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Judge to GOP Candidates: You Snooze, You Lose

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Federal District Judge John Gibney yesterday rejected the efforts by GOP Presidential candidates Perry, Gingrich, Santorum, and Huntsman to litigate their way onto the Virginia March 6, 2012 primary ballot.   Each of the candidates had failed to comply with the Virginia statutory requirement that they obtain 10,000 signatures to qualify for the primary.  In its Opinion, the Court held that their request for a preliminary injunction to place them on the ballot was barred by the equitable doctrine of laches – meaning that they waited too long to challenge the law, and a change at this time would disrupt the printing of the ballots and the primary process.  “In essence, they played the game, lost, and then complained the rules were unfair.”  Op. at 2.  In doing so, the candidates “displayed an unreasonable and inexcusable lack of diligence.”  Op. at 11.

The Court concluded, however, that if the candidates had filed a timely complaint, the Court would have found the statutory requirement that petition circulators must be Virginia residents violated the 1st and 14th Amendment rights of free speech and association.  The Court would have ruled that the State could not enforce the circulator residency requirement and the candidates “could have tried, with the expanded pool of campaign workers,  to get the 10,000 signatures.”  Op. at 22.  [States Rights Irony Alert] In upholding the constitutional challenge, the Court found “as Perry’s lawyers have correctly argued, federalism concerns do not obviate the need to comply with the Constitution.”  Op. at 21.

The Court rejected the argument that the 10,000 total/400 per congressional district requirement was unconstitutional as unreasonably burdensome.  It found that state had legitimate interests in requiring candidates to show broad support and in discouraging frivolous candidacies.  “Fringe candidacies and crackpots have the potential to complicate needlessly both the ballot and the counting of votes.”  Op. at 12.  The Court concluded that the 10,000 signature requirement was not unduly burdensome (noting former Va. Attny Gen Kilgore’s testimony that he got 13,000 signatures, using friends and family).  The Court rejected the claim that the statute didn’t really require 10,0000 signatures and stated that  the candidates had not based their request for injunction on the Voting Rights Act claims, so he would not address those claims.

The Court noted that:  “Since no candidates have challenged President Obama, there will be no Democratic primary.”  Op. at 5, n.3.  See this excellent site for all the filings.

What’s next?  The candidates can appeal, but most or all of these guys will probably be out the race by March 6 anyway, and as the ballot preparation ballot continues, courts will be even less likely to block the state’s efforts to conduct the primary.   Although I didn’t find the Court’s constitutional argument very convincing, the General Assembly may want to change the law to eliminate the circulator residency requirement (although it can impose requirements on non-residents to make sure that they can be subpoenaed).  The Court did not strike down the 10,000 signature requirement, but the Democratic Party of Virginia has been trying to get that lowered to 5,000 for three cycles — Virginia’s requirement is the most burdensome in the country and 5,000 is sufficient to show a candidate has support.  (Many states require no signatures at all.)  The Court did not address the identical circulator/signature requirements for other statewide races, including this year’s Senate race and next year’s Governor/LG/AG races.  Going forward, I think it should take a consistent approach in modifying these requirements.  For the Senate race, the State Board Of Elections has already issued directives – it should probably announce that it won’t enforce the residency requirement, but we will see if the GA modifies the ballot requirement.  Note that there is already a concern about the 400 per CD  signature requirement – last fall, the State Board used the old CDs, but it thinks it needs to use the new CDs, which don’t yet exist.