Superior Court rules against Libertarians; McVay plans to appeal

When Will McVay, a Libertarian candidate for the 32nd District's seat in the General Assembly, filed to run in the Republican and Democratic primaries for that race, eyebrows were raised but the Department of Elections allowed it. A few days later, fellow Libertarian Brent Wangen, who is running for Congress, filed to run in the Republican primary and paid a filing fee of close to $3500. Again, the Department of Elections was surprised by the unusual procedure, but allowed it. Both Wangen and McVay were added to the Department's online listing of candidates, and local newspapers commented on their interesting strategy.

You see, fusion candidacies--by which a candidate appears on the ballot for more than one political party--are legal in Delaware, and a handful of other states. Not because the law recognizes them, but for precisely the opposite reason; the law does not expressly prohibit, or even mention, the practice. Therefore, it is legal, until the General Assembly decides to do away with it.

Obviously, the Republican and Democratic establishments were dismayed by these bold Libertarians' strategy. The two parties contacted the Attorney General's office (separately, of course) and requested that the fusion candidacies be disallowed. "Requested" is a mild way to put it; the parties threatened to sue if the fusion candidacies were not disallowed.

Granted, the law is vague when it comes to this issue (it is also vague about whether or not candidates are permitted to breathe while they campaign, but no one has attempted to stop them from doing that, yet), but would it not be better to allow Wangen and McVay to compete in the primaries this year, as the Department of Elections already accepted their Candidate Filing Forms and fees, and leave it to the General Assembly to clarify this point of the law in the next session?

It was by way of the media that the candidates discovered that their fusion candidacies had been disallowed at the request of the two major parties; according to McVay, the certified letter from the Department of Elections informing him that he had been booted from the ballot arrived yesterday. Really? The office couldn't have phoned? Whether one is or isn't on a particular ballot is something that a candidate needs to know during campaign season.

The Libertarians decided to settle the matter in court. McVay's first hearing took place yesterday at in Chancery Court, but Chancery Judge John Noble ruled that the court didn't have jurisdiction, and referred the case to Superior Court, where it was heard today.

McVay, representing himself, argued that

1. Though he filed for the primaries on July 6, he did not receive official notification of his removal from the ballot until July 19.
2. The Department of Elections included him on a list of primary election candidates available on its website.
3. The Republican and Democratic Parties, in requesting that McVay's triple candidacy be disallowed, claimed that he is not and has never been "affiliated" with the parties, despite the fact that he has been registered as a member of both parties in the past.
4. In Democratic Party of the State of Delaware v. Department of Elections of New Castle County, Judge Henry DuPont Ridgely ruled that a candidate's party registration is not relevant to the primaries in which he can participate.
5. The Department of Elections has allowed numerous fusion candidacies in the past, including eight in 2008 alone.
6. If minor-party candidates are not allowed to seek the nomination of one or more major parties (which is done through primary elections), but major-party candidates are allowed to seek the nomination of one or more parties (which is done through party conventions), then a double standard is being supported by the Department of Elections.
7. The 144th General Assembly considered HB 177 in 2007, which would have prohibited fusion candidacies, but did not pass the bill.
8. Therefore, his triple candidacy (and Wangen's double candidacy, by extension) should be allowed, based on precedent and the law itself.

The judge didn't buy it, and ruled against McVay. The new decision not only disallows the Libertarians' unusual fusion candidacies, but might prohibit all fusion candidacies in the future, including the type by which a major-party candidate wins the nomination of a minor party.

Said McVay in a statement released this afternoon, "We believe that this opinion is deeply flawed as Delaware has historically allowed fusion candidacies. A number of examples were cited in our arguments, just from 2008. The difference in this case is that this time the candidates of a minor party attempted to fuse with one of the major parties. Both the Democrats and Republicans filed motions to intervene in our case, jointly. Just when you thought the Democrats and Republicans couldn't agree on anything, they have demonstrated that they do very much agree on continuing their monopoly on political power in the State of Delaware."

He goes on to say that he will appeal to the Delaware Supreme Court, and asks supporters to help him cover the required filing fees, which total $480.