News Release
FEDERAL JUDGE REVERSED COURSE JANUARY 10:
ORDERS IMMEDIATE HALT TO PRINTING OF VIRGINIA BALLOTS --
FEDERAL JUDGE PREDICTS ALL PRESIDENTIAL CANDIDATES
Will Be on the Republican Primary Ballot in Virginia
Contact: Jon Moseley
(703) 656-1230
RICHMOND, VIRGINIA (JANUARY 10, 2012) -- Stop printing the ballots for Virginia's primary was the Order of United States District Court Judge John A. Gibney on January 10, 2012, in the Federal lawsuit filed by Governor Rick Perry. Perry sued in late December to appear on Virginia's ballot, after only Mitt Romney and Ron Paul qualified for the Republican primary.
Judge Gibney earlier said no to the same request on December 29, 2012, denying then Rick Perry's motion for an injunction to stop the printing of the ballots. Virginia's State Board of Elections indicated they would print the primary ballots on January 9, 2012, and were required by Federal law to mail the ballots to overseas military and civilian voters by January 21, 2012.
But Judge Gibney reversed himself in a January 10, 2012, Order, commanding a halt to the printing of primary ballots. Gibney's injunction expires at 11:59 PM on January 13, 2012, the same day that Gibney will hold a hearing on the "merits" (substance) of the lawsuit. The expiration date of the injunction indicates that Gibney expects to issue a final ruling the same day as the one and only real hearing in the case. That is an extremely fast turn-around for such a momentous lawsuit.
Even more striking, the Federal Judge signalled that he is likely to order that all Republican presidential candidates will appear on Virginia's primary ballot. Gibney wrote: "The Court finds that there is a strong likelihood that the Court will find the residency requirement for petition circulators to be unconstitutional. The authorities make clear that circulating petitions for candidates is a form of protected speech, and that the Commonwealth has a heavy burden to justify the restriction on speech by showing not only that the limitation achieves a valid state interest but also that the limitation is no broader in scope than necessary to achieve that purpose. Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182 (1999); Lux v. Judd, 651 F.3d 396 (4th Cir. 2011). As in all strict scrutinty cases, the state has a difficult task to demonstrate the propriety of its limitations on protected speech. For this reason, the Court believes that the plaintiffs have a substantial likelihood of succeeding on the merits, at least on the issue of the validity of the residency requirements."
Although it is possible that Judge Gibney could still refuse to change the Virginia ballot, he is strongly leaning toward granting the request of the other presidential candidates to be included in the March 6 primary.
Gibney halted the ballot preparation because of a compelling legal brief filed jointly by Newt Gingrich, Rick Santorum, and Jon Huntsman. Judge Gibney had ordered that all of the Presidential candidates should have the opportunity to participate in the Rick Perry lawsuit.
On January 6, 2012, the Gingrich / Santorum / Huntsman joint legal brief was filed and (a) fleshed out in detail the Constitutional precedents proving RIck Perry's main assertion, and (b) answering the biggest problem about the case -- what to do about it?
The greatest weakness in Rick Perry's lawsuit had been what remedy or solution Rick Perry would ask the U.S. District Court to provide.
Rick Perry's lawsuit argues that it is unconstitutional for Virginia's General Assembly to require ballot petition collectors to be Virginia residents (either registered voters in Virginia or eligible to register to vote in Virginia).
http://www.rickperry.org/content/uploads/2011/12/Perry-VA-Ballot-Access.pdf?utm_medium=Email&utm_source=ExactTarget&utm_campaign=pressRelease
This is strongly based upon a surprisingly similar United States Supreme Court precedent Buckley v. American Constitutional Law Foundtion, 525 U.S. 182 (1999). The U.S. Supreme Court has already decided that it is unconstitutional -- i.e., too great a burden on political expression, activiity, and "speech" -- to limit those who can gather the petitions to only registered voters in a State.
http://supreme.justia.com/us/525/182/case.html
The primary reason the circulator residency requirement is unconstitutional is that States have not shown any reasonable justification for the limitation. Because the limitation does not appear to serve any real purpose, its burden on political expression is too great. The restriction burdening a fundamental Constitutional right is not narrowly tailored to serve a legitimate state interest.
But Rick Perry's lawsuit suffered from a huge problem: If Judge Gibney agreed with Perry's argument, what could be done at this late date to cure the problem?
If RIck Perry were allowed the right to bring in out-of-state petition circulators, he would still have to collect another 4,000 valid signatures, plus a margin of error, in a very short window of time. That seemed entirely impractical.
Enter the excellent Gingrich / Santorum / Huntsman legal brief, which solved this problem.
The Gingrich / Santorum / Huntsman legal brief argues that because the petition circulator residency requirement is unconstitutional, the entire ballot petition scheme under Va. Code 24.2-545(B) must be thrown out in its entirety.
In effect, Gingrich, Santorum, and Huntsman argue that the petition circulator residency requirement is not "severable" from the rest of Va. Code 24.2-545(B). It's all or nothing. The entire statutory plan falls, if part of it falls.
Thus, Gingrich, Santorum, and Huntsman ask for the United States District Court to strike the entire statutory scheme for ballot petitions, and forcefully argue that the outcome of this is that all Republican presidential candidates must appear on the March 6, 2012, Republican primary ballot.
Rather than looking at the petition gatherer residency requirement in isolation, Judge Gibney was now persuaded to consider the entirety of Va. Code 24.2-545(B) invalid as a unit.
However, one requirement for an injunction is the likelihood of success on the merits. That is, a judge will only issue an injunction if it appears likely that the party requesting an injunction has a very strong case for winning at the final hearing.
As a result, Judge Gibney issued the extraordinary comment quoted above (which is necessary and legal valid for the balancing test for issuing an injunction):
"The Court finds that there is a strong likelihood that the Court will find the residency requirement for petition circulators to be unconstitutional. The authorities make clear that circulating petitions for candidates is a form of protected speech, and that the Commonwealth has a heavy burden to justify the restriction on speech by showing not only that the limitation achieves a valid state interest but also that the limitation is no broader in scope than necessary to achieve that purpose. Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182 (1999); Lux v. Judd, 651 F.3d 396 (4th Cir. 2011). As in all strict scrutinty cases, the state has a difficult task to demonstrate the propriety of its limitations on protected speech. For this reason, the Court believes that the plaintiffs have a substantial likelihood of succeeding on the merits, at least on the issue of the validity of the residency requirements."
The purpose of making this comment was to explain why an injunction was appropriate for him to order at this time.
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