Judge Gibney’s opinion denying relief to Rick Perry, Newt Gingrich, Rick Santorum, and Jon Huntsman is well written, particularly given the time constraints within which the writing was done. I am no expert in election law, but as a generalist, I am persuaded that his ruling is correct.
I think that Judge Gibney was wrong, however, to dismiss as “disingenuous” Virginia’s argument that the ballot-access-seeking candidates lack standing. Here is Judge Gibney’s analysis:
The defendants claim that the plaintiffs lack standing because they do not have 10,000 signatures, and therefore may not appear on the ballot. This disingenuous argument confuses a decision on the merits with standing. Here, the plaintiffs contend that they do not have 10,000 signatures because of the Commonwealth’s unconstitutional rules. They allege two distinct elements of injury: the inability to speak through non-Virginians, and the consequent failure to secure enough signatures to get on the ballot. These contentions satisfy the Article III standing requirement.
“Disingenuous” is a strong word.
Even if the argument is wrong, it does not appear disingenuous. And the claim that plaintiffs lack standing might not be wrong; it might be right.
Standing has three prongs: injury, causation, and redressability. Judge Gibney’s standing analysis examines only the injury prong. But it appears that Perry, Gingrich, Santorum, and Huntsman cannot satisfy the redressability prong. Even if they are right that the residency requirement for circulators is unconstitutional, there may be no redress available to them. That is largely a function of when they decided to sue–after it was too late.
Standing is assessed as of the time of filing. If a plaintiff’s complained-of injury could not be redressed as of the time of filing, then that plaintiff would lack standing. In denying relief based on laches, Judge Gibney observed that, as of the date of the ruling, Virginia could not get the candidates on the ballot on time. If the same was true as of the time of filing, then there was no relief that a court could have ordered to redress the claimed injury, and the plaintiffs would have lacked standing.