August 1, 2012
Federal District Judge Declares Virginia's Residency Requirements for Petition Circulators Unconstitutional
Too late for Republican Presidential Candidates Perry, Gingrich, Huntsman, and Santorum - - - who challenged the Virginia regulation in January - - - Federal District Judge John Gibney has declared Virginia's restrictions on petition circulators unconstitutional. Recall that the candidates had challenged the regulations requiring petition circulators to be state residents, but because the candidates had waited until they were disqualified from being on the ballot, Judge Gibney found their claim was barred by laches and the Fourth Circuit agreed.
Now, revisiting the substance of the argument in the opinion in Libertarian Party of Virginia v. Judd, Judge Gibney easily concluded that the plaintiffs had standing and almost as easily concluded that the Virginia provision violated the First Amendment.
Judge Gibney found that the prohibition of nonresidents from circulating petitions to collect signatures and thus satisfy the requirement of a petition with a minimum number of signatures for candidates to appear on the ballot was directed at political speech. While the judge found the state interests of preventing fraud and protecting the integrity of elections compelling, he concluded that the state residency restriction was not narrowly tailored. There was no connection between in-state and out-of-state residents with regard to fraud. Moreover, the state's argument that it needed to have a subpoena power was insufficient; the state presented no evidence that it was unable to prosecute a fraudulent circulator because he or she was a non-resident.
As Judge Gibney had intimated earlier, if Perry, Gingrich, Huntsman, and Santorum had challenged the provision in a timely fashion, they would have been successful - - - and perhaps on the ballot in Virginia.
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