Herring Asks Court to Toss Out Kanye’s Appeal

Kanye West makes his first presidential campaign appearance, July 19, 2020 in North Charleston, S.C. (Lauren Petracca Ipetracca/The Post And Courier via AP)

By Brian Carlton

September 11, 2020

Attorney General argues West’s legal team waited too long to appeal. All Virginia’s cities and counties already started printing ballots.

RICHMOND-Why did Kanye West’s legal team wait five days to appeal? That’s the question Virginia Attorney General Mark Herring raised Thursday, as he asked the state’s Supreme Court to toss out West’s request. On Sept. 3, a Richmond judge ruled that West didn’t meet the requirements to be on Virginia’s presidential ballot. His lawyers challenged that argument Tuesday, arguing Judge Joi Taylor made several errors in the ruling. 

Typically, legal teams appeal within 24 hours of the original verdict in a case like this. In their appeal, West’s lawyers argued that they couldn’t do that due to the Labor Day holiday. Instead, they “filed a notice of appeal the next business day, on Sept. 8.” However the Virginia Supreme Court was in session on Friday, Sept. 4, as justices met to reject a request by Gov. Ralph Northam to extend the state’s moratorium on eviction proceedings. Staff also appeared to be in, according to the court’s calendar. Herring’s filing points out Kanye’s team could have filed an immediate notice of appeal right after the ruling was handed down Thursday, but they chose not to. They also had an option to ask the court to stay its ruling at the time, but chose not to do that either. 

“Petitioners likewise failed to file a notice of appeal or a motion during the entirety of the next business day (Friday, September 4), despite having been clearly advised that that day was the deadline for finalizing ballots,” Herring wrote. 

Virginia Ballot Deadlines Approach

Regardless of why they waited, the delay caused a ballot-related problem. All cities and counties already sent ballots to the printer. 

This isn’t surprising. Virginia’s early in-person voting starts Sept. 18. In order to both have ballots for physical voters and supplies for the absentee requests, the Virginia Board of Elections previously ordered that localities “send their ballot proofs to the printer no later than September 4.” 

Representing the Board of Elections, Herring confirmed that in his Thursday filing. All 133 of Virginia’s cities and counties “have started the ballot-production process,” he wrote. He also pointed out the ballots finalized since last Thursday “have omitted petitioner West’s name from the list of eligible candidates.” In order to change that, cities and counties would have to start over, delaying early voting and potentially missing a federal deadline. 

The Virginia Code and federal law both require absentee ballots to be sent to voters no later than 45 days before an election. According to the Virginia Board of Elections, as of Sept. 10 more than 756,000 state residents requested an absentee ballot. To put this in perspective, that’s 110,000 more than the final total for 2016. Because this is already the second week of September, any further delay makes it harder to meet that deadline, Herring argued. 

“Given the radically increased demand for absentee ballots—and as the Commonwealth Respondents advised the circuit court—any changes that are made to the form of the ballot now will mean that . . . localities will be unable to mail ballots to voters 45 days before the election,” Herring wrote. 

That means at the very latest, election officials across Virginia have to send 776,000 absentee ballots no later than Sept. 18. Even then, it would barely meet the deadline. 

Did Kanye’s Campaign Meet Qualifications?

The legal fight stems from Kanye West’s campaign and their attempt to get him on the ballot. In order to be an independent presidential candidate in Virginia, you have to provide multiple documents. First, you need a petition from at least 5,000 registered voters, including 200 signatures from each congressional district. Second, you need signed and notarized “oaths” from 13 electors, residents who promise to cast votes in the Electoral College for the candidate, should they win the state. 

Both Matthan Wilson and Bryan Wright said West’s campaign tricked them into signing the elector’s oath. Neither man intended to vote for Kanye or serve as an elector. One other elector, Samantha Durant, also said the campaign tricked her into signing the form. Wilson and Wright filed a lawsuit, showing the campaign failed to notarize multiple other signatures properly. Judge Taylor agreed, removing the 11 electors from the list. With only two properly signed elector oaths, Kanye at that point no longer qualified as a candidate. As a result, Taylor ordered his name removed from all Virginia ballots. As of Thursday afternoon, the Virginia Supreme Court had not announced if they would hear West’s appeal or if so, when that would happen.

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