Herring Is Moonlighting in Election-Law Litigation

Mark Herring: busy man or busybody?

by Emilio Jaksetic

This year Attorney General Mark Herring has joined legal filings  in court cases involving election law disputes in six other states. This is strange because legal disputes about the election laws of other states: (1) are not within his jurisdiction or authority, (2) have no legal effect on Virginia or its elections; and (3) set no precedents that can bind or limit a Virginia court interpreting Virginia law.

Under the U.S. Constitution, Article I, Section 4, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ….”  And, the election laws pertaining to state and local elections fall under the relevant provisions of each state’s constitution and statutory laws. So, disputes over the election laws of other states have no bearing on Virginia’s election laws. Furthermore, nothing in the Virginia Constitution or the Virginia Code gives Herring any duty or responsibility for getting involved in legal disputes about the election laws of other states.

Nevertheless, press releases from the Office of the Attorney General show that he has joined in the filing of amicus (“friend of the court”) briefs in lawsuits concerning the election laws of the following states:

Florida (August 3, 2020)
Texas (September 28, 2020)
South Carolina (October 5, 2020)
Mississippi (October 8, 2020)
Minnesota (October 20, 2020)
North Carolina (October 26, 2020)

Although the Attorneys General of other States joined those amicus briefs, their doing so did not change the fact that Herring lacks any duty or responsibility with respect to election law disputes in those six states.

When it comes to state election laws — which are clearly the responsibility of each state — such amicus briefs by out-of-state attorneys general are the legal equivalent of a nosy neighbor giving unsolicited advice about how you should live your life and run your household.

Furthermore, Herring’s joining amicus briefs in out-of-state legal disputes that have no effect on Virginia or its citizens has the negative consequence of opening the door for the Attorneys General of other States to follow Herring’s example and file amicus briefs in Virginia litigation involving matters that concern only Virginia or its citizens. I doubt most Virginians would appreciate Virginia courts receiving unsolicited court filings from the attorneys general of other states with their opinions about merits of Virginia state law in litigations where those other states have no legal interests at stake.

Is Herring short of legal work to do in Virginia? Is Herring bored with the types of cases he has to handle in Virginia? Does Herring enjoy giving legal opinions about how other States should deal with legal disputes over their election laws? Does Herring think he has a duty to spend time and resources to join out-of-state litigations to address matters concerning the rights of non-Virginians? Is Herring trying to raise his political profile to enhance his career beyond the Virginia Attorney General’s office?

Herring should give full time and attention to his duties and responsibilities as Virginia’s Attorney General. Herring should focus on dealing with the legal interests of Virginia and its citizens, and not moonlight in litigation involving the legal interests of other States and their citizens. And, Herring should not engage in practices that could encourage the attorneys general of other states to reciprocate and stick their noses into legal disputes in Virginia courts that affect only Virginia and its citizens.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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39 responses to “Herring Is Moonlighting in Election-Law Litigation

  1. Red Herring has been the worst AG in Virginia history. He has to go.

  2. It would be a lot more beneficial for Virginians if the money he’s spending on being woke was directed to local governments to implement body-worn cameras for police officers.

  3. How about filing a FOIA to calculate how much tax payer money was used/wasted

  4. This poorly orchestrated stewardship of our tax dollars is nearly as bad as Governor ‘Coonman’ Northam spending $1,000,000 to figure out how he got his VMI nickname.

    • James Wyatt Whitehead V

      I heard about that million dollar inquisition on the radio. How in the world could you justify that much spending on a review of VMI? My bet is that they will fail to turn up very much of substance.

      • Further Penance [AT OUR EXPENSE] for his behavior….and for the deal he struck with his party to stay in power.

        Remember, you can’t put a price on forgiveness….. but you can buy enough people off to stay in the Gov’s House….well he can, or rather he can make us do so……

  5. Everybody’s gottta have a hobby…

  6. Herring has constitutional and legal responsibilities under the Virginia Antitrust Act to investigate the business activities of the Department of Health protected regional monopolists who ravage competition in their areas of hegemony.

    I have sent his office compelling evidence of antitrust violations by those organizations since approximately the day he first took office. I have never received a reply, and as far as I know he has never lifted a finger to investigate.

    He needs to answer to the people of Virginia for the billion dollars a year in excess healthcare costs associated with the business activities of those cabals.

  7. I guess an ag can file an amicus only if it fits GOP aims?

    • No, but I think our state A.G. should stay out of other states’ business unless it directly affects Virginia. It can be argued that filing briefs on federal issues might fall under the purview of a state A.G. (e.g. to protect the rights of his home state). But in my opinion inserting himself into another state’s election laws is pretty far outside the realm of the activities in which he should be engaging. I would have the same opinion if it was a GOP A.G. pulling this crap. Who cares how they do it in Texas?

  8. For this post to make more sense, Mr. Jaksetic needs to provide a little more context. In which courts were these cases for which Herrings filed amicus briefs? If they were in federal courts, they could well have involved a legal principle that could also have affected Virginia. The fact other state AGs were involved leads me to believe that federal issues were involved. If they were cases in state courts, he probably had less reason to be involved. Just complaining about Herring filing amicus briefs is not sufficient basis for damning him. Tell us more about the cases and the courts in which they were being heard.

    • October 5th, 2020. AG Herring decided to join a group of 18 AG challenging South Carolina Law.


      AG Herring joins 17 AG’s defending a County Clerks Decision to send unsolicited mail-in voting applications to voters.


      No Mr. Hall-Sizemore, they were state issues that had nothing to with Virginia or its interests outside of his political party.

      • I agree that Herring and others should have stayed out of the Texas case. From what I can determine, at issue was the interpretation of Texas law.

        As for the other case, that amicus was filed in a case appealed to the U.S. Supreme Court. Such a case would have ramifications affecting Virginia. It is not unusual for AGs to file amicus briefs in such cases.

        As for the blather about state resources being used to file these briefs, all Herring did was authorize his name to be included on the brief. The actual work of researching and drafting the brief was done by someone else, probably the staff of the Democratic Attorneys General Association.

        All this is no different than the Republican attorneys general calling on the Justice Department to drop its case against Michael Sullivan. Where was the states’ interests in that? https://republicanags.com/2020/05/19/icymi-associated-press-group-of-gop-state-ags-calls-on-judge-to-dismiss-flynn-case/

        • Uh, uh, not so fast… he had to read it first (I hope). That must’ve cost the State hundreds of dollars.

          Where was the outrage?

          “In July 2010, Cuccinelli joined eight other states in filing an amicus brief opposing the federal government’s lawsuit challenging an Arizona immigration enforcement statute.”

          • ““In July 2010, Cuccinelli joined eight other states in filing an amicus brief opposing the federal government’s lawsuit challenging an Arizona immigration enforcement statute.””

            He was wrong too, so anything else besides “Whataboutism”? I mean you weren’t really going to condemn Herring as he plays for your team.

          • Did I not say he spent hundreds of Va $$?

            BTW, I’m sure you have a link to one of your 2010 comments expressing your outrage with Ken, too.

            It’s not “whataboutism”. It’s the taste of gander and goose in the same brown (25) gravy — another fine product of Uranus.

          • I wasn’t a resident of Virginia in 2010.

            It’s the very definition of “whataboutism”.

            “the technique or practice of responding to an accusation or difficult question by making a counteraccusation or raising a different issue.”

            Such a juvenile retort, are you sure that you’re not 12 instead of 65?

          • So, basically then, you’re only displaying smuggery. And your new word.

          • Smuggery isn’t a word, you should remove the needle from your eye before talking.

            Also, take note. I said Cuccinelli was wrong then as Herring is wrong now. Thanks for proving that your “whataboutism” is without question and any opinion you express is dipped in hypocrisy.

            Furthermore, “whataboutism” isn’t a new word for me.

          • https://www.dictionary.com/browse/smuggery

            “Our earliest ex. is in Aldous Huxley’s ‘Point Counter Point’ (1928).”

          • “But he was trapped.
            Physically, by the death of his fa-
            ther; mentally, by the limitations
            of his not too-open mind. He lack-
            ed the courage to take decided
            steps. But once detached from
            this smuggery, H. M. Pulham, Esq.
            became H. M. Pulham, Man. His
            warexperience, his New York ad-
            vertising job, and his only true
            love proved to him that he actual-
            ly possessed ideas which were his
            own. ”


          • I suggest using and actual dictionary.


            “The word you’ve entered isn’t in the dictionary. Click on a spelling suggestion below or try again using the search bar above.”

          • Wow. Look at you. The very definition of smuggery… a dictionary snob. You should send a portrait to them.
            Okay, a dictionary, a real one. Or THE real one.


          • The fact that you’re still prattling on about a word that isn’t real, even by scrabble standards is hilarious. It’s okay for you to admit your a hypocrite and are okay with Herring filing brief’s for the fact you voted for him and he’s on your team.

            If you’re devolving to “twitter” to validate your own pompousness, you’ve lost.

            It’s honestly okay that you cling to your “whataboutism” no one expects any semblance of dignity or truth from you.

            Expressing apology, dismay, or surprise, esp. after an obvious but usually minor mistake.

            We were unable to find anything about – smuggery.”

          • Nah, that Twitter was bait. But it is the OED word of the day, so…

            I figured you for a wily bass, not a carp. Oh well.


            Public OED? You cheap thing! Buy a subscription.

          • Still invalid no matter how many times you try, just makes you more and more a sycophant.

          • Teaching pigs is a hobby, not a compulsion, so I can stop. The Collins dictionary is all that is needed. It only takes on example to prove you wrong.

            Re: Oops. Apology accepted.

          • Umm, no.

            Hence the caveat in the definition of “British English”.

            See Merriam-Webster, the Publisher that predates Collins by about 148 years.

            The problem with being a sycophant is, that the individuals your wishing to win praise of don’t know you, don’t care who you are and will never accept you.

        • “As for the blather about state resources being used to file these briefs, all Herring did was authorize his name to be included on the brief. The actual work of researching and drafting the brief was done by someone else, probably the staff of the Democratic Attorneys General Association.

          All this is no different than the Republican attorneys general calling on the Justice Department to drop its case against Michael Sullivan. ”

          They were wrong too, so now that we’ve got your “whataboutism” out of the way. Is it or is it not incorrect for our AG of Virginia to interject himself into other states Voting laws.

          The argument, well the other side did it first died in the 1st grade and it the argument used by those who have no argument.

          • Dick Hall-Sizemore

            As I said in my earlier reply, I think Herring and the other AGs should have stayed out of the Texas case.

            I have often, on this blog and elsewhere, bemoaned the use of the AG position as a political platform. Any AG should act as the head of the state’s legal department, providing legal advice to the governor and state agencies and defending the state in court cases. However, it has never been that way, at least not in Virginia. The AG’s office has long been viewed as one of the stepping stones in the pursuit of the governor’s office.

            As for “whataboutism,” I agree that arguments should go beyond that; one bad thing does not justify another one. However, when criticizing the activity of a political official, that criticism should not ignore activity of the same sort by other officials that one supports. The original post concentrated solely on Herring. If one is going to criticize Herring for using his office to highlight political issues that he supports, then one should acknowledge that all AGs sometimes “moonlight” by getting involved in issues that do not directly affect their states at that moment. The poster did not do that, thereby implying that Herring is somehow doing something out of the ordinary.

            Also, going back to my original comment, some of those amicus briefs could have (and, as you point out, were) filed in federal court cases, in which the state could have had a legitimate interest.

  9. Well, this leaves Virginia the more repressive…

    DUBAI, United Arab Emirates (AP) — The United Arab Emirates announced on Saturday a major overhaul of the country’s Islamic personal laws, allowing unmarried couples to cohabitate, loosening alcohol restrictions and criminalizing so-called “honor killings.”

  10. Amicus briefs are an important part of our (mostly at the) appeals process of our legal system, as are our State AGs and CAs.

    I would rather they file such briefs when they are inappropriate than not file them when they are. As such, it is our responsibility to provide latitude. It’s part of their job, their general occupation, and all of our duties.

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