Outside the Beltway

Federal Judge Rejects Rick Perry’s Ballot Access Lawsuit

Not surprisingly, Rick Perry's effort to get on Virginia's primary ballot via litigation has failed

Doug Mataconis · Friday, January 13, 2012 · 10 comments

A Virginia Federal Judge has rejected an effort by Rick Perry, joined by three other candidates for President, to get his name added to the Virginia primary ballot:

Following a hearing in Richmond today, U.S. district judge John Gibney ruled against Rick Perry’s challenge to the Virginia ballot rules, according to Fox News.

The decision means Perry, as well as Newt Gingrich, Rick Santorum Jon Huntsman, will not appear on the ballot in the state’s March 6 primary.

Perry and Gingrich failed to qualify for the ballot late last month after filing their signatures with the Virginia State Board of Elections, when the state GOP determined that neither candidate had enough valid signatures to meet the requirements. Only Mitt Romney and Ron Paul qualified to appear on the ballot with the required number of signatures: Huntsman and Santorum did not file at all.

Virginia requires 10,000 signatures from registered voters, including at least 400 signatures from each of the state’s congressional districts. The requirements are some of the most stringent in the country.

Perry challenged the constitutionality of the state’s ballot access rules in court on Dec. 27, calling them some of the “most onerous in the nation” and asserting that they “severely restrict who may obtain petition signatures.”

Details on the grounds for the decision, but based on this earlier report from the Richmond Times Dispatch it appears that the failure to comply with the ballot requirements or challenge the residency requirements for petitioners before the deadline may have played a role:

At the conclusion of a hearing that began about 10:15 a.m. and ended approximately 1:45 p.m., U.S. District judge John A. Gibney Jr., said he expected to have a ruling in writing by 3 p.m.

“I think that the residency requirement is likely to fall,” Gibney said at one point this afternoon. But, he added, he is troubled about the remedy sought by Perry and the others.

“I can’t for the life of me see how to put them on the ballot if they don’t have the (10,000) signatures,” he said

(…)

E. Duncan Getchell, Virginia’s solicitor general, argued that, among other factors, the candidates waited too long to challenge to the residency requirement. He said they should have been filed before the ballot was decided.

Indeed, as Politico notes, this appears to be the primary reason that Judge Gibney rejected the lawsuit:

In his opinion, Gibney says Perry, and the other candidates who joined the challenge, waited too long to bring the suit.

“They knew the rules in Virginia many months ago; the limitations on circulators affected them as soon as they began to circulate petitions,” he writes. “They plaintiffs could have challenged the Virginia law at that time. Instead, they waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot; then, on the eve of the printing of absentee ballots, they decided to challenge Virginia’s laws. In essence, they played the game, lost, and then complained that the rules were unfair.”

Later in his opinion, Judge Gibney lays out the argument in detail, setting forth yet another stark indictment of the incompetence of these four campaigns in this particular matter by finding that their request for preliminary relief is barred by the legal doctrine of laches, which is functionally equivalent to a statute of limitations in cases where equitable relief such as an injunction is sought:

[T}he Plaintiffs claim a loss of their First Amendment rights of free speech and association. Any injury arose when the Commonwealth limited the categories of people who could spread their message, by banning petition circulators from out-of-state. The first day the plaintiffs were unable to communicate their message effectively was the first day they could circulate petitions. As of that date, they could have brought in an army of out-of-state circulators to persuade people to sign petitions and, ultimately, vote for them. Huntsman, Gingrich, and Santorum declared their candidacies before July 1, 2011; thus, the first day they could have used out-of-state circulators was July 1, 2011. Perry declared his candidacy on August 13, 2011, and suffered injury from that date foward. Yet, the candidates waited almost half a year before seeking judicial relief. As to the first element of laches, therefore, the Court find that the plaintiffs displayed an unreasonable and inexcusable lack of diligence.

This lack of diligence has significantly harmed the defendants. The Board established a reasonable, necessary, and comprehensive schedule of tasks leading to the primary election. Among those tasks is the printing of absentee ballots. To comply with federal law, absentee ballots must be distributed on or before January 21, 2012. To meet this deadline, the Board set a timetable for the localities to design ballots, order them from printers, proofread mock-ups, receive them, and mail them out. By January 13, 2012, the date of the preliminary injunction hearing, the local hoards should have received absentee ballots, and begin the process of mailing them out. The filing of this suit, however, has changed the Board’s careful scheduled into chaotic attempt to get absentee ballots out on time. This alone amounts to damage the satisfied the laches requirement.

(…)

But there is another, more fundamental injury caused by the Plaintiff’s delay, Virginia insists that candidates secure 10,000 signatures of registered voters. See Va. Code Sec 24.2-545(B) This requirement service the valid purpose of limiting ballot access to candidates with a modicum of support and a viable chance in the election. Fringe candidates and crackpots have the potential to complicate needlessly both the ballot and the counting of votes. The 10,000 signature requirement is plainly constitutional….. and the number of signatures required is not asserted as a ground for preliminary relief.

None of the plaintiffs have secured 10,000 valid signatures. They ask the Court to order their inclusion on the ballot without having secured the requisite number to show they are viable candidates. The Commonwealth has a right to demand a show of legitimate strength among the electorate. Had the plaintiffs brought suit in a timely fashion, the Court could have allowed the use of non-resident circulators, and the plaintiffs might have been able to muster the required show of support. As it stands now, the Court can only speculate whether they would have been placed on the ballot. It is too late for the Court to allow them to gather more signatures – the absentee ballots must go out now.

Accordingly, the Court finds that the plaintiffs have slept on their rights to the detriment of the defendants. The motion for a preliminary injunction is barred by laches.

When this lawsuit was first filed two weeks ago, I anticipated that the delay, and specifically the act of waiting until after the deadline for submitted signatures had passed, could be fatal to the claim:

This is an issue that Perry should have brought up before the deadline to submit petitions was filed, with the argument being that his ability to collect signatures so that he could be deemed eligible to appear on the Virginia ballot was been unduly and illegally hampered by an unconstitutional residency requirement. Instead, he waited until after the deadline has passed,  and filed a Complaint where he admits that he didn’t have sufficient qualifying signatures by the deadline. Essentially he is now asking the Court to let him on the ballot even though he didn’t comply with the law because he couldn’t bring in outside petitioners. Arguably, Perry effectively waived his right to challenge the residence requirement by failing to do so before the deadline. At the very least, he presents a very weak case to the Court when he argues that he should be allowed on the ballot despite failing to comply with the law.

It strikes me that Judge Gibney got this exactly right. Allowing Perry and the others on the ballot on the ballot at this point would have been incredibly chaotic for Virginia election authorities, would have thwarted completely the purpose of Virginia’s ballot access laws, and would have turned Judge Gibney into precisely the kind of judicial activist that Perry and the others decry in their stump speeches. Also, as I noted on Tuesday, it would have been a completely perverse outcome for Judge Gibney allow any of these candidates on the ballot considering that they had failed to comply with Virginia’s ballot access law, which he correctly found to be constitutional.

There’s one more step here, of course.. The candidates could appeal this to the Fourth Circuit Court of Appeals on an emergency basis. However, given the fact that there is a Federal Holiday on Monday, that Judge Gibney’s order lifts the injunction he entered earlier this week against mailing ballots, and that everything in that regard has to be completed in 8 days, it seems very unlikely that the Circuit Court is going to reverse this decision and throw the entire Virginia primary into chaos at the last minute. These four campaigns failed to do what they needed to do to either get on the ballot, or challenge what they now contend is an unconstitutional residency requirement, and they’ve paid the price accordingly. That’s exactly how the law is supposed to work.

Here’s the opinion:

Perry et al v. Mullins et al