Was a Fourth Circuit Court of Appeals decision the death knell of Rick Perry's presidential campaign?
On Tuesday, the Fourth Circuit rejected Perry's motion to add his name to the Virginia Republican primary ballot. Thursday morning, Perry withdrew from the race and endorsed former House Speaker Newt Gingrich. Coincidence?
In December, Perry sued the Virginia Board of Elections (Board) to be added to the Virginia Republican primary ballot after he failed to satisfy state requirements to qualify for the election. To qualify for the ballot, a candidate had to submit petitions signed by 10,000 qualified voters, including 400 signatures from each of Virginia's 11 congressional districts, by 5 p.m. on December 22, 2011. Petition circulators must be qualified Virginia voters. The Board also required each candidate for the primary ballot to file a "Consent/Declaration of Candidacy" by that date.
Perry claimed that the restrictions were an unconstitutional restriction on his First Amendment free speech rights and Fourteenth Amendment freedom of association rights.
Out of a large field of Republican candidates, only Ron Paul and Mitt Romney satisfied the Virginia requirements to appear on the ballot. The Board claims Perry, Newt Gingrich, and Rick Santorum failed to submit 10,000 signatures, that Santorum failed to file his Virginia Declaration of Candidacy, and that Jon Huntsman neglected to file the declaration or submit any signatures.
Last week, we told you that U.S. District Judge John Gibney Jr. granted Gingrich, Huntsman, and Santorum's motion to intervene, giving the three other disqualified hopefuls a shot at getting on the Virginia Republican primary ballot. Judge Gibney also ordered the Board to wait to print ballots for the race -- including the absentee ballots which must be mailed by January 21 -- until the court made a decision on the candidates' claims.
The Fourth Circuit Court of Appeals ruled against Perry and the intervenors on Tuesday, finding that the candidates had ample notice of the policy and "every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would not have created the disruption" that the last-minute lawsuit prompted. The court also noted that "more onerous" ballot access requirements had been previously upheld, and six Republican candidates complied with identical requirements to qualify for the 2008 Virginia Republican primary.
The Fourth Circuit opinion included some good news for 2016 presidential hopefuls, including Perry: the petition circulator requirement is highly unlikely to withstand a First Amendment challenge because the law is not narrowly tailored to achieve a compelling state interest.
Despite this concession, the Fourth Circuit Court of Appeals didn't delve into the issue because laches precluded the court from granting the candidates relief. (Laches applied because none of the four collected the requisite 10,000 signatures.)
If you disagree with the petition circulator residency requirement, and plan to compete in the 2016 Virginia presidential primary, don't wait until the petition deadline to complain; start building your free speech rights challenge now.
- Perry v. Judd (Fourth Circuit Court of Appeals)
- Contribution Prohibition is Lawful Limit on Free Speech Rights (FindLaw's Fourth Circuit blog)
- Va. Republicans Ask State Elections Board to Delete Loyalty Oath from March Primary Ballot (The Washington Post)
- Wisconsin Amends Bar Dues Rules After Free Speech Rights Suit (FindLaw's Seventh Circuit blog)
- Cert Denied in Barr's Prosecution Laches Patent Challenge (FindLaw's Federal Circuit blog)