Friday, January 13, 2012

"NO" says Federal Judge to Virginia Presidential Primary Ballot Lawsuit by Rick Perry

News Release



Only Mitt Romney and Ron Paul Will Be on the
March 6, 2012 Republican Primary Ballot in Virginia

Contact: Jon Moseley (703) 656-1230

RICHMOND, VIRGINIA (JANUARY 13, 2012) -- "UNCONSTITUTIONAL" but TOO LATE to do anything about it, was the ruling 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. Newt Gingrich, Rick Santorum, and Jon Huntsman "intervened" and joined the lawsuit.

Judge Gibney ruled that RIck Perry's lawsuit is absolutely correct: Virginia's restrictions on who may circulate ballot access petitions is UNCONSTITUTIONAL in light of prior U.S. Supreme Court precedent -- see below.

However, the Judge ruled that he could not provide a "remedy' to the other candidates, because they did not in fact submit 10,000 ballot petition signatures and it is simply too late in the process to be fixed.

Explained Virginia attorney Jonathon Moseley: "Had a candidate actually collected ballot petitions using out-of-state circulators, for example, and wanted those otherwise ineligible petitions to be counted, Judge Gibney clearly would have ordered those petitions to be counted. Judge Gibney would have stricken the requirement that circulators be Virginia residents. But now there simply isn't time for candidates to run out and collect 10,000 ballot petitions, even if they use out of state circulators, free of the restriction that RIck Perry challenged."

Judge Gibney's final order can be downloaded at:

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).

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.

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.

The Gingrich / Santorum / Huntsman legal brief argued 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 argued 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 asked 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.

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