COVID-19 Impact on Election 2020 in Virginia
As reported by Virginia Mercury, on March 17, 2020, the same day that Governor Ralph Northam issued Executive Order 53, amended March 20, 2020, municipalities conducting elections in May, were permitted to submit ballots by mail, and “A bill just passed by the General Assembly will allow 45 days of excuse-free early voting for the November election, allowing anyone to vote by mail in the presidential election. Northam is expected to sign that bill, which will go into effect July 1.”
The first case of COVID-19 infection in Virginia occured on February 28, 2020, but on March 13, 2020, four days before the emergency order, Mark Warner announced that he had successfully qualified to appear on the ballot for re-election in 2020, implicitly admitting that he had placed over 33,000 Virginians at risk of infection, along with his dedicated volunteers who donated their time, effort and energy to support his campaign, which, to that date, had raised over $7 million, to which one of the wealthiest men in Congress had not contributed even one dime. Warner ceremoniously cancelled all public events only after securing his position on the ballot.
Don Beyer, despite being very critical of the President regarding his failures in getting ahead of the COVID-19 pandemic crisis, on January 14, 2020 was conducted training for his volunteers to solicit signatures so that he might qualify on the ballot, but no volunteer received any instructions on avoiding infection or infecting others with the novel virus.
And, on March 27, 2020, ten days after the enactment of the emergency order, Don Beyer announced his victory in the Democrat primary, in which he ran unopposed.
Like Beyer’s volunteers, Major Mike Webb must solicit at least one thousand valid signatures to qualify to appear on the November ballot, and has a deadline of June 5, 2020 at 7:00 p.m., but, despite the fact that the Virginia State Board of Elections is doing everything it can to ensure that the elections proceed as scheduled, they have refused to make any accomodation to independent candidates who must attempt to collect signatures during a pandemic crisis, after even the Governor has issued an additional lockdown order, recommending that all citizens shelter in at home, and not go out in public, to avoid infection.
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Addendum to Original Complaint
Revised Policy Regarding Treatment of “Nonessential” Faith Groups
In any campaign, it is rare to find results during the process of running for office, but, our action in the Circuit Court for the City of Alexandria has compelled Governor Ralph Northam and Health Commissioner Norman Oliver to run their executive order by the legal department, again.
On March 24, 2020, the guidance regarding Executive Order 53 was published with Frequently Asked Questions, including one specifically referencing places of worship, which were not specifically referenced in the order, which stated, ““[p]laces of worship that do conduct in person services must limit gatherings to 10 people, to comply with the statewide 10-person ban,” essentially distinguishing places of worship from essential businesses, which are not defined as a “gathering” for purposes of the law, and which, under the the original guidance were granted the liberty to develop procedures consistent with social distancing guidance to avoid infection.
And, if it was funny when Federal Express claimed that the Vatican was closed for Christmas, the Court actually claimed that they required a more definitive address to serve process upon the Governor, and, sufficient delay, permits him plausible deniability to claim that the most recent policy explanation was developed wholly independently of legal action, under claim that he did not receive a complaint, a familiar argument from litigation against the Arlington Public School Board on the renaming of Washington-Lee High School.
So, for now, we have had an opportunity to fire a shot across the bow, and we can claim a preliminary victory in Jesus, because Governor Northam has blinked. And, we will be filing a notice of hearing on a motion for the court to grant an injunction because the policy still fails to pass constitutional muster, under the Free Exercise Clause or the under the rationale for which Planned Parenthood fought in Planned Parenthood of Southeastern Pennsylvania v. Casey and in Whole Women’s Healthcare v. Hellerstedt, regarding ‘an undue burden.”
Motion for Summary Judgment/Temporary Injunction
I don’t know why we never cover this in any candidate training courses, but, as Rangers say: improvise, adapt and overcome; and, below, you will find a complete copy of the Emergency Motion for Summary Judgment, or, in the Alternative, Temporary Injunction.
- It is the epitome of disparate treatment to permit some candidates from January 2, 2020 to June 5, 2020 to gather petition signatures, even while a pandemic pathogen hits the United States on January 12, 2020, and then close the door on everyone else, immediately after one collects over 33,000 signatures, who then goes on to cancel all future public campaign events, in a $10 million re-election campaign to which he has not contributed one dime, and then goes on to introduce to Congress a bill that will enable his voters to vote for him by mail in a pandemic crisis.
- If an emergency public health order creates only two classes of individuals, essential and not essential, it is vague enough to tell everyone who does not have a business that fits neatly into those cubby holes to just figure it out, and try to be safe when you do it—practically deeming you essential, but it is the epitome of discrimination to target one group, not on the nonessential list and to subject them to the most restrictive regulations, be that a place of worship or not.
- Thanks to the folks who want abortion on demand, and expansion into infanticide markets, the rule on government health regulations is that if you make a law requiring anyone to perform or omit some action, you need to be very specific as to how, exactly and directly, that regulation actually prevents the harm, and ten people, ten hundred people or ten thousand people has not in any medical literature been determined to be a magical number to ward of COVID infection.
- If you are a Christian Democrat, wondering how anyone with faith could possibly vote for Donald Trump, you need to know that in Virginia, your Governor, decreed a policy that, under the Free Exercise Clause has determined that whatever it is that you think you do in your church, it is neither essential nor the product of a sincerely held faith belief.
Memorandum of Law in Support of Motion
In Marcantonio v. Dudzinski, 155 F. Supp. 3d 619 (W.D. Va. 2015), it was jurisprudentially established, as a matter of law that:
“Under Virginia law, the elements of a common law civil conspiracy are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff” through an overt action done pursuant to the agreement. William v. AES Corp., 28 F.Supp.3d 553, 574 (E.D.Va.2014); Skillstorm, Inc. v. Elec. Data Sys., LLC, 666 F.Supp.2d 610, 618 (E.D.Va.2009). There must also be an underlying tort committed. William, 28 F.Supp.3d at 574.
There is no question but that the Chinese Communist Party formed at least an agreement to accomplish an unlawful purpose by unlawful means, which has resulted in damage to multiple persons and the United States, and
“[O]nce the conspiracy has been established, the government need show only ‘slight evidence’ that a particular person was a member of the conspiracy. Id. at 175. Of course, “a party to a conspiracy need not know the identity, or even the number, of his confederates,” U.S. v. Elliott, 571 F.2d 880 (5th Cir. 1978) (quoting U.S. v. Andolschek, 142 F.2d 503 (2d Cir. 1944).
Moreover, under U.S. v. Heard, 709 F.3d 413 (5th Cir. 2013),
“[A] defendant is presumed to continue his involvement in a conspiracy unless he makes a substantial affirmative showing of ‘withdrawal, abandonment, or defeat of the conspiratorial purpose.’” In order to show withdrawal, “the defendant must show that he has committed affirmative acts inconsistent with the object of the conspiracy that are communicated in a manner reasonably calculated to reach conspirators.” Mere cessation of activity in furtherance of the conspiracy is not sufficient to show withdrawal.
And it is abundantly clear in the record of evidence that neither the Chinese Communist Party nor any of Respondents have, to date, even suggested any “affirmative acts inconsistent with the object of the conspiracy that are communicated in a manner reasonably calculated to reach conspirators,” id., nor any other party.
It is well-established that “mere acquiescence or silence or failure of an officer to perform a duty does not make one a participant in a conspiracy unless he acts or fails to act with knowledge of the purpose of the conspiracy ‘and with the view of protecting and aiding it,‘ Luteran v. U.S., 93 F.2d 395 (8th Cir. 1937) (quoting Burkhardt v. U.S., 13 F.2d 841, 842 (C.C.A. 6), and at least to a culpable standard of gross negligence, both the Chinese Communist Party and Respondents have satisfied this element.
WHEREFORE, for the reasons stated above, unless the Constitution and its established procedures for conducting democracy in an American republic have been transformed also into a nonessential business, during pandemic times, Petitioner is, at a minimum, entitled, under those laws, a grant of temporary injunctive relief, if not a grant of summary judgment.
Order on Motion for Temporary Injunction
On today, April 15, 2020, after repeated attempts to quash the challenge to Executive Order 53, dated March 17, 2020, and amended March 24, 2020, the Circuit Court for the City of Alexandria denied a motion for temporary injunctive relief, as well as chose not to exercise its prerogative to move, sua sponte, for summary judgment, having determined that the claim would not prevail on the merits, but has continued the matter for hearing on July 13, 2020, over one month after the deadline for obtaining at least one thousand valid signatures to qualify for the November.
The Court, in a rather detailed order, makes several intriguing findings, including finding it dispositive that the Sheriff, which it presented a praecipe to serve all parties upon commencement of the action, has, to date, failed to perfect service of process, dangerously close to impacting equal protection under color of law, especially upon a federal question, but goes further to suggest that the laws of the Commonwealth which do not require either appearance or response from the parties in the instance of a petition for temporary injunction, akin to a matter brought in the General District Court for issue of a protective order in an instance of domestic violence, is fatal to the Petitioner in issue of granting injunctive relief.
The Court, operating under new procedures because of a pandemic crisis, finds that a candidate seeking to qualify for the November ballot operates in a vacuum, isolated from a global tragedy, and operating under an emergency order, and has no impact upon that privilege, granted under law, in collecting at least one thousand valid signatures before June 5, 2020, even though voters require the allowance of 45 days to report to a precinct to cast their votes for candidates who have already qualified for the ballot. Apparently you actually have to be Superman to run for Congress in the Commonwealth, and all others need not apply.
Moreover, with regard to faith and worship, the court finds that a Superman Candidate, an Essential Business and even a golf course can employ their best judgment as to how to manage gatherings of ten or more, but a pastor or faith leader needs to be told, like the statutorily determined “non-essential businesses” they cannot have any “social gatherings,” which, under the the Free Exercise Clause analysis, means that whatever they did on live streams on Easter Sunday was not a devotional practice of religion arising from a sincerely held belief.
But even far more interesting is the Court’s determination that the Texas legislature went too far in requiring that a medical doctor have admittance privileges at a hospital at least 30 miles away from an abortion facility, and in determining that “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers,” but the magically infectious qualities attendant to gatherings of persons ten or more, even though in other states that number has varied considerably, finds an essential nexus, rationally related to an infection between persons resulting from being sneezed or coughed upon by an infected person, symptomatic, or “asymptomatic,” or by coming into contact with a surface upon which these droplets, with no airborne capability, like the measles virus, the most infectious virus that can persist in the air in an enclosed space out to at least two hours, and, aboard the Vaandam cruise ship, CDC researchers discovered that these droplets, not necessarily on persons, with or without a mask, but on a variety of surfaces, can remain viable for at least 17 days.
Under the laws of Virginia, there is an opportunity for an interlocutory appeal of this clearly erroneous ruling, which Petitioner intends to notice and prepare for argument on appeal.
Emergency Pre-Designation of National Security Expert Witness
Petition for Writ of Error Coram Vobis
On April 15, 2020, the Circuit Court for the City of Alexandria denied the motion for temporary injunctive relief, and docketed the hearing on the substantive matter for July 13, 2020, which effectively would have left us no opportunity to gain the extension for qualifying on the ballot, since the original emergency was scheduled to end on July 10, 2020, five days after the petition deadline in a pandemic crisis.
A pro forma notice of interlocutory appeal was filed, but a decision from the Supreme Court would probably not arise until even later than the current hearing date; so, we were able to take advantage of the fact that none of the Respondents had entered an appearance in the case, and are still evading the Sheriff for service of process, which is technically obstruction of justice, a felony, punishable by fine and/or up to 20 years in prison, and the same way that the FBI finally nabbed Al Capone—even though they say it was tax evasion in The Untouchables movie. That did not come until after they were able to tuck him a way in a cell.
So, we launched a two-prong attack to jumpstart the stalled litigation, filing an affidavit of service with the Virginia Secretary of State, which would provide the deadbeat defendants an opportunity to respond to the summons no later than May 15, 2020, the date upon which Ralph says he will reopen the state, but this filing, citing error in the April 15, 2020 decision, but prompted by the decision of the Virginia Department of Health to begin erasing evidence, another felony, may get us a favorable result before then.
Petition for Leave of Court to File Brief Amicus Curiae in Hughes v. Northam
Brief Amicus Curiae in Support of Motion for Temporary Injunction in Hughes v. Northam
Affidavit to the Commonwealth Attorney in Support of Issue of an Information (6 Counts)
Petition for Writ of Mandamus to Compel VDH to Disclose the Undergraduate Degree Conferring Institution for State Health Commissioner M. Norman Oliver
Second Petition for TRO Based on Omari Faulkner for Virginia “One Third” Rule and Reply To City of Alexandria Demurrer
Motion for Temporary Restraining Order on Executive Order 63 Mandating NonMedical Grade Facial Coverings in Public and Making Wearing of a Medical Grade Mask a Felony
Memorandum in Support of Motion for Temporary Restraining Order (TRO) Regarding “Facial Coverings”
Petition for Temporary Restraining Order and Writ of Mandamus (Richmond Circuit Court)
Affidavit in Support of Petition for TRO and Writ of Mandamus
Motion for Temporary Restraining Order and Writ of Mandamus Against Virginia Board of Elections
SUPPLEMENTAL RESPONSE TO CITY OF ALEXANDRIA AND JUSTIN WILSON’S DEMURRER IN VIEW OF U.S. SUPREME COURT “DACA” DECISION
Petition for Writ of Error Coram Vobis (Richmond Circuit Court)
E.D.Va. (Richmond) As Applied Challenge to Facial Masks at Polling Places and Places of Worship
Praecipe for E.D.Va. Facial Coverings Challenge to Task U.S. Marshals to Perfect Service of Process