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Rick Perry files suit over Virginia ballot access

Rick Perry files suit over Virginia ballot access

Rick Perry has filed a lawsuit over his exclusion from the Virginia ballot.

His website link to the pleading is overloaded, so I don’t know the specifics, updates to follow.

Update:  The link keeps freezing but I managed to download the Complaint, here it is.

(added) I claim no expertise in election law, but it does surprise me that there are only two counts (restriction on use of out of state circulators and freedom of association/speech). It’s not clear that the reason Perry failed to meet the requirement was the use of out of state circulators, and requiring valid signatures (put aside number) would not seem to impose some unconstituional restriction. The complaint indicates that Perry submitted only 6000 valid signatures, but published reports indicated almost twice that many. I’m surprised there was no issue made of the fact that Romney and Paul petitions were not verified because of an arbitrary decision that only petitions under 15,000 would be checked, a decision which apparenly was changed only a few weeks ago. Again, I’m not claiming election law expertise, but it does seem like the Complaint has the wrong focus.

Perry VA Ballot Access


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scottinwisconsin | December 27, 2011 at 7:17 pm

“I screwed up, so change the rules for me!”
He should have spent this much effort getting signatures, and he’d be on the ballot.
Suing like a democrat (which he was when he ran Al Gore’s 1988 campaing in Texas).
But hey, he’ll be able to handle running the free world . . . honest.

    I suggest you read this:

    You will learn something, become more informed and embarrass yourself with less frequency.

      scottinwisconsin in reply to retire05. | December 27, 2011 at 9:36 pm

      And I suggest you Bite Me.
      Perry is just another big-government thug, who is convinced he and his ilk have the right to “govern me,” whether I consent or not, as long as they can get 50.0001% of the sheeple to vote for them.
      We live in a slave nation, on a prison planet, and democracy is the popular “cover story” used for defending and spreading that slavery.
      I’m not drinking the cool aid.
      I do not consent.
      Molon Labe.

        You Ron Paul freaks just can’t help yourselves, can you?

        Don’t consent; vote for Ron Paul. As the old saying goes, there is one born every minute.

          scottinwisconsin in reply to retire05. | December 27, 2011 at 9:52 pm

          When it’s freakish to expect elected officials to honor their oaths, and follow the Constitution, and not build an empire that will bankrupt the nation, then it’s over.
          Given sheeply like you, willing to Drink Perry’s cool aid, or Newt Romney’s, and love your slavery, the end is indeed near.
          Enjoy the every-growing tyranny. You deserve it.

          punfundit in reply to retire05. | December 27, 2011 at 11:49 pm


          Yes, in-fighting is such a worthy cause. You know what’s going to really cool? When Barack Obama wins re-election and is free to wield executive power any way he sees fit since he’ll no longer be concerned about staying in office. Think of it, you’ll get to dance in the streets, pointing accusatory fingers at everyone saying “See! See! I told you we’re an evil empire! I told you! I’m right! I’m sooooo right!” Yes, that will truly be a glorious moment in our nation’s history. And just think, it will be in no small part thanks to your efforts and the efforts of Ron Paul supporters like you.

          Heck, there’s no difference between Barack Obama and Rick Perry. There’s no difference between Barack Obama and Newt Gingrich. There’s no difference between Barack Obama and Rick Santorum. There’s no difference between Barack Obama and Michelle Bachman. We already have an enemy of liberty in office and he’s seeking re-election, but hey, you have to be more right than anyone else, even if you’re wrong. That’s what’s important after all.

          But of course, we’re you’re a child everything really is all about you. It’s all happy fun time. The future is hardly worth thinking about, to say nothing of consequences.

          scottinwisconsin in reply to retire05. | December 28, 2011 at 9:49 am

          Ok, I’ll bite.
          Let’s vote for the lesser of 2 evils, and elect Newt or Mitt. Or big government Texas.
          Then, over the next 4 years, we get much bigger government, we get global warming rules, we get more police state homeland securty regulation. We get TSA frisking at bus stops and spontaneous check points around the nation.
          We get more foreign adventures, and a new war in Iran and Syria.
          And then he “compromises” on taxes like Bush 41, and they go thru the roof.
          Then he appoints a couple squishy Supreme Court justices, and we find ourselves 5 to 4 AGAINST gun rights. And they start rounding them up (See Australia).
          Now tell me, what do we do in 2016? We’ve sold our souls to go with the ELECTABLE Republican, and we’re stuck with him. The Dem running against him will be worse
          We can’t campaign for true small government, since OUR GUY sucks, and likes BIG government.
          No primary challenge — that’s uncivilized!
          Nope. I’m done voting for the lesser of 2 evils. It’s a dead end.
          My vote is my consent, and I withhold it from anyone who embraces the police state and big government. And that’s everyone but Paul and Johnson.
          You can sell your soul. Sleep well.

        You don’t know how close you are to the truth about Perry, (Whose name rhymes with Kerry and displays many of the attributes thereof). Perry is a corrupt special interest politician, bully and weak leader. Just look at his immigrations record in Texas.

        I just wish he would go away from my adopted state…

They need to fix this, and fast. You can’t be leaving out almost our entire field of candidates in what is arguably the most important election of our lifetime, and definitely the most important for Republicans.

Every name/signature should have an address AND be verified, (just as the Recall signatures in Wisconsin should be verified, and just as Obama’s signature from the last election are turning out not to be) but this last minute near doubling of the required signatures is just plain wrong.

Put our guys on the ballot. Let the people vote.

    Actually, they’re checking the signatures for the first time (or at least those that don’t appear to be 50% greater than the unchanged statutory requirements) in response to an independent candidate’s still-pending lawsuit over the previous practice of non-checking of signatures of party candidates by the party versus the State Board of Elections’ checking of signatures of third-party/independent candidates.

It’s up now, and the facts stipulated to by Perry are “trubling”:

6. On August 15, 2011, Plantiff filed his Statement of Candidacy with the Federal Elections Commission. See Exhibit D.

7. On October 31, 2011, Plantiff signed and affirmed, in the presence of a notary, hid declaration of Candidacy for the Commonwealth of Virginia. See Exhibit E.

8. On December 22, 2011, Plantiff submitted to the Board over 6,000 petition signatures from qualified Virginia voters.

Perry’s relying on Buckley v. American Constitutional Law Foundation to overturn the requirement that all petition circulators be either eligible or registered qualified voters of Virginia, and also further alleging that requiring 10,000 (with 400 from each Congressional district) signatures from those pledging to participate in the primary is a violation of free speech and association.

    markn in reply to steveegg. | December 27, 2011 at 8:41 pm

    I’m sure Professor Jacobson will have something to say on the legal merits, and I’ll look forward to that. But that last part sounds (to this Math professor, anyway) like a suit I’d expect a *democrat* to make in the face of laws enforcing ballot integrity.

Perry will lose, there’s no first amendment right to be on a ballot, that would be ridiculous. The right of political speech concerning petition circulators is irrelevant, if he wanted to contest that law, he should have done it before. The proper remedy would be to strike that aspect of the law, not allow Perry on to the ballot.

    Milhouse in reply to Awing1. | December 27, 2011 at 8:27 pm

    That’s ridiculous. Why challenge a law before you see whether you can comply with it? I don’t even see how he’d have standing to challenge it until now.

      Awing1 in reply to Milhouse. | December 27, 2011 at 10:00 pm

      He would have had standing the moment he tried to use circulators that weren’t eligible to vote and the state prevented him from using them. He can’t make the claim now that he WOULD have used them if he could have, and that would have allowed him to qualify, there’s no possible way he could prove that. He can certainly sue now to have the law changed, but there’s no way the remedy should be to put him on the ballot, because there’s no proof that the reason he wasn’t on the ballot was because he was prevented from using the prohibited circulators.

        Milhouse in reply to Awing1. | December 28, 2011 at 4:03 am

        Excuse me? When exactly did the state prevent him from using them, before this week? Supposing he’d used one, do you imagine that person would have been arrested?! On what charge? The state’s action is in rejecting petitions circulated by non-residents, and that didn’t happen until now.

        Besides, even if he had standing, what would be the point of suing when he didn’t yet know whether he’d need to? If he could make the deadline with a sufficient number of signatures then the constitutionality of the requirements would be moot.

          Awing1 in reply to Milhouse. | December 28, 2011 at 9:43 am

          Wow, you are not very bright are you? Nothing in his complaint states that he collected signatures with non-approved circulators. If he had done that, and those signatures were rejected, you would be right. Unfortunately for you, our world works on reality, not fantasy.

          Hi Milhouse,

          In complete hindsight, what Perry SHOULD have done if he wanted to use out-of-state circulators:

          On July 1, 2011 he should have had one out-of-state circulator get one signature, put it in a candidate box and delivered it to the Virginia State Board of Elections with a note stating that an out-of-state circulator was used and thus the required sworn statement could not be signed.

          The Board of Elections would then reject the box for lack of the sworn statement, at which point Perry would have had standing to sue because of the criminal liability that would otherwise attach by submitting a false sworn statement.

          Otherwise, Perry would have been suing for an “advisory” opinion without a true case or controversy being present.

I’ll wait until the professor weighs in on this but I suppose if Perry can show that the rules were arbitrarily applied or that he was was treated differently from other candidates he may have some grounds.

This whole episode is starting to smell but I am not sure I want if US Federal Courts to determine that Virginia doesn’t have the right to control state elections. That strikes me as a Pyrrhic victory.

It would suit me just fine if Paul wins over Romney in Virginia. In fact, we Virginians may want to launch our own version of “Operation Chaos.”

I thought the restriction on circulators must surely be unconstitutional. I don’t understand how the VA people could have imagined that it was constitutional, or how Perry doesn’t win summary judgment on that claim.

    While most districts have held post-Buckley citizen/registered voter requirements for circulating petitions are unconstitutional, the 8th Circuit upheld North Dakota’s residency requirement. The Supreme Court has not revisited this since Buckley.

Good for Perry; I understand Newt is also planning something similar. The VA GOP manipulating the rules to promote Romney was shameful. It has made me think even less of Romney — who should be wanting to win primaries without such games. If Romney can’t prevail in the primary, how is he going to win the General Election?

Bachmann, Santorum and Huntsman didn’t even bother to turn in signatures, so as far as I am concerned these three are no longer serious contenders — they really weren’t planning to be on the ballot on Super Tuesday.

Romney’s 15,000 plus signatures were not reviewed — yet both Perry and Gingrich turned in over the amount needed, and somehow reviewed and a number to bring them under the requirements were rejected. Something smells. I am heartened to hear that this tactic by the elite GOP establishment in VA is being fought.

    retire05 in reply to Mutnodjmet. | December 27, 2011 at 9:27 pm

    mutnodjmet, perhaps someone should be looking into Bill Bolling’s part in all of this. Bolling is Virginia’s Lt. Governor AND Mitt Romney’s campaign manager in Virginia. Romney has been basically running his campaign out of Bolling’s campaign headquarters in Richmond. Bolling is running against Ken Cucinelli (VA AG) for the office of governor.

    A few weeks ago, Bolling made the statement that a Romney win in Virginia will help him win the Governor’s seat. Ummmmm?????

If I am reading the petition correctly, an Independent, not affiliated with a recognized “state” party, would not be eligible to run for office of President in Virginia, as each party must sign off on the candidate running from their party.

Virginia’s rules are a clear violation of Article II, Section 1 of the U.S. Constitution. Requiring residency and a registered voter of each district to be the only one that collects signatures for candidates, violates (IMHO) the First Amendment.

The sad part is that it is the Virginia voter who is cheated out of being able to select the candidate of their choice. And there were some things about the 15K signature rule (decided just last month after Michael Osborne filed a law suit against the Republican Party of Virginia [on October 25th], the fact that Bill Bolling is knee deep in this and that by reducing the candidates on the ballot to just two, Virginia will go from a proportional delegate count to winner-take-all.

Professor, it was reported that Ron Paul submitted 14,361 signatures, 639 less than the 15K benchmark set in November by the RPV. Yet, Paul’s position on the ballot was certified while his signatures were not verified, as Mitt Romney’s were not verified except by his own campaign (being run out of Bill Bolling’s Richmond campaign headquarters). An exception to the 15K rule was made for Ron Paul, but not the others.

(added) I claim no expertise in election law, but it does surprise me that there are only two counts (restriction on use of out of state circulators and freedom of association/speech). It’s not clear that the reason Perry failed to meet the requirement was the use of out of state circulators, and requiring valid signatures (put aside number) would not seem to impose some unconstituional restriction. The complaint indicates that Perry submitted only 6000 valid signatures, but published reports indicated almost twice that many. I’m surprised there was no issue made of the fact that Romney and Paul petitions were not verified because of an arbitrary decision that only petitions under 15,000 would be checked, a decision which apparenly was changed only a few weeks ago. Again, I’m not claiming election law expertise, but it does seem like the Complaint has the wrong focus.

The late add of a “15K/600 per” “safe harbor” was actually a tightening of that “safe harbor”. Apparently in the past, the RPV merely assumed that, as long as all the boxes were filled in and all the notarizations were present, it was all good.

Then came a lawsuit from an independent candidate for the state House of Delegates. Michael Osborne alleged that the RPV’s “scrutiny” of Israel O’Quinn’s nomination petitions, when compared to local registars’ signature-by-signature scruinty of his, was a violation of due process. That case is still pending, even though O’Quinn wiped the floor with Osborne in the election.

BannedbytheGuardian | December 27, 2011 at 9:47 pm


That is no way to treat a person putting themselves forward as a GOP candidate?

Why not just shoot them?

Ditto for voter who dares do a write in.

One other problem: Virginia has had to redraw its district lines due to the 2010 census. The lines were drawn, but the Democrats objected to the lines claiming that minorities would be disenfrancished (a problem they don’t seem to have with Sheila Jackson Lee’s 90% black district) and this will probably wind up in federal court, but not before the primary.

So it is possible that people are not sure what district they really are in and didn’t know when they signed the petitions. As the lines were required to be drawn by now, and would be in effect if not for the Democrats objections, that makes things even stickier in Virginia.

Here is a fairly objective take from Big Government on the topic. I can’t say all that’s asserted is accurate, or that the VA GOP will add Perry and/or Newt if law suits are brought. But the negative attention all this brings does not bode well for Virginia: not for our 2012 election, and not for Bill Bolling’s upcoming gubernatorial campaign.

Republican Party of Virginia, I sure hope you are listening, and take this opportunity for a mea culpa and make this right. Rules are rules. And yes, everyone knew the rules – until they were changed by the party in November, that is.

If the RPV put Perry and Gingrich on the ballot, explain the 11th hour rules change, and a proactive, positive plan to make necessary revisions in future, then this might blow over. If not, these suits, combined with the talking-heads and pundits pounding on this, will leave a very bad taste in the mouths of many who already doubt and distrust the Republican Party. Optics are important, as is transparency of the process.

I will be so disappointed in McDonnell (who is a major Republican player as governor of the state) and the rest if the “fix” is indeed in for Romney. And ashamed.

Virginia voters are left with two choices: write-in or stay home.

My reading of the complaint is that he has a good chance of winning on Count #1, Count #2 seems frivolous.

Count #1 he’s saying that VA requires all people collecting the petition to be registered voters of VA. Problem is, there’s precedent in previous cases in other states where that has been ruled an unconstitutional violation of free speech. His claim is that the exclusion of out of state circulators prevented him from collecting the necessary signatures and VA violated his 1st amendment right of free association. Multiple precedents support his position.

Count #2 seems frivolous. He’s basically saying the bar was set too high and therefore that’s a violation of his 1st amendment rights. No precedent to back this up. I don’t see them making a convincing argument here.

“I’m surprised there was no issue made of the fact that Romney and Paul petitions were not verified because of an arbitrary decision that only petitions under 15,000 would be checked”

Seems to me this lawsuit is about getting Perry on the ballot. What you are describing above would likely result in Paul / Romney’s petitions receiving the scrutiny they should already have had, with the result that either/both might find themselves off the ballot.

If this lawsuit fails to get him back on, don’t be surprised if he or Gingrich sues again to get Paul / Romney off.

Ok. Here’s my initial take on the Perry complaint, after reading the complaint and cross-checking against the most recent 4th Circuit Court of Appeals case that I could find on point.

It appears that Lux v. Judd, No. 10-1997, decided July 6, 2011 by the 4th Circuit is going to partially control here. Lux was a House of Representatives candidate who did not live in the 7th district he was running in, and thus was ineligible to circulate petitions on his own behalf. It appears Lux has cemented Buckley, Meyer and Krislov as applicable precedent in the 4th Circuit regarding elections law.

In Lux, the 4th Circuit said that “[a]gainst the backdrop of [Meyer and Buckley], we can no longer say that an in-district witness requirement is necessarily justified by a state’s desire to gauge the depth of a candidate’s support.”

Footnote 5 in Lux notes the following in adopting 7th Circuit reasoning that ballot initiatives vs. candidates, and witnesses vs. circulators are false distinctions in this argument: “Meyer’s apparent rejection fo the proposition that something more than a threshold signature requirement is necessary to assure popular support is plainly applicable in the candidate context. Cf. Krislov v. Rednour, 226 F.3d 851, 861 (7th Cir. 2000).

However, there’s a footnote in Lux that the Supreme Court’s decision in Buckley assumend without deciding “that a residence requirement would be upheld as a needful integrity-policing measure” that the SCOTUS was concerned with state residency requirements (in order to make the petition submitters subject to Sec. of State subpoena power. Buckley, 525 US 197.

Due to procedural positioning, Lux was an appeal of a 12(b)(6) “failure to state a claim upon which relief can be granted” dismissal. Lux was remanded to the district court for the district court to conduct an independent analysis of the state interest served by the district residency requirement for witnessing signatures, and to conclude whether section 24.2-506 unduley restricts Lux’s constitutional rights.

Back to the Perry complaint. I think that count 1 is a Trojan Horse to get Count 2 onto the complaint and make it look more reasonable. Count 1 is valid, but I don’t think that’s what they’re going for.

My initial guess is that the Perry camp is setting up the argument that the Virginia Legislature’s 10K signature requirement is Unconsititutional due to the minimum requirements set per Congressional district (400 signatures per district) that is also set.

My guess is that they’re going to argue that the excess signature requirement is “too severe a burden on core political speech, subject to strict scrutiny and that the state’s interest is not sufficient to justify the burden” imposed and thus serves no permitted purpose. That’s the only reason I can think of to argue that they submitted over “6000” signatures, rather than the 10,000 required by VA election law (400/district x 11 districts = 4,400).

My further guess is that they’re NOT making the “arbitrary and capricious” argument against the VA Republican Party’s decisions about raising the “deemed” requirement because they’re hoping that they can take out the upper limit requirement entirely, leaving the arbitrary and capricious argument as a second salvo if they need it.

All that being said, I think that they still are going to lose this challenge UNLESS they’re actually sitting on a pile of signatures collected by non-Virginia residents that they did not submit or that were rejected by the Republican Party. Awing1 above has a point that the Perry camp needs to suffer a rejection of proffered signatures by non-approved circulators before he’s got standing. I think that to say “well we would have done it differently if…” is too removed from the facts as they currently lay for the court to grant relief.

Thanks Chuck, for the information and research. I was wondering why the Perry campaign was not going after the arbitrary nature of checking all signatures for validity under 15,000, but none of those that reach the 15,000 mark. I guess this is their opening bid and perhaps they are indeed sitting on signatures that were rejected because of non-approved circulators. Either way O really appreciate the research you have done to illuminate this further, thanks again.