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Location: Strasburg, Virginia

Friday, October 07, 2005

Potts loses in federal court; A1

By Garren Shipley
Daily Staff Writer

CHARLOTTESVILLE — A federal judge on Friday turned back an effort by independent gubernatorial candidate state Sen. H. Russell Potts Jr. to get into Sunday’s scheduled debate.

Potts, R-Winchester, sued the University of Virginia’s Center for Politics and its director, Larry Sabato, asking U.S. District Judge Norman Moon to stop this weekend’s debate if it doesn’t include the senator.

Potts and his supporters would suffer “irreparable harm” if Potts isn’t included in the debate, but the candidate was unlikely to win if the matter came to trial, Moon wrote, in an opinion issued late Friday.

“It is clear that a television appearance, side by side, with the candidates of the main political parties would boost plaintiff’s credibility and give him an opportunity to convey his message and publicly confront his opponents that he would not otherwise posses,” he wrote.

That could make the difference between winning and losing.

But “the court finds that [Potts] has essentially no likelihood of prevailing on the merits of his case,” he wrote.
In a statement issued late Friday, Potts characterized the ruling as a loss for Virginia voters rather than his candidacy.

“I am extremely disappointed that I will not be included in Sunday's debate. The real loser here is not Russ Potts, but all the citizens of Virginia who deserve the best from a governor — a candidate who will speak to the people from the heart and will answer forthrightly and directly all the tough questions,” Potts said in the statement.

“I entered this race on principle, and I filed this lawsuit on principle. I earned my way on that stage Sunday night.”

In arguments Friday afternoon, Potts was represented by Daniel A. Carrell, a Richmond attorney who has argued before the Virginia Supreme Court.

Virginia’s voters want Potts in the debate, he said, citing a July Mason-Dixon poll that found more than half of voters wanted Potts included.

Said simply, the First Amendment makes Potts “a constitutionally necessary party to [any debate] proceedings,” he said.

The case law surrounding the matter is complex and subject to interpretation, but in general, debates held by arms of the government — which includes Sabato and the center by virtue of General Assembly appropriations — have to include all candidates with “appreciable public support.”

Since the center is part of the state, the 15 percent standard set by Sabato is “a barrier raised by an organ of the state itself,” he said, and “unreasonable.”

Judge Moon pressed Carrell on what would be an appropriate standard for inclusion, asking several questions about how his court should define “appreciable support.”

Carrell hesitated briefly, before saying “5 percent, I think would pass constitutional muster.” Potts has repeatedly polled between 5 and 9 percent support.

The Potts campaign also argued that the center’s mission would be served by inclusion of Potts. Sabato’s center seeks to “inform the decisions of the body politic” through debates, he said, referring to a famous statement by U.Va.’s founder, Thomas Jefferson.

But “Mr. Jefferson wasn’t confronted with an hour of time on television,” said former Attorney General William G. Broaddus, arguing on behalf of Sabato.

The Supreme Court has held that debates, even those held in public facilities using taxpayer dollars, can exclude some candidates from the debate, provided that the standards used aren’t “narrowly tailored” to prevent one candidate from getting in and are “content neutral.”

Courts have gone over the issue time and again, and always come to the same conclusion, Broaddus argued.

“There is simply not one court ... that has held that a candidate has a right to squeeze in,” he said.

As to the matter of what constitutes “appreciable support,” Broaddus pointed to the fact that Potts was nowhere near the other two candidates in popularity.

His total of 24,000 signatures to get on the ballot may be impressive, but it reflects less than half of 1 percent of the electorate. Potts’ donors have given about 7 percent as much to him as second-place fundraiser Lt. Gov. Tim Kaine has raised.

But Judge Moon pressed Broaddus on the impact of including Potts.

“Maybe he would be at 23 or 24 percent if he was in this debate?” Moon asked, a question that Carrell seized on in his rebuttal.

“The best way to prevent Senator Potts from reaching 22 or 30 percent is to shut the door on him Sunday night,” he said.

In the end, Moon found that the debate was a public forum, but the 15 percent standard was reasonable.

“Although such selectivity may bar a large number of potential participants, it furthers First Amendment interests by encouraging the government to keep its property open ‘to some expressive activity in cases where, if faced with an all-or-nothing choice, it might no open the property at all,’” Moon wrote, citing a 1998 U.S. Supreme Court case.

Speaking afterward at the courthouse door, Sabato defended his choice of 15 percent and his decision to keep Potts out.

“This is the standard used around the country,” he said. The center has hosted two other debates, using the same standards of participation, including a gubernatorial debate in 2001.

Libertarian candidate William Redpath was excluded from that event on the same 15 percent standard, Sabato said.
For Potts, the polls made it an easy decision. “This is not a close call,” he said.

The entire episode was a “desperate publicity stunt by a desperate campaign,” said Kilgore spokesman Tim Murtaugh.
At the same time, Sabato said he’s not angry.

“This is politics,” said Sabato, smiling. “I don’t blame them for doing it.”

Election Day is Nov. 8.