After only Willard Romney and Ron Paul timely submitted the required 10,000 signatures (with 400 from each CD) to qualify for the Virginia GOP primary ballot, Rick Perry sued Virginia State Board of Elections (“SBE”) members (Judd, Bowers, and Palmer) and Republican Party of Va. (“RPVA”) Chair (Pat  Mullins), in their official capacities, in federal court.  Perry sought to litigate his way onto the ballot by having the Court issue an injunction prohibiting the SBE from enforcing the law and compelling the RPVA to place him on the ballot.  Perry v. Judd, Civ. No. 3;11-cv-856-JAG (E.D. Va. Dec. 27, 2011).  The Court invited the other GOP candidates to intervene, and Santorum, Gingrich, and Huntsman did so.  The Court set a schedule requiring opening briefs to be filed on Jan. 6, responses on Jan. 11, and a hearing with live witnesses on Jan. 13.  Here are some of the highlights of the briefs the parties filed yesterday.

Perry initially claimed that (1) Virginia’s requirement (Va. Code 24.2-545.B) that petitions circulators be registered Virginia voters violates the First and Fourteenth Amendment Constitutional rights of free speech and free association; and (2) the 10,000, 400/CD requirement violates the 1st and 14th Amendments.  Docket Entry # 1.  Perry subsequently argued that (3) 24.2-545.B doesn’t really require 10,000 signatures – it is “permissive” and says that the candidates “may” file the petitions; (4) the SBE’s guidance requiring the 10,000 signatures did not receive U.S. Department of Justice preclearance under Voting Rights Act Sec. 5; and (5) the RPVA memo saying that it would only check petitions with less than 15,000 names also violated Voting Rights section 5.  DE ## 34, 37.   Of these arguments, only the first one, which cited Supreme Court and other precedent, seemed to have any potential merit.

The other GOP candidates’ briefs echo these claims, DE # 40, and the Affidavit from the Newt 2012 Ballot Access Coordinator says that they turned in 11,050 signatures, but less than 10,000 were valid DE # 40.  Gingrich has admitted that 1,500 signatures were fraudulent.  DE #36-1. Santorum submitted 8,000, but the SBE rejected his filing.  DE # 25.  Huntsman submitted zero.  Id.  I would like to see Perry’s filing forms – it was reported that he submitted over 10,000, but he admitted to submitting 6,000 – candidates need to certify to the number of petitions submitted.  If he said 6,000, the SBE would have rejected his filing.  What did he say?

The RPVA moved to dismiss, arguing that it was just enforcing state law and the candidates had not stated a claim against it.  DE ##, 17, 33.  It further argued that the statute says what it says, candidates don’t have standing under the Voting Rights Act, and since Perry only submitted 6,000 signatures, he can’t complain that the RPVA counted them.  DE # 35.

AG Cuccinelli had earlier criticized the failure to place the non-qualifying candidates on the ballot, but assured the Court that he could defend that decision.  DE #21 (Memorandum of Potential Conflict Issues).  The AG’s Opposition brief  (DE # 36) stated that (1) courts have routinely upheld requirements that candidates submit numerous signatures to qualify for the ballot; (2) the GOP candidates lacked standing because they did exercise their alleged right to not have non-residents circulating ballots, and they weren’t being kept of the ballot because of the circulator requirement, but because they didn’t get the 10,000 signatures; (3) the motion is barred by “laches” – this means that they just waited too long to challenge the requirement and could have done so long before the filing deadline; bringing the action now, as the SBE is preparing the ballots, “threatens to disrupt an order election”; (4) in the most detailed argument, the GOP candidates cannot show that the circulator residency requirement violates the Constitution; (5) the injunction should be denied because it would “cause voter confusion, increase expense, and threaten to disrupt the election “; (5) the SBE form setting out requirements for signature collection was pre-cleared by the Justice Department under the Voting Rights Act in 1999; and (6) “may” in the statute means “shall.”

At the hearing, Perry indicated that he would call Jerry Kilgore, former VA Attorney General and unsuccessful candidate for Governor, to testify about the legislative history of the statute and the RPVA’s efforts to comply.  Perry will also call his campaign advisor and ballot access guy.  DE # 24.  The SBE will call Donald Palmer who will talk about the process and how they need to finalize the ballots now.  DE # 22.

Note, of course, that President Obama timely filed 17,000 signatures and because he was the only candidate who qualified (or filed), the March 6, 2012 Democratic primary has been cancelled and he has been allocated 100% of Virginia’s National Convention delegates.  One point that has not been noted in the media is that for the past three cycles the DPVA has tried to get the General Assembly to lower the requirement from 10,000 to 5,000 signatures – the GOP has always blocked that effort.  We never sued though.

Stay tuned.  (I’ll be posting more frequent updates on twitter (@demrulz) and Facebook (Frank Leone); many others are also following this story and I will be retweeting/sharing.)

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