Sussex Gop Files Supplementary Nomination Certificate for Pettyjohn

The Sussex Gop has filed the neccesary Supplementary Certificate of Nomination to place the name of Brian Pettyjohn on the Ballot for the 19th Senatorial District. The paperwork was filed on Thursday October 18th. I believe Pettyjohn has an excellent chance of being on the voting machine ballots on November 6th. Most election case law gives deference to giving the voters a choice. The language of Title 15 subchapter 3306 is sufficiently broad to allow for a determination that a vacancy exists in the candidate slot of the 19th Senatorial.

36 thoughts on “Sussex Gop Files Supplementary Nomination Certificate for Pettyjohn”

  1. I think we all anticipated this given the official withdraw of E.B. . I hope that we get a fair shake from DOE and B.P. is alowed to be added to the Ballot.

  2. Waterpirate the D’s are already playing games. They want to know what is EB’s incapacity. (or in their words how did the Sussex GOP determine EB was incapacitated.)

    It is funny because, Kenny McDowell is well aware enough that EB is no longer a candidate that he has been quoted in the Media that he will cover over EB’s name on the ballot. But now in order to get Brian P’s name on the ballot, the Sussex GOP has to jump thru another hoop which is only meant to hold EB up to more public ridicule.

    Now plenty of people here have had fun at EB’s expense, but he has withdrawn. Enough is enough.

    The law in question regarding withdrawal is very broad in defining incapacity. Incapacity can be physical, mental, or other. That language is wide enough to drive an 18 wheeler through.

    The Sussex Gop has some good attorney on this. My only suggestion is not to waste time. If, the D’s want to play around then, file suit in Chancery Court on Monday and we will have this done by next Friday.

  3. The letter was rejected by the AG’s office early yesterday afternoon and it will be in court by Monday. we are all hoping for the best on this one.

  4. As I stated, I thought the D’s would play with this. This is where Kenny McDowell lives.

    I will give the AG’s office credit for rejecting this early so we can file in Chancery Court on Monday. The AG’s office is wrong on this but that is OK by me. They have been wrong on so many things that one can’t keep track.

    The attempt by a Democrat led DOE and the Democrat DOJ to deny the voters of the 19th District their ability to make a choice is sort of like Obama saying that 4 Dead Americans “is not the optimum choice.”

  5. We kinda expected a democratic AG and administration to reject our first step but now the court will decide.

  6. Election issues should be decided by Superior Court. However, everyone knows that crucial issues can be decided by Chancery Court in a timely manner.

    I would file both in Superior Court and Chancery Court. Both Courts should decide for Brian Pettyjohn.

  7. We can only hope for speedy resolution, and a favorable outcome for B.P. and the voters in the 19th.

  8. If the story is Beau Biden is playing politics and interfering with the election that is a better situation than not to have tried anything.

  9. Who is better suited to determine if someone is incapacitated than the person who is incapacitated? All EB has to say is that, do to recent circumstances he finds it impossible to continue. He has therefore determined the incapacity.
    If the Dems want to play partisan politics with this, they risk that the perception will be that they have disenfranchised voters.

  10. He already has by his withdrawal and when they accepted it on grounds, they can’t reject our argument.

  11. I’ve got word that the lawsuit was filed on Friday. The wheels of justice are already turning.

  12. “the Sussex GOP has to jump thru another hoop which is only meant to hold EB up to more public ridicule”

    That “hoop” would be showing that he has been determined to be incapacitated. You guys who argue that it is satisfied by the candidate simply saying “I don’t want to run anymore” don’t seem to understand that allowing it for any reason – and that would amount to “whenever the candidate feels like it” – would pretty much render the law meaningless.

    Moseley has gone on about “WHO” determines what. It’s pretty simple. The court determines whether someone is incapacitated. Courts do that all of the time. Now, all kinds of folks such as doctors etc. can present testimony one way or another, but at the end of the day it is the court which determines whether the elements of a statute are satisfied.

    If EB’s argument is simply “I withdrew and don’t want to run anymore,” that’s not an incapacity – that’s a voluntary decision.

    But if Sussex had a real sheriff, there’s no question he’d get to the bottom of it. I personally have no idea what is the “big rumor,” but the argument that “there is a nasty rumor about me” isn’t an incapacitating condition either.

    EB has been a clown show for years. He fought to get on that ballot, and under the law it is not up to his whim to decide he wants off of it based on circumstances of which he has been aware back when he was trying to get on it.

  13. “Most election case law gives deference to giving the voters a choice.”

    Which voters chose to put Pettyjohn on the ballot?

    It was VOTERS who put St. Bodie on the ballot. But you are saying that “in deference to voters” the elected candidate should be taken off, and an appointed one put in his place? That’s not showing deference to the choice of any voters at all.

  14. @15 Nit,

    That certainly is true. Aside from the incapacitation issue, there is a philosophical question that is interesting. The (R) voters of the 19th selected their candidate. Regardless of the reason, that candidate is no longer a candidate. Now, regardless of who is offered up as a replacement, the (R) voters had no say in the matter.

    If there had been enough time, would a second primary be appropriate? Or is it sufficient that a SC GOP selected candidate be designated as the candidate? If so, why would a party hold a primary in the first place? Why not let the party committee select the candidate (or replace a selected candidate)? The DE Code requires a primary for major parties. But for a subsitute nominee, all that is required is for the party committee to declare a candidate incapacitated and file a certificate for a subsitute candidate.

    Actually, this makes me think that the incapacitation issue is actually more important than first glance. What if part committee doesn’t like who the (R) voters selected in the primary and conspire to subsitute a candidate they prefer simply by declaring the candidate who won the election as incapacitated? The party committee could actually thwart the will of the (R) voters unless some authority questioned the validity of the declaration that a candidate was incapacitated.

    I notice there are no provisions for a second primary and any subsequent changes are in the hands of the party committee. What if the will of the 19th (R)s that Bodwenweiser is their choice come hell or high water? Does it matter? Is it appropriate (in the absence of a primary) for the party committee to select a substitute in a metaphoric smoke filled back room? This is not an (R) question per se but applies to any of the major parties. Who utlimately decides who the nominee is?

  15. “If so, why would a party hold a primary in the first place?”

    Correct. The interpretation being offered on this forum is that the supplemental provision is simply a mechanism to appoint another candidate. It was obviously not intended to be one, nor was the statute intended to be “wide enough to drive an 18 wheeler through” as noted above. Judges are not generally that dumb.

    There is nothing about EB which has changed since the primary. Again, while I do not know the rumor, it seems the rumor is based on facts which, either true or false, the truth or falsity of the facts has not changed since the primary. Failing to vet a candidate does not subsequently become an incapacity. Unknown facts becoming known since that time does not materially change anything about EB’s condition or ability to do the job.

    So, perhaps someone can explain – what is it that has happened to EB since the primary which has changed? In other words, what new fact is there about him which has rendered him incapable of anything?

  16. @15
    Nitpicker, The Sussex DOE has already removed EB’s name based on Bodie’s communications with the Sussex DOE. Kenny McDowell has already been quoted as saying that Bodenweiser’s name will be covered up so that people will not mistakenly vote for him.

    Once again Nitpicker you demonstrate a total lack of reasoning and reading comprehension skills. I never said that “the elected candidate should be taken off.” The elected candidate has already been taken off.

    What I said is that now that the Republican candidate has already been taken off, the Republican Party should be able to fill the already vacant ballot slot with the nominee of their choice.

  17. “the Republican Party should be able to fill the already vacant ballot slot with the nominee of their choice.”

    That’s true, the party should be able to do that. I had a more philosophical question about whether the wishes of the (R)s in the 19th are reflected in the wishes of the party. Since it took a primary to determine the wishes of the voters, what substitutes for that process in the selection of a subsitute? Ideally one would want to have another primary, but given that there is no time, etc, is it just assumed that whoever the party comes up with is acceptable? Further, could the wishes of the voters be negated simply by the determination of the committee that a candidate is incapacitated.

    I’m not bringing this up regarding this particular case, but this case got me to thinking about the process. So this is just phisolophical musings and nothing directly to do with this election.

  18. Dave writes in #16 “What if part committee doesn’t like who the (R) voters selected in the primary and conspire to subsitute a candidate they prefer simply by declaring the candidate who won the election as incapacitated? The party committee could actually thwart the will of the (R) voters unless some authority questioned the validity of the declaration that a candidate was incapacitated.”

    Just because a statute is poorly written does not mean it isn’t the law.

    That is one reason why legislatures should be very, very RELUCTANT to pass laws.

    That is why when the Democrats propose a bill to do something warm and fuzzy, but the actual details of the bill are BAD, and Republican say “NICE IDEA, BADLY WRITTEN” the public should understand that a good idea can be badly written.

    Demanding that a good idea be well-written is the right thing to do.

    But once a statute is signed into law, pointing out that it is badly written or has problems DOES NOT STOP it from being the law.

    So whether you like the consequences or not, is not relevant to the validity of the law or its effects.

    If the law creates problems, that is why you should be very, very hesitant to have the legislature keep passing laws.

    Wouldn’t it be better to have the legislature pass 1/10th as many laws, but be very, very CAREFUL about what they write into statutes?

  19. Nitpicker writes in #17: “The interpretation being offered on this forum is that the supplemental provision is simply a mechanism to appoint another candidate. It was obviously not intended to be one, nor was the statute intended to be “wide enough to drive an 18 wheeler through” as noted above.”

    What is the basis for your claim that appointing another candidate is not what the statute is intended for?

  20. Nitpicker writes in #14: “That “hoop” would be showing that he has been determined to be incapacitated.”

    The statute says “WHEN IT SHALL BE DETERMINED that…”

    So if the DEGOP certifies to the DoE that they have determined that E.B. is subect to some “other capacity” that triggers the statute.

    Do they have to EXPLAIN their determination? Strictly speaking no.

    The statute does not say — which it easily COULD say and some statutes DO say — “When it shall be determined to the satisfaction of [the AG] [or a Court] or [the head of the DoE]”

    Nothing in the statute talks about someone else approving or disapproving the determination.

    Should the DEGOP give an explanation? I WOULD — just to be on the safe side.

    COULD a court be asked to review the validity of the DEGOP’s determination under the statute?

    Probably yes. So if the DEGOP acted to take someone off the ballot, and they object, they could probably ask a court to block it, and it would be a public relations fiasco.

    Do you think Eric Bodenweiser is going to file a lawsuit to contest the DEGOP putting Brian Pettyjohn on the ballot in his place? Don’t think so.

    Nitpicker further writes: “Moseley has gone on about “WHO” determines what. It’s pretty simple. The court determines whether someone is incapacitated.”

    Where are you getting that from? Aren’t you simply guessing?

    Nitpicker further writes: “Courts do that all of the time.”

    Yes, but this statute is not written like most normal statutes.

    Most statutes are written “Any person who shall not have attained his 18th birthday by the date of the election shall not be eligible to vote.”

    o The normal statute does not talk about someone doing the determining.

    o The normal statute simply asserts an objective fact — is the voter 18 or not? Yes or no

    o This is the kind of statute that courts decide all the time.

    But here the statute says:

    IF it is determined

    THEN the a new candidate may be appointed.

    The statute is triggered by “IF IT SHALL BE DETERMINED”

    The statute is NOT triggered by whether it is true or false that an incapacity exists.

    So if you want to go to court, the Court would probably ask “Did someone determine it? YES? Case closed.”

  21. Nitpicker writes in #14: “allowing it for any reason – and that would amount to “whenever the candidate feels like it” – would pretty much render the law meaningless.”

    WHY?

  22. “When it shall be determined” language is not unusual, Jon. It is simply a factual condition, and a court decides when a factual condition is satisfied by the evidence in non-jury matters. Even if we were talking about a psychological condition, the court would receive the report of a qualified professional and give it the weight it deserves (which would be pretty much determinative in that situation). But the point remains that phrases like “when determined”, “when proven”, “when shown” and conditions of similar import are not at all unusual. Likewise, thresholds are often stated such as “when shown by clear and convincing evidence” etc.

  23. “The statute is triggered by “IF IT SHALL BE DETERMINED”

    The statute is NOT triggered by whether it is true or false that an incapacity exists.”

    Lol, right Jon, a court is bound by any factual assertion made by anyone before that court. Sure.

  24. Nitpicker writes in #27:

    “The statute is triggered by “IF IT SHALL BE DETERMINED”

    The statute is NOT triggered by whether it is true or false that an incapacity exists.”

    Lol, right Jon, a court is bound by any factual assertion made by anyone before that court. Sure.

    Nitpicker, what you keep missing is the question WHO makes the decision under the terms of the statute.

    For example, there are many Federal statutes in which the President must make a determination. It doesn’t matter what the court says. Until the President makes the determination, the statute does not apply. A court has no power to make a determination that the President is empowered to make.

    For example, the President has refused to make a determination that China is a currency manipulator in violation of trade treaties.

    It is objectively true — undeniable — that China is cheating by manipulating its currrency.

    But until the PRESIDENT makes that determination as an official act, the Federal statute is not triggered.

    If you went into court and asked the Court to determine that China as an objective fact is cheating on trade treaties by manipulating its currency the court would say “No, that’s the President’s role. We’re not gong to usurp the role of the President in making that determination.”

    Nitpicker, a court is bound by the statute. Well, in theory, anyway. Many judges do what they feel like doing. But in theory.

    And what triggers the statute is that it has been determined that an incapacity exists.

    So the only fact the Court should consider is whether or not it has been determined that an incapacity exists.

    If it is shown to the Court that someone has made that determination, that is the end of the inquiry.

    If a determination has been made, the court’s opinion doesn’t matter. The court would say “That’s not what I would have decided, but I am not the one who makes the determination.”

  25. Nitpicker writes in #25: ” “When it shall be determined” language is not unusual, Jon. ”

    Yes, it is. A statute is NEVER written that way when it is the court that makes the decision. When someone other than the court makes the decision, THEN the statute is phrase along those lines.

    If it were up to the Court to make the decision, it would be phrased as an objective fact:

    “If a candidate is unable to serve….”

    Because no one else but the court is involved, the statute is phrased simple and to the point: “When a candidate cannot serve if elected due to some incapacity, then…”

    But Nitpicker, the legislature is not quite as dumb as you think.

    Those who wrote the statute are fully aware that:

    1) A court case can take a YEAR or longer

    2) If the party has already certified its nominee, there is VERY LITTLE TIME left before the election. (A supplemental certification would not be needed if the deadline hadn’t already passed for the original certification.)

    3) So those who wrote the statute knew that THERE ISN’T ANY TIME FOR A COURT CASE.

    Nitpicker, you talk about expert witnesses like a psychologist. That normally requires *MONTHS* of preparation for the expert witness, advance disclosure of their resume and their proposed report, their proposed testimony, depositions by oppositing parties, and extensive testimony at trial.

    If Delaware did what you imagine, the court case would still be dragging on 1 1/2 to 2 years later.

  26. Nitpicker just toss something out to see if you bite. It is obvious from the code that this is intended to be done quickly and it specifically gives the authority for the determination finding to the party.

  27. No, it does not “specifically [give] the authority for the determination finding to the party” It leaves that question somewhat nebulous. Can you give another example of when a political entity can determine the incapacity of an individual? Is there a precedent for this assertion?

  28. While it doesn’t “specifically” identify the party committee as the determining authority, I would think that if the party makes the determination, that determination would be accepted by the DOE unless it was challenged by the candidate. I say this because the party is the one that must submit the original nomination certificate and (presumably) they would be the ones that determine a candidate was capacitated in the first place and if they can determine capacitation then it would seem to me that they could determine incapacitation.

  29. “No, it does not “specifically [give] the authority for the determination finding to the party” It leaves that question somewhat nebulous. Can you give another example of when a political entity can determine the incapacity of an individual? Is there a precedent for this assertion?”

    There are plenty starting with a case in neighboring New Jersey when Frank Lautenberg replaced the incumbent U.S. Senator that was sitting under the cloud of scandal.

  30. Laffter

    “Oh my. You cannot cherry pick what court you want your case heard in- do you really believe that?

    Or do you believe you can file the same case in two courts simultaneously?

    WOW- a cas MUST be filed in the competant court of jurisdiction
    Chancery is not that court.”

    The Court of Jurisdiction for election cases is Superior Court. It is also where trials are held for criminal cases and it is not unusual for Superior Court to have a loaded docket.

    In those cases, where a decision must be rendered quickly and a trial of fact must be done, election cases, which are civil matters, can be heard in Chancery Court and this has happenned numerous times in the past. One can file cases in both Courts but the case will only be heard in one and this is a decision for the judges.

    The Bob Reed case had nothing to do with candidate eligiblity and there was no pressing deadline such as an election in 2 weeks. That is the case in this instance.

    As usual Laffter comments are made on a topic of which he has no factual knowledge. He then compounds his error by attacking me when he misunderstands the process.

  31. David, whether someone is “incapacitated” in an obvious and apparent sense is a determination that can be made pretty quickly. If a candidate is reduced to a vegetative state by a car accident, that’s not something that requires “experts” or “months of preparation”. A situation requiring that sort of evaluation is not one of incapacitation.

    “Hey, he left half his brain on a car windshield” is pretty simple to figure out.

  32. Nitpicker writes: “If a candidate is reduced to a vegetative state by a car accident, that’s not something that requires “experts” or “months of preparation”.”

    Yes, it does, it is because you have to authenticate WHO is giving that opinion.

    The question is not whether “someone” walks into court and offers a very simple conclusion. The question is WHO ARE YOU and WHY are you qualified to offer that opinion?

    Normally an expert witness has to be “designated” (placing the court and all parties on notice) at least 45 days before trial, which requires filing a summary of the expert witnesses report and qualifications.

    That means that more than 45 days prior to trial, the party has to locate an expert witness, give the expert time to study the matter, get on their calendar, and have them come to their conclusion. So you are at least 2 months out from trial, probably 3 months.

    That’s because the question is the person’s QUALIFICATION and unbiased creditbility to offer the conclusion.

    It is not just about whether a person can walk into a court and say something. The legal question is: Who are you? What are your qualifications? What is your past record? Do you always come to the same conclusion? Are you being paid to give the conclusion someone wants intead of an accurate conclusion?

    What takes the time is exploring the qualifications, bias, and credibility of the person offering the expert opinion.

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