Bloomberg News

Virginia’s Primary Ballot Rules Are Unlawful, Perry Tells Court

January 18, 2012

Jan. 13 (Bloomberg) -- Texas Governor Rick Perry and three other Republican presidential candidates asked a federal judge to put them on Virginia’s primary ballot even though they failed to collect the 10,000 valid signatures demanded by the state.

U.S. District Judge John A. Gibney Jr. in Richmond today heard arguments from the GOP candidates who claim Virginia’s primary rules violate their constitutional rights. Gibney, who on Jan. 9 ordered the state to refrain from sending out absentee ballots or printing regular ones while he considers the request, said earlier he’ll rule today on whether to maintain the order.

“I’ve not seen an argument from the state that there’s a compelling interest” for Virginia’s voting regulations, Joseph Nixon, a lawyer for Perry, told Gibney.

Whatever the courts rule about Virginia, where former Massachusetts Governor Mitt Romney and U.S. Representative Ron Paul of Texas are the only Republicans on the ballot, may have little influence on the course of this year’s presidential primary race. After winning Iowa and New Hampshire, Romney is ahead in public opinion surveys in South Carolina, which holds its primary on Jan. 21, and in Florida, which has a Jan. 31 contest.

Romney victories in both states are likely to clear the field, except for Paul, well before Virginia comes up on the presidential primary calendar on March 6.

Perry’s lawsuit, filed Dec. 27, sought a temporary order to halt state officials from printing the ballots, or to require them to include his name.

Constitutional Rights

He claimed his constitutional rights were violated by the state’s requirement that anyone circulating a petition for a candidate be eligible to vote in Virginia. He also argued that changes to ballot access made in May weren’t cleared under the Voting Rights Act and challenged the state’s interpretation of the signature rules.

Republican candidates Rick Santorum, Newt Gingrich and Jon Huntsman, who joined the suit, were also barred from the primary because of their failure to get enough signatures from qualified Virginia voters. They, with Perry, argued that Virginia’s rule requiring petition circulators to be eligible Virginia voters violates “freedoms of speech and association protected by the First and Fourteenth Amendments” of the U.S. Constitution.

Gibney’s ruling may be appealed to the U.S. Court of Appeals in Richmond.

Emergency Appeal

Virginia Attorney General Kenneth Cuccinelli already made an emergency appeal of Gibney’s Jan. 9 ruling, saying that materials for the primary needed to go to the printer immediately to meet legal deadlines for getting ballots to absentee and overseas voters. The appeals court hasn’t ruled on the request.

Cuccinelli said in the filing that Perry “lacks standing to assert an injury arising from the inability to circulate his own petitions because there is no averment that he stood ready, willing and able to circulate his own petitions” and no basis for concluding that he would have collected enough valid signatures.

During today’s hearing, campaign advisers to the candidates testified that Virginia’s ballot requirements are a burdensome and expensive.

Joe Allbaugh, a former George W. Bush administration official who is now senior adviser to the Perry campaign, told Gibney the campaign will spend about $91,000 to get on primary ballots nationally. Virginia accounts for about $45,000 of that sum, he said.

Petition Signatures

Perry submitted “over 6,000 petition signatures” deemed valid by state officials, according to a court filing by the Texas governor.

While former House Speaker Gingrich submitted 11,050 signatures to the Virginia State Board of Elections, less than 10,000 were verified as registered voters, according to a filing by the candidates.

Santorum submitted more than 8,000 signatures. Huntsman didn’t file papers declaring his candidacy in Virginia because he couldn’t meet the signature requirement, according to the filing.

If Perry’s lawsuit fails, Paul will have an opportunity in Virginia to see the anti-Romney vote consolidate around his candidacy, which would likely give him a share of the state’s 49 convention delegates.

Paul has vowed to remain in the race until the end as he did in the 2008 primary. His campaign is unique in that he has a base of libertarian supporters who have shown an ability to raise money quickly and in large sums. After putting out a call for contributions on Dec. 16, the Texas doctor collected $4 million in a day.

Reassess Campaign

Perry, who came in fifth in Iowa and sixth in New Hampshire, has said he will reassess his campaign after the South Carolina contest.

An Insider Advantage poll released Jan. 11 showed Romney ahead in South Carolina with 23 percent, Gingrich in second with 21 percent, former Pennsylvania Senator Rick Santorum at 14 percent, Paul at 20 percent, and Perry with 5 percent support.

Santorum, who came in second in Iowa only to fall to fifth in New Hampshire, is also likely to take stock of his candidacy if he doesn’t perform well in the Palmetto State.

Gingrich today opened an office in Orlando, Florida and intends to begin airing advertisements there after the South Carolina primary, said Jose Mallea, the campaign’s Florida director.

The case is Perry v. Judd, 3:11-cv-00856, U.S. District Court, Eastern District of Virginia (Richmond). The appeal is Perry v. Judd, 12-1042, U.S. Court of Appeals for the Fourth Circuit (Richmond).

--With assistance from Jeanne Cummings in Washington. Editors: Fred Strasser, Peter Blumberg

To contact the reporters on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net; Bonnie V. Winston in Richmond, Virginia, at bvwinston@yahoo.com.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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