Judge John Gibney of the U.S. District Court for the Eastern District of Virginia gave a 22-page smackdown to the campaigns of Rick Perry, Newt Gingrich, John Huntsman and Rick Santorum when he ruled that he would not grant an injunction that would have required the State Board of Elections to put them on the ballot. Here is the opinion.
The suit had been brought by Rick Perry, claiming that he should be put on the ballot because the requirement that he submit 10,000 signatures collected by Virginia voters is unconstitutional. He had a second claim that got a little less attention — that the requirement of 10,000 signatures was unduly burdensome. As I wrote two weeks ago, Perry had some good arguments and some not so good arguments. And Judge Gibney pretty much got it right his ruling today held:
1. The requirement that the signatures be obtained by registered Virginia voters is likely unconstitutional. The United States Supreme Court has held in other cases that such residency requirements serve no useful purpose, and therefore are unnecessary restrictions on the right of access to the ballot.
2. The 10,000 signature requirement is NOT unduly burdensome; other cases that the courts have considered have held that 80,000 signatures in Colorado is NOT unduly burdensome, so requiring 10,000 signatures in a larger state like Virginia cannot be thought to be unduly burdensome.
3. If Perry had brought this complaint months ago — before he had failed to get on the ballot — he would likely have gotten his injunction, and then his workers would have been free to get their 10,000 signatures without worrying about the residency requirement. And, says Judge Gibney, that is what he should have done.
4. The requested injunction will not be issued because Perry waited too long. Virginia has an interest in having an orderly election, and the consequence of this delay is that that interest is upset.
5. Judge Gibney didn’t say so expressly, but he clearly implied that if the litigation continues, he would declare the statute requiring that the signature solicitors be Virginia residents to be unconstitutional. What is not clear from the opinion, though, is whether the suit can go forward beyond today’s ruling. The only plaintiffs are candidates who will not be on the ballot, and once it is clear that they cannot be on the ballot, the point of the suit is gone. What should happen would be for someone to join the suit as an additional plaintiff — a Virginia voter who could argue that his or her interest in having his candidates get on the ballot in future elections is being compromised by this unconstitutional rule.
The decision was clearly written before the hearing today, and Judge Gibney and his law clerks did a good job — because, of course, they agreed with me.
