Why Perry, Gingrich, Huntsman and Santorum Are Not on the Virginia Ballot

Why Perry, Gingrich, Huntsman and Santorum Are Not on the Virginia Ballot

Summary

On January 13, 2012, the Court denied a request, by Rick Perry and other candidates, to order the placement of their names on the Republican primary ballot in Virginia.  The decision was made by Judge John A. Gibney, Jr. of the Richmond Division of the United States District Court for the Eastern District of Virginia.

The original lawsuit was filed by Rick Perry. Newt Gingrich, Rick Santorum and Jon Huntsman also later intervened.

Virginia requires 10,000 valid signatures for a candidate to be placed on the ballot. The petitions can only be circulated by Virginia residents.  Perry, Gingrich, Huntsman and Santorum did not have the required number of valid signatures by the deadline of December 22, 2011.

All of them submitted fewer than 10,000 total signatures, except possibly Gingrich, who claims to have submitted 11,050.

Judge Gibney believed it would likely be declared unconstitutional to require the petitions to be circulated by Virginia residents, but he did not think the 10,000 signature requirement was unconstitutional.  He denied their request to be placed on the ballot because he felt the candidates should have filed suit earlier and the Court would have ordered the Board of Elections to not enforce the residency requirement. Then the candidates would have still been able to meet the 10,000 signature requirement before the deadline.

Basically they waited too long to file suit about the residency requirement, and now it’s too late for them to collect the 10,000 signatures to get themselves on the ballot before the January 21 deadline for absentee ballots to be mailed.  It's even too late for them to revise the absentee ballot in time to meet their deadline.


Virginia's 10,000 Signature Requirement

Candidates must file a petition "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." 

Code of Virginia § 24.2-545(B) 

The deadline to file the petitions with the State Board of Elections was December 22, 2011.

Rick Perry filed petitions with fewer than 10,000 signatures.

Newt Gingrich claimed to have filed 11,050 signatures. Virginia State Board of Elections stated that fewer than 10,000 were valid, but they didn't know the precise number of signatures.

Jon Huntsman did not file any petitions because he didn't have the 10,000 signatures.

Rick Santorum says he submitted more than 8,000 signatures, but he claims his petitions were denied because they didn't have 10,000 total signatures.

Generally, candidates try to collect more than the required number of signatures, in case some of the signatures are invalid.  Newt Gingrich is the only one who might have collected more than 10,000 total signatures.  The rest of the candidates collected fewer than 10,000 signatures.

The candidates complained that the 10,000 signature requirement is unconstitutional as unreasonably burdensome.  Also, they complained that they couldn't get the 10,000 signatures because of Virginia's residency requirement.


Virginia's Residency Requirement

According to the Virginia State Board of Elections, the person who circulates the petition must sign an affidavit at the bottom the petition: 

(i) My resident address is ____

(ii) I am, or I am eligible to be, a registered and qualified voter in Virginia in the County/City of ____

(iii) I am, or eligible to be, qualified to vote for the office for which this petition is circulated

(iv) I personally witnessed the signature of each person who signed this page or its reverse side. 

http://www.sbe.virginia.gov/cms/documents/20120306SBE-545_letter.pdf 

Basically the petition circulators must be Virginia residents.

The candidates claim they could have met the 10,000 signature requirement if they had been able to use non-residents to circulate petitions in Virginia.

Joe Allbaugh, the national campaign chair for Rick Perry, testified that Perry has thousands of out-of-state volunteers lined up to circulate petitions in Virginia.

Blake Harris, the ballot access coordinator for the Huntsman campaign, testified that buses of college students from Washington, D.C. were available as petition circulators.

Mark Tate, the Virginia ballot access coordinator for Santorum for President, listed five individuals who collected signatures in Virginia that were unable to be counted because of the residency restriction. 

Judge Gibney's Findings

http://docs.justia.com/cases/federal/appellate-courts/ca4/12-1042/12/ 

The Court believes that the residency requirements for petition circulators will likely be declared unconstitutional, and the plaintiffs will ultimately prevail. (p. 18) 

The Court finds that the plaintiffs are not likely to prevail on their challenge to the 10,000 signature requirement.  The Court, therefore, cannot fashion relief that does not include compliance with the 10,000 signature requirement. (p. 20) 

Had the case been timely filed, the Court would have ordered the defendants not to enforce the residency requirement for petition circulators, and the plaintiffs could have tried, with the expanded pool of campaign workers, to get the 10,000 signatures. (p. 22) 

The plaintiffs have waited too long to file, and the doctrine of laches bars their claim.  The Commonwealth is far along in the electoral process.  The primary election is so close that the plaintiffs cannot gather the requisite signatures to get on the ballot. (p. 22)

The hearing was January 13.  Virginia’s primary is March 6.  That is 53 days later.  Is the election too close that the plaintiffs cannot gather the rest of their signatures in time to get on the ballot?

The answer lies with absentee ballots.

Absentee Ballots

Judge Gibney noted: 

To comply with federal law, absentee ballots must be distributed on or before January 21, 2012. (p. 11)

According to the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. §1973ff-1(a)(8)(A), absentee ballots must be mailed “at least 45 days before an election for Federal Office, not later than 45 days before the election.”

The Virginia primary is March 6.  45 days before that day is January 21.  This hearing was on January 13. 

Don Palmer, the Secretary of the State Board of Elections, testified that "as of this date, absentee ballots cannot be prepared before they must be available." (p. 11)