By: Canaan Suitt

On July 4, 2020, Kanye West tweeted that he was running for President of the United States. However, the following day CNN reported that Kanye had not taken any of the necessary steps to effectuate this plan – including filing paperwork with the FEC and getting on state ballots. In fact, by mid July West had already missed several states’ deadlines to get on the November ballot.

Fast-forward to July 16, and West had filed the FEC paperwork. On August 28, the Virginia Department of Elections confirmed that West was approved to be on the November ballot as an independent, having met Virginia’s two ballot requirements:

  1. Collect the required amount of valid petition signatures: 5,000 qualified Virginia voters total, with 200 qualified voters from each of Virginia’s eleven congressional districts; and
  2. Have thirteen pledged electors. The electors sign so-called Elector Oaths that must be notarized; electors are required by law to vote for the President and Vice President listed on the petition.

Trouble swiftly followed, however. As New York Magazine and other media reported as early as August 21, several of the thirteen Virginia electors were not told they were signing an Elector Oath for West, and were unaware that is what they were doing. “Holy guacamole. I’m certainly not supporting Kanye West” was one person’s reaction when journalists informed her she had signed up to be an elector for West.

Two electors from Suffolk, Virginia – Plaintiffs Matthan Wilson and Bryant Wright – brought a lawsuit in Richmond City Circuit Court to block West from being on the ballot. Plaintiffs alleged that West’s campaign had violated Virginia’s ballot access qualifications; their right to vote under Article I, Section 6 of the Virginia Constitution; and their right to free speech under the First and Fourteenth Amendments.

In their Complaint, Plaintiffs argued that at least eleven of West’s thirteen Elector Oaths were invalid. Of these eleven, Plaintiffs had evidence that three Oaths were obtained under false pretenses. For example, while riding his bike, Plaintiff Wilson had been approached by a West campaign representative. The representative asked Wilson if he would like to be an elector for the state, but did not tell Wilson he was committing to vote for West or any other candidate by signing the document.

An additional eight Oaths were invalid for other reasons. Five were notarized by another West elector, Bria Fitzgerald, who as an elector had a financial interest in the West campaign obtaining the required signatures. Specifically, Fitzgerald would be entitled to compensation of fifty dollars per day while discharging her elector duties. This financial interest was in violation of the Virginia Notary Act. Furthermore, Fitzgerald’s own Oath was invalid because the commission of the person who notarized her Oath had expired. Finally, two other Elector Oaths had improperly completed notary sections. In addition to all of this, news reports such as the New York Magazine article above indicated that some of these eight Oaths were also obtained under false pretenses. The table below summarizes the reasons for invalidity:

Elector Oath Reason(s) Invalid
(1) Matthan Wilson Obtained under false pretenses; Fitzgerald, an elector, was the notary
(2) Bryan Wright Obtained under false pretenses; Fitzgerald, an elector, was the notary
(3) Samantha Durant Obtained under false pretenses; Fitzgerald, an elector, was the notary
(4) Ashia McCrary Fitzgerald, an elector, was the notary; news reports indicate that Elector Oath was obtained under false pretenses
(5) Bria Fitzgerald Notary’s commission expired
(6) Marie Swider Fitzgerald, an elector, was the notary
(7) Kelsey Cupp Fitzgerald, an elector, was the notary
(8) Courtney Brown Fitzgerald, an elector, was the notary
(9) Sariah Cutler Fitzgerald, an elector, was the notary
(10) Sharell Hunter-Moore Improperly completed notary section
(11) Shaquille Saunders Improper completely notary section

 

Stating that “[t]he affirmative guarantee of the right to vote… means nothing if a candidate can qualify for the ballot based on fraud,” Plaintiffs argued that the eleven Elector Oaths should not count towards the required thirteen for West to be on the Virginia ballot.

The Circuit Court Judge, Joi Jeter-Taylor, agreed. On September 3, Jeter-Taylor ruled that the eleven Oaths were obtained by “improper, fraudulent or misleading means” and ordered the Virginia Department of Elections to not count them towards the requirement, thus taking West off the ballot.

That is where things currently stand for West, as Virginia is printing ballots for the start of absentee voting on September 18.

Against this fast-approaching deadline, West, represented by new lawyers, has appealed the lower court’s ruling to the Virginia Supreme Court, along with a Motion for Expedited Consideration.

In the Petition for Appeal, West’s arguments include that the Plaintiffs have no private right of action under the state’s election code; that there is no impingement of the Plaintiffs’ rights to vote or association; that mandamus cannot undo the Virginia Department of Election’s official act certifying West’s candidacy as mandamus is only prospective; and that the Circuit Court erred in expediting the hearing and giving relief in under forty-eight hours, thus depriving West the opportunity to mount a meaningful defense.

As of September 17, it is not known whether the Virginia Supreme Court will grant the appeal. For the time being at least, West will not be on the Virginia ballot in November.

 

 

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