Rick Perry Wins A Legal Argument In Virginia, About A Year Too Late

Back when he failed to make the Virginia primary ballot because he failed to submit enough signatures, Rick Perry filed a lawsuit challenging in the decision that in part made the argument that Virginia’s law requiring all petition gatherers to be state residents was unconstitutional. The Judge hearing the case rejected the lawsuit, not because he disagreed with Perry’s arguments, but because he found that Perry had waived the right to challenge the law by waiting to file a lawsuit until after the petitioning deadline. Perry, who had been joined by Gingrich and others in the lawsuit, appealed the ruling but the appeal was ultimately rejected. Now, nearly a year after Rick Perry first entered the Presidential race, a Federal Judge in Richmond has ruled in favor of the argument Perry’s attorneys were making in another case filed challenging the law:

A federal judge in Richmond has found part of Virginia’s ballot access law unconstitutional because it requires people who circulate petitions for third-party presidential candidates to be state residents.

“The law places a severe burden on the plaintiffs’ freedom of speech and is not narrowly tailored to promote a compelling state interest,” such as preventing election fraud, wrote U.S. District Judge John A. Gibney.

He ruled on behalf of the Libertarian Party of Virginia and Darryl Bonner, a Pennsylvania resident who is a professional circulator of petitions. The judge barred the three members of the State Board of Elections from implementing the state residency restriction on people who circulate petitions.

Charles Judd, chairman of the elections board, said the state plans to appeal. Attorney General Ken Cuccinelli’s office will ask Gibney for a stay, pending the state’s appeal to the 4th U.S. Circuit Court of Appeals.

If it stands, the ruling could make it “somewhat easier — a bit easier” for presidential candidates such as Libertarian nominee Gary Johnson and former Virginia Rep. Virgil H. Goode Jr., the Constitution Party nominee, to qualify for the state’s presidential ballot in November, said Larry Sabato, head of the Center for Politics at the University of Virginia.

“It doesn’t make it simple,” said Sabato, noting that statewide candidates in Virginia face a high threshold for ballot access.

To get on the ballot, a party that has not amassed 10 percent of the vote in either of the past two statewide elections must amass 10,000 valid signatures from Virginia voters, including 400 from each of the 11 congressional districts.

Candidates such as Johnson and Goode face an Aug. 24 deadline to submit the signatures to the State Board of Elections.

The Tenth Circuit, the Sixth Circuit,and Ninth Circuit have all ruled in recent years that petitioner residency rules are unconstitutional. The 4th Circuit Court of Appeals, which covers Virginia, has not dealt with this issue directly. However, in a 1985 decision Libertarian Party of Virginia v. Davis, the Court recognized a state interest in having a residency requirement for petition circulators:

[T]he requirement that the witness be from the same congressional district as the petition signer serves the important purpose of assuring “some indication of
geographic as well as numerical support” by demonstrating “that within each congressional district there is at least one ‘activist’ sufficiently motivated to shoulder the burden of witnessing signatures.” It is difficult to imagine how the state could accomplish these objectives by less restrictive means. The statute does not limit the number of signatures that an individual may witness nor does it require that witnesses be members of the Libertarian Party.

Earlier this year [PDF], the Court remanded a 2010 case that relied on Davis over concerns that the 1985 ruling does not take into account subsequent opinions from the Supreme Court.

It’s unclear what impact this ruling will actually have given that the third-party candidates who wish to be on the ballot here in November have only 23 more days to submit their signatures. Unless a stay is granted by the Court, they’ll still have to comply with that ruling and it’s unlikely that the 4th Circuit w0uld rule on the merits of this case before then. So, for Johnson’s and Goode’s sake, I would hope that they’ve been gathering signatures in compliance with current law.

One thing that this decision makes clear, though, is that Perry should have filed a lawsuit long before the December 2011 filing deadline. He might have won, and that might have changed the field. Of course, considering how badly Perry did in the January primaries, it really wouldn’t have mattered anyway.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Tsar Nicholas says:

    Moot points for one guy are ripe points for the next guy, so it’s good to see that this judge ultimately came to the correct conclusion.