Potts Files Suit

Independent Russ Potts made his final play to get into Sunday's governor's debate between Democrat Tim Kaine and Republican Jerry Kilgore -- or stop it if he can't.

In a lawsuit his aides said was being filed in federal court in Charlottesville today, Potts seeks an injunction to stop the debate, alleging that his First Amendment rights would be violated if the exchange goes forward.

Click here to read a copy of the lawsuit.

In it, Potts argues that he is a serious candidate because he collected 24,000 signatures to get on the ballot and because of the campaigning he has done since then. He argues that University of Virginia professor Larry Sabato, the moderator of the debate, and Sabato's Center for Politics, the sponsor, are arbitrarily keeping him out.

"Exclusion of Russ Potts from the October 9 debate would cause him ... substantial and irreparable harm," the suit states, according to copies Potts aides gave to the other two campaigns, "in that the best possible opportunity to communicate with and seek the support of the largest possible number of voters would be provided to his opponents and denied to him."

The lawsuit asks the court for a restraining order or preliminary injunction that would keep Sabato and the center from holding any debate that does not include Potts.

Sabato has hired William G. Broaddus, a former Virginia attorney general, and the Richmond law firm McGuire Woods to defend him in the suit. Sabato said he was confident that Potts's lawsuit would fail and that the debate would go on.

That possibility was made more likely Thursday morning when both Kaine and Kilgore agreed to sign a no-use agreement ensuring that snippits of the debate would not end up in campaign commercials. A Kaine aide said Thursday that the Democrat did so "under protest."

"Students submit things to me under protest all the time, so that's ok," Sabato responded. "Looks like we have a debate."

Earlier in the morning, Kaine said Kilgore's insistence on a no-use agreement showed he was "fundamentally opposed to the principle of open government." But he said he caved to the demand to preserve the debate.

"We weren't going to give him any reason to get out of the only statewide televised debate," Kaine said of Kilgore.

In a statement, Kilgore campaign manager Ken Hutcheson said of Kaine: "His attempt at political gamesmanship has been laid bare, just as we look forward to unmasking his failed, liberal record for all Virginians to see on Sunday evening."

By Michael Shear |  October 6, 2005; 12:16 PM ET  | Category:  Misc.
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Let me get this straight...

Hutcheson realizes that he doesn't have a no-use agreement, so he tries to trick Elleithee into signing one. Elleithee then goes public with Hutcheson's email, so then Hutcheson threatens to back out of the debate. Sabato gets scared about a no-show, so he asks the Kaine campaign to sign a no-show agreement.

Kaine campaign agrees to sign, so Hutcheson bitches about gamesmanship.

Gamesmanship? Hutcheson appears to have a distinct talent for criticizing others for the very fault he possesses.

Note to Kaine campaign: it appears that a close monitoring of Hutcheson's aspersions will reveal telling clues about Kilgore campaign weaknesses.

Latest installment to this action packed adventure: Sabato still may face an empty debate room, if the Potts suit mandates third party participation. This in turn may force Sabato to arm-twist Hutcheson to allow Potts to appear. After all, Sabato did do the Kilgore camp a favor by getting the no-use agreement. Will Larry call in his chips with Hutcheson to show flexibility in kind?

Looks like it will be an interesting weekend!

Posted by: Binky | October 6, 2005 02:11 PM

Gamesmanship? Gamesmanship? This campaign is starting to feel like we are trapped in an Orwellian time-warp or Alice in Wonderland with Kilgore playing the Mad Queen of Hearts...

What's up is down, what's down is up and what's what is whatever Kilgore says it is....EXCEPT, Kilgore lies. He LIES, Mike. I'm gonna say this very slowly so everyone can get it: Who does Kilgore think he is?

If he is like this NOW, imagine what he would be like as Governor. He has behaved badly and were he not a man, I would ask his mother to set him straight. The ends do not justify the means.

This whole debate debacle is instructive in that it reveals Kilgore to be the coward many have long suspected him to be. Far worse than the "L" word you use to describe Kaine, is the "L" word that rhymes with "FIRE" and which must be used to discuss Kilgore. Now, I know why bailiffs in courtroom acros Virginia always say: May God save the Commonwealth.

I have NOT HEARD one word from Kaine whining about how he doesn't want to be on the same stage with Kilgore or Potts.

Kaine doesn't pass out decoder rings or concoct wild stories about Kilgore that aren't true. Some of the stories about Kilgore that are true -- like horrid conditions in state juvenile detention centers that are straight out of a Charles Dickens novel.

What gives, Mike? We know you do not hesitate to deliver a smackdown to Kaine, but when are you going to tell us what Kilgore did as George Allen's Secretary of Public Safety. How can you report about Kaine's tenure as Mayor of Richmnond and TOTALLY ignore what Kilgore did as George Allen's Secretary of Public Safety?

I know, I know...you broke down today and pointed out that Kilgore just doesn't seem to be getting any traction with his loose cannon antics that would make most people laugh -- EXCEPT -- Kilgore thinks he wants to be the next Governor of Virginia.

Posted by: Soccer Mom | October 6, 2005 04:08 PM

McGuire Woods? McGuire Woods? Of course it's a big firm and Broaddus actually served in office as a Democrat, but that firm is joined at the hip with the Kilgore camp.

Posted by: | October 6, 2005 04:26 PM

There is only factor that supports Russ Potts' presence in the debate and it is this: the Center for Politics receives state funding. A state-funded entity should theoretically offer open access to all candidates. Even that is a stretch, however; the funding is likely for the Center's educational program and is probably kept separate from funding used for the Center's role in the debate. The Center receives the vast majority of its funding from sources other than General Assembly appropriations.

Still, it is a crime that the Center must pay for legal representation to fight this frivolous lawsuit. What Potts could not achieve with his campaign he is trying to achieve in the courts.

His lawsuit is the the last gasp of an embittered politician who doesn't know when to withdraw gracefully and let the two serious candidates duel it out without his circus-like distraction.

Posted by: Not Barnie Day | October 6, 2005 06:01 PM

It's starting to unnerve me how negative Kilgore is getting in his ads toward Kaine -- "too liberal to be governor." A moderate is too liberal for him? I just hope people see through the chicanery and vote for the person with the better character.

Posted by: Mark | October 6, 2005 09:08 PM

OH! OH! Last weekend I spent eighteen hours straight writing a paper on this very subject. My prediction is that Pott's suit will fail. Although the debate is state sponsored, that does not necessarily make it a violation of Pott's First Amendment rights to keep him out. The sponsors of the debate can use their discretion to provide what they feel is the best service to the public, even if that means keeping Potts out (as long as they're keeping him out cause they feel he can't win and not because they disagree with his political views). It's the same reason why the National Endowment for the Arts doesn't have to give equal money to anybody that calls themselves an artist. You heard it here first folks!

Posted by: Thomas Jefferson | October 6, 2005 11:40 PM

Thanks, TJ, for trying to stick to the topic of the post. I think you will be proven correct.

Posted by: Not Barnie Day | October 7, 2005 07:21 AM

Slow down, Tom. Whoaaaa....Maybe, just maybe, Kilgore's people are afraid they are in danger of losing a vote or two to a seasoned Republican who has had just about all he can stand from knee-jerk Closet-Conservative who will do anything and say anything to land a vote?

If the Kaine people have no problem allowing Potts to be in the debate, then the problem has to be intra-familia, an issue for the Republicans.

What is it about Potts that makes Kilgore upset? Could it be...that Potts tries to be a Republican with a brain? Could it be that Potts never leaves home without ... his integrity? his decency? his honesty?

Could it be that Kilgore is made nervous by integrity, decency and honesty? Clearly, Kilgore is the one with the problem about Potts -- definitely.

Tom, are you ever ashamed of the way "kids" these days have distorted the dream of democracy that was brought forth on this continent more than 200 years ago?

You need to get as many people as you can to vote for Kaine on Nov. 8th -- otherwise, all the hard work that you and the rest of the fellows did, could go straight down the tubes.

Nov. 8th, 2005 -- You are registered to vote?!

Posted by: Sally Hemmings | October 7, 2005 09:06 AM

Whoa! I didn't mean to give the impression that I want Potts out of the debate, much less that I support Kilgore (perish the thought). Potts is a respected state legislator who thousands of virginians will vote for, I think they should let him in. All I was saying was that the First Amendment lawsuit was is probably going to turn out to be a loser. I've worked my tail off for Kaine these past few months and I think we have great shot on 11/8.

Posted by: | October 7, 2005 10:09 AM

Tom -- I am so relieved. I hope, as this race continues to flash by, that those inclined to vote for Potts will see that the spoiler here is Kilgore -- not Kaine.

Further, I hope that when it comes time to pull the lever on Nov. 8th that those folks who have seen the shameful way that Kilgore has treated a fellow Republican will throw their support to Kaine so that their message comes through loud & clear -- Kilgore lacks the ability to lead. If he had even a modicum of maturity and leadership skill he would have already embraced Potts' presence and demonstrated that his confidence in himself is such that he doesn't need to duck debates or hide from other members of his own party.

But, then again, that would require that he and his fratboy pals put those damn DECODER RINGS aside and grow up. I sure do hope Doug Wilder is paying close attention to Kilgore's latest gambit with the NRA -- my oh my ... what will the Wilderman do?

Posted by: Sally H. | October 7, 2005 11:54 AM

Sally...Potts has no integrity, no decency and no honesty. I'll debate you any where, any time, till the cows come home on those issues.


Posted by: David Burgess | October 9, 2005 10:29 AM

I was attending law school in Maine in 1974 when the 2 unremarkable major party candidates cut each other to shreds and in the last month of the race a dark horse independent (former "R") rose from less than 10% to 30% in the polls on election eve and won the statehose with 34% of the vote--Jim Longley was a pro-business moderate who brought enormous talent into a constipated state buraucracy in a short time. Clearly, a Potts solution would be a useful wakeup call both to Virginia and the national electorate. Having done some Election Law and debate law while the FCC yearts ago, I find Mr. Sabato's team's aggressive defense of a 2 candidate debate shamefully un democratic--especially for Virginia's legacy. Potts' media appearances and platform materials are coherent and I certainly don't mind a clear proChoice anti'"thumper" candidate. Maybe the prospect of impending doom as the Kilgore campaign overreaches to stamp out Kaine will drive Republican's with good survival instincts towards Mr. Potts.

Posted by: Michael | October 13, 2005 02:59 PM

Michael, you have no idea who you're talking about. Potts is a promoter and has been all his life. He promoted himself into is current seat by fooling his constituents into believing he was a right wing conservative. Immediately following the election, he jumped the left of Kaine. Simply put Michael, Potts will say anything in his professional promoter way to get votes. Fortunately, history shows he cannot be trusted. His history is now recorded at www.StopPotts.com. Those who really know Potts aren't fooled by his lies anymore.

Besides, all indicators show that center right politicians will still control the GA for at least a couple more sessions. Therefore, do you honestly feel that the GA will give a Potts administration a $4 billion tax increase? Get real. Voters will not sit still for another astronomical tax increase when we have a surplus. Without a tax increase, Potts plans are doom to fail.

Posted by: David Burgess | October 15, 2005 05:54 PM

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