s vigorous representation, and I think that’s a federal judge’s duty to ask that,” said Carl Tobias, a professor at the University of Richmond School of Law. “Is there some question in the mind of the public whether he is fully representing the interests here where his preference — stated — is to change the law? I guess it’s for the judge to resolve.”

In a brief filed Tuesday, the state argued that Mr. Perry, having not turned in the 10,000 valid signatures needed to qualify for the ballot, lacks standing and also fails to state a claim where relief could be granted.

Since the lawsuit was filed last week, the campaigns of former House Speaker Newt Gingrich, Rep. Michele Bachmann of Minnesota, former Sen. Rick Santorum of Pennsylvania and former Utah Gov. Jon Huntsman Jr. indicated they would file a joint motion to intervene in the case.

The messy ballot-access situation to some extent has split the state GOP into two camps. One side thinks that regardless of the failure of many campaigns to turn in enough valid signatures, having just two candidates on the ballot would deprive Virginians of voting for the candidate of their choice.

But the other camp, which includes Gov. Bob McDonnell, Lt. Gov. Bill Bolling and now Mr. Cuccinelli, argues that it simply wouldn’t be fair to Mr. Romney or Mr. Paul to switch courses midstream.

Gary C. Byler, a longtime Republican activist and chairman of the 2nd Congressional District Republican Committee, called the candidates who did not turn in the proper number of valid signatures in on time “a bunch of whiners for no reason.” He also took issue with Mr. Gingrich, who likened his campaign’s failure to secure a spot on the Virginia ballot to Pearl Harbor, in that it was an unexpected setback, but one from which he pledged to recover.

“It’s just like Pearl Harbor,” Mr. Byler said, “if by that you mean there was a 25-year rule outlining the attack on Pearl Harbor. Any of these candidates could have made 20 minutes worth of phone calls and gotten the matter taken care of.”

“You want to be president of the United States, you ought to be able to master a few simple campaign rules,” he said.

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