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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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The Richmond Times-Dispatch ran a story today under the headline “Technicality imperils prosecutor’s re-election bid.” According to the story: Richmond County Commonwealth’s Attorney Wayne L. Emery will not appear on the ballot for the election because his petitions to qualify as a candidate have been disqualified for failure to conform to State Board of Elections regulations. According to the Board, the petitions are invalid because each petition filed by Emery consisted of two pages stapled together rather than double-sided, two-page, back-and-front petitions.

There are more important details to the story, which you can read by clicking through the link above. But I’ve given you the gist of it. [IMPORTANT UPDATE: To understand the issues, it is essential to read the additional facts set forth in the comment by Andrew McRoberts below. Those additional facts change both the complexion of the story and the legal analysis.]

According to Andrew McRoberts, the attorney who represented the Richmond County registrar and the Board in legal proceedings related to Emery’s petition, “[t]he electoral board is certainly disappointed that this has happened. Obviously, Richmond County does not want to be a test case for anyone’s regulation.”

Mr. McRoberts certainly knows much more about election law and local government law than I do. But I do know how to read statutes and regulations, so I thought I would take a look at the relevant legal materials to see if the Board truly was required to act in a way that led it to be “disappointed” with the ultimate result.

There is enough in there to lead me to question the Board’s interpretation. To be clear, I do not suggest that I have the right answer or that the Board necessarily reached the wrong answer. But it appears there is enough to raise a question.

(more…)

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