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The Fourth Circuit has released an order in Perry v. Judd unanimously denying Rick Perry’s emergency motion for injunctive relief in his fight to get on the Virginia ballot. The panel issuing the order consisted of Judge Wilkinson, Judge Agee, and Judge Diaz. Given the timeline for printing ballots, this is the end of the road as a practical matter. The only step left is an emergency request to Chief Justice Roberts, in his capacity as Circuit Justice for the Fourth Circuit. Such a request would almost certainly be denied.

Some language from the opening (describing Perry as Movant, as it was his motion):

Movant had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would  not have created the disruption that this last-minute lawsuit has. Movant’s request contravenes repeated Supreme Court  admonitions that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour.  Movant knew long before now the requirements of Virginia’s  election laws. There was no failure of notice. The requirements have been on the books for years. If we were to grant the requested relief, we would encourage candidates for President who knew the requirements and failed to satisfy them to seek at a tardy and belated hour to change the rules of the game. This would not be fair to the states or to other candidates who did comply with the prescribed processes in a timely manner and it would throw the presidential nominating process into added turmoil.

[UPDATE: The decision rests entirely on laches, after emphasizing that mandatory preliminary injunctive relief (to alter rather than maintain the status quo) “is disfavored, and warranted only the most extraordinary circumstances.” The order reasons that Perry’s First Amendment challenge to the residency requirement for petition circulators was ripe as of the day that he officially declared his candidacy in Virginia. Having chosen to wait to file suit until after he was denied a place on the ballot, he subjected himself to the rule that “equity ministers to the vigilant, not to those who sleep upon their rights.” The order also endorses, without definitively resolving, Virginia’s argument about Perry’s lack of standing (which the district court criticized but which I thought might have merit). The language of the twenty-two page order suggests that Judge Wilkinson wielded the primary pen in drafting. That makes sense given his seniority on the panel. All three judges must have been very busy given the short turnaround time of approximately 50 hours, including Sunday and a Monday holiday.]

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In a last-ditch attempt to get on the Virginia ballot, counsel for Republican presidential candidate Rick Perry has filed an Emergency Motion for Injunction Pending Appeal. In response to this Sunday filing, the Fourth Circuit has called for a response to be filed tomorrow, which is Martin Luther King, Jr. Day.

Some key language from the opening:

Movant filed this lawsuit on December 27, 2011, the same date the names of candidates qualified to appear on the ballot were scheduled to be certified and just two business days after Defendant Mullins made a preliminary determination and publicly announced Movant did not submit enough petition signatures to qualify to be placed on the ballot. Prior to this date, Movant reasonably expected to meet the requirements of Virginia’s “likely . . . unconstitutional” election law, and Respondents could not have suffered any injury, as they could not have begun the process of finalizing their ballot orders.

Movant moves this Court, pursuant to Rule 8(a) of the Federal Rules of  Appellate Procedure, for an order granting injunctive relief. Movant would show this Court should issue an injunction ordering Movant’s name to appear alongside others on the ballot for the Republican primary for the Commonwealth of Virginia, or in the alternative, that this Court issue an injunction ordering the Respondents not to order, print, or mail ballots prior to the Court’s final consideration of this appeal.

[UPDATE: Virginia filed its response, which is available at Politico.]

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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.

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Judge Gibney has denied relief to Rick Perry, Newt Gingrich, Rick Santorum, and Jon Huntsman in their attempt to get on the Virginia ballot. Here is a .pdf of today’s ruling in Perry v. Judd. The decision rests primarily on laches. Translation? They waited too long to challenge the ballot access rules. Some nice language from the opening:

The equitable doctrine of laches bars the plaintiffs’ request for a preliminary injunction. They knew the rules in Virginia many months ago; the limitations on circulators affected them as soon as they began to circulate petitions. The plaintiffs could have challenged the Virginia law at that time. Instead, they waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot; then, on the eve of the printing of absentee ballots, they decided to challenge Virginia’s laws. In essence, they played the game, lost, and then complained that the rules were unfair. 

(emphasis added)

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