January 14, 2012
Four Republican Candidates Lose First Amendment Ballot Challenge in Virginia on Laches
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
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