ACRU

Judge Says Virginia Ballot Rules Are Unconstitutional, but Rules against GOP Candidates Anyway

This column by ACRU Senior Legal Analyst Ken Klukowski was published January 17, 2012 on The Washington Examiner website.

A federal judge declared that Virginia’s rules keeping Rick Perry, Newt Gingrich, and Rick Santorum off Virginia’s March 6 presidential primary ballot “will likely be declared unconstitutional, and that the plaintiffs will ultimately prevail.”

But then he sided with Virginia, and ordered Virginia’s election to proceed with only Mitt Romney and Ron Paul on the ballot.

To make it on the primary ballot, Virginia law requires a candidate to submit 10,000 signatures of Virginia voters who attest they plan on voting in the primary, at least 400 of which must be from each congressional district. Signature petitions can only be circulated by Virginia citizens who are eligible to vote.

Only Romney and Paul–both of whom ran in 2008 and already had campaign machines in Virginia–made it on the Republican ballot, with the others falling short of the required10,000 validated signatures.

Perry filed suit challenging these requirements, and Gingrich and Santorum followed Perry’s lead by joining his case.

The Supreme Court had struck down such residency requirements for petitions for ballot initiatives, and there’s no reason this 1999 ruling does not also cover petitions for candidates. So U.S. District Judge John Gibney held that these residency requirements are unconstitutional.

But for that requirement, all three campaigns had plenty of out-of-state workers to gather enough signatures. Gibney also added that, “the public interest weighs heavily in favor” of ordering the candidates added to Virginia’s ballot.

However, Gibney (an Obama appointee) ruled against the other Republicans, holding that they filed their lawsuit too late. (Perry filed right after the deadline for submitting signatures.)

Gibney wrote, “Equity demands that those who would challenge the legal sufficiency of administrative decisions concerning time sensitive public … projects do so with haste and dispatch.” Absentee ballots are already due to be mailed out.

He specifically invoked the doctrine of laches, which “penalizes a litigant for negligent or willful failure to assert his rights.” Applying it here, he concluded, “In essence, they played the game, lost, and then complained that the rules were unfair.”

Perry has filed an emergency appeal with the 4th Circuit appeals court. Action is expected shortly.