perry et al v. judd et al opposition to motion for injunction
TRANSCRIPT
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Record No. 12-1067
_________________________________
United States Court of Appeals
For the Fourth Circuit
_________________________________
THE HONORABLE RICK PERRY,Plaintiff-Appellant-Movant
THE HONORABLE NEWT GINGRICH, THE HONORABLE JON
HUNTSMAN, JR., AND THE HONORABLE RICK SANTORUM,Intervenor-Plaintiffs,
v.
CHARLES JUDD, KIMBERLY BOWERS, AND DON PALMER,members of the Virginia Board of Elections, in their official capacities,
Defendants-Appellees-Respondents.
________________
Appeal from the United States District Court
for the Eastern District of Virginia
Richmond Division
_________________
RESPONSE TO GOVERNOR PERRY'S EMERGENCY MOTION
FOR INJUNCTION PENDING APPEAL
KENNETH T.CUCCINELLI,II
Attorney General of Virginia
E.DUNCAN GETCHELL,JR.
(VSB#14156)
Solicitor General of Virginia
WESLEYG.RUSSELL,JR.(VSB #38756)
Deputy Attorney General
JOSHUAN.LIEF
(VSB #37094)
Senior Assistant Attorney General
OFFICE OF THE ATTORNEY
GENERAL
900 East Main Street
Richmond, Virginia 23219Telephone: (804) 786-2436
Counsel for Charles Judd, Kimberly
Bowers and Don Palmer
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................. iiI. INTRODUCTION AND STATEMENT OF FACTS .................... 1II. GOVERNOR PERRY'S MOTION IS GOVERNED BY AN
INDISPUTABLY CLEAR STANDARD. ...................................... 4III. GOVERNOR PERRY IS CLEARLY GUILTY OF LACHES AND
HIS RIPENESS ARGUMENT TO THE CONTRARY IS
FOUNDED ON AN ERROR OF LAW. ........................................ 5IV. ADDITIONAL REASONS FOR DENYING THE RELIEF
REQUESTED ............................................................................. 10A. Under Any Standard Governor Perry Lacked Standing When
He Filed His Suit. .............................................................. 10B. It Is Not Indisputably Clear That Governor Perry Is Entitled
To Prevail On The Merits. ................................................ 13
C. It Is Not Indisputably Clear That Governor Perry Will SufferIrreparable Harm From The Residency RequirementIn The Absence Of An Injunction. .................................... 15
D. The District Court's Findings Of Harm In Support Of ItsLaches Findings Defeats Any Claim That It Is Indisputably
Clear That The Balance Of Equities And The Public Interest
Favor An Injunction On Appeal. ....................................... 16CONCLUSION .................................................................................... 17CERTIFICATE OF SERVICE ............................................................. 19
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TABLE OF AUTHORITIES
Page
CasesAm. Party of Tex. v. White, 415 U.S. 767 (1974) ................................. 15
Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................................... 15
Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) ................................. 13
Brown v. Gilmore, 533 U.S. 1301 (2001) (Rehnquist, C.J., in chambers)
............................................................................................................ 5
Buckley v. American Constitutional Law Foundation, 525 U.S. 182
(1999) .......................................................................................... 13, 14
Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ............... 9
Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982) ........ 7
Communist Party of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist,
J., in chambers) .................................................................................. 5
Hart v. Secretary of State, 715 A.2d 165 (Me. 1998) ........................... 14
Initiative & Referendum Ins. v. Jaeger, 241 F. 3d 614 (8th Cir. 2001)14
Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C,
1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999) ...................... 14
Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011
U.S. Dist. LEXIS 23383 (D.N.J. March 7, 2011) ............................. 12
Jenness v. Fortson, 403 U.S. 431 (1971) ............................................. 16
Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008) ........... 8
Kean v. Clark, 56 F. Supp.2d 719 (S.D. Miss. 1999)........................... 14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................... 11, 12
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .............................. 9
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Lux v. Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers) 5, 15
Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va. 2010) ................... 13
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................... 7
Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir.
1997) ................................................................................................... 9
Mirant Potomac River, LLC v. EPA, 577 F.3d 223 (4th Cir. 2009) .... 11
Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ..................... 15
Muntaqim v. Coombe, 449 F.3d 371 (2d Cir. 2006) (en banc) (per
curiam) .............................................................................................. 11
Nader v. Keith, 385 F. 3d 729 (7th Cir. 2004) ....................................... 7
Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312 (1986)
(Scalia, J., in chambers) ..................................................................... 5
Public Citizen v. Miller, 813 F. Supp. 821 (N.D. Ga. 1993), aff'd, 992
F.2d 1548 (11th Cir. 1993) ................................................................. 6
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ............. 12, 13
Smith v. Bd. of Election Commrs for the City of Chi., 587 F. Supp. 1136
(N.D. Ill. 1984) .................................................................................... 7
Storer v. Brown, 415 U.S. 724 (1974) .................................................. 15
Va. Soc'y for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) .......... 8
Westermann v. Nelson, 409 U.S. 1236 (1972) (Douglas, J., in chambers)
.......................................................................................................... 17
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................ 4
Wis. Right to Life State PAC v. Barland, No. 11-2623, 2011 U.S. App.
LEXIS 24566 (7th Cir. Dec. 12, 2011) ................................................ 8
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StatutesVa. Code Ann. 24.2-545(B) ................................................................ iv
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I. INTRODUCTION AND STATEMENT OF FACTSGovernor Perry recites that he "filed this lawsuit because he
believes he was unconstitutionally restricted from having his name
appear alongside others on the ballot for the Republican primary for the
Commonwealth of Virginia." (Doc. 3-1). However, what keeps him off
the ballot is the "plainly constitutional," (Case 3:11-cv-00856-JAG Doc.
73 at 12), requirement of Va. Code Ann. 24.2-545(B) that a
presidential primary candidate obtain 10,000 valid signatures statewide
with at least 400 in each of Virginia's eleven congressional districts.
While Governor Perry now complains about the statutory requirement
that each petition circulator be voter eligible somewhere in Virginia,
rather than having challenged that requirement at a time when success
would have allowed him to use nonresident circulators, he attempted to
comply with the requirement by hiring a private vendor. Furthermore,
at this late date, the district court necessarily found that "the Court can
only speculate whether [Perry and others] would have been placed on
the ballot" had they been permitted to use out-of-state circulators. (Id.)
With respect to timing, Governor Perry's campaign was permitted
to "collect the requisite signatures for ballot access between July 1, 2011
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and December 22, 2011." (Id. at 10). Although Governor Perry declared
for the presidency on August 13, 2011 and "filed his Statement of
Candidacy with the Federal Election Commission on August 15, 2011,"
he only "signed and affirmed . . . his Declaration of Candidacy for the
Commonwealth of Virginia on October 13, 2011." (Id. at 6). Governor
Perry's national campaign manager, Joe Allbaugh, testified that he
joined the campaign October 23, 2011 and that thereafter the vendor
was hired. This was necessarily less than two months before the
petitions were due even though the Perry campaign "knew the rules in
Virginia many months ago." (Id. at 1). As the district court put it: "In
essence, they played the game, lost, and then complained that the rules
were unfair." (Id. at 2).1
1The conjectural nature of Governor Perry's claim is emphasized by an odd
circumstance. Governor Perry personally certified 11,911 signatures to the State
Board of Elections on December 23, 2011 (Defendants' Ex. 6) (App. A), despite
now acknowledging that approximately 6,000 signatures were filed. (Case 3:11-
cv-00856-JAG Doc. 73 at 6 n.4). According to his campaign manager, Governor
Perry based his certification upon a claim of the vendor. The unexpected
hospitalization of the vendor's Virginia agent left the campaign unable to determine
whether the other 5,911 signatures were in fact collected. Hence, it may be that the
circulator limitations did not even conjecturally prevent the Perry campaign from
collecting 10,000 signatures. It is entirely possible that the critical number of
signatures were simply lost.
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With respect to harm to defendants and the public interest if
names were to be added to the ballot at this late date, the district court
found the following with ample evidentiary support:
This lack of diligence has significantly
harmed the defendants. The Board established a
reasonable, necessary, and comprehensive
schedule of tasks leading to the primary election.
Among those tasks is the printing of absentee
ballots. To comply with federal law, absentee
ballots must be distributed on or before January
21, 2012. To meet this deadline, the Board set atimetable for the localities to design ballots, order
them from printers, proofread mock-ups, receive
them, and mail them out. By January 13, 2011,
the date of the preliminary injunction hearing,
the local boards should have received absentee
ballots, and begun the process of mailing them
out. The filing of this suit, however, has changed
the Board's careful scheduling into a chaotic
attempt to get absentee ballots out on time. Thisalone amounts to damage that satisfies the laches
requirements. Don Palmer, the Secretary of the
State Board of Elections, testified without
contradiction that printing ballots is complex and
requires a number of technical steps to imbed
information into the ballots themselves and to
program computers to count them. He also
testified that, as of this date, absentee ballots
cannot be prepared before they must be available.
(Id. at 12) (footnote and citation omitted).
Governor Perry does two things in his Emergency Motion. First,
he asks this Court to conclude that the district court "abused its
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discretion" in finding laches. (Doc. 3-1 at 6). Second, he seeks the
benefit in this Court of the district court's weighing of the four factors
set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 19
(2008).2 (Doc. 3-1 at 5, 12-13). These arguments misapprehend the
standard applicable to emergency motions for injunction on appeal.
II. GOVERNOR PERRY'S MOTION IS GOVERNEDBY AN INDISPUTABLY CLEAR STANDARD.
"TheAll Writs Act, 28 U.S.C. 1651(a), is the only source of . . .
authority to issue . . . an injunction" preventing "the enforcement of a
presumptively valid state statute." Brown v. Gilmore, 533 U.S. 1301,
1303 (2001) (Rehnquist, C.J., in chambers). "Such an injunction is
appropriate only if 'the legal rights at issue are indisputably clear.'"
(citing Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S.
1312, 1313 (1986) (Scalia, J., in chambers)) (quoting Communist Party
2The only way to reconcile the district court's weighing of the Winter factors in
favor of Governor Perry on the residency requirement with its ruling that "[n]o one
can seriously argue that the [10,000 signature] rule is unduly burdensome" is to
view the ruling on the residency voter eligibility requirement as a hypothetical or
advisory statement of what the district court would have done had a timely
challenge been mounted against that requirement. This conclusion is reinforced by
the district court's recognition that in the world as we find it "[t]he Court . . . cannot
fashion relief that does not include compliance with the 10,000 signature
requirement." (Case 3:11-cv-000856-JAG Doc. 73 at 20).
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of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist, J., in chambers).
Gilmore, 533 U.S. at 1303.
The indisputably clear standard can be frustrated by a dissent in
the case under review, Gilmore, 533 U.S. at 1303, by express
reservation of an issue in an opinion of the Supreme Court, Lux v.
Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers), and by a
circuit split on the issue. Id. To meet the indisputably clear standard
the law must be clearly settled, and on the issue advanced by Governor
Perry here, it is not.
III. GOVERNOR PERRY IS CLEARLY GUILTY OFLACHES AND HIS RIPENESS ARGUMENT TO THE
CONTRARY IS FOUNDED ON AN ERROR OF LAW.
Governor Perry claims that he is not guilty of laches because his
First Amendment claim against the circulator limitations was not ripe
until he failed to be included on the ballot. (Doc. 3-1 at 8-9). The
district court rightly rejected this argument, saying:
Here, the plaintiffs claim a loss of their
First Amendment rights of free speech and
association. Any injury arose when theCommonwealth limited the categories of people
who could spread their message, by banning
petition circulators from out-of-state. The first
day the plaintiffs were unable to communicate
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their message effectively was the first day they
could circulate petitions.
(Case 3:11-cv-00856-JAG Doc. 73 at 10).
Governor Perry's authorities are not to the contrary. In Public
Citizen v. Miller, 813 F. Supp. 821, 827 (N.D. Ga. 1993), aff'd, 992 F.2d
1548 (11th Cir. 1993), laches was not found where a suit challenging a
majority vote requirement was not brought until after an election in
which the candidate supported by the challengers failed to receive a
majority of votes although he did receive a plurality. The analysis
rested on the consideration that the claim would not have been clearly
ripe before the election because the contingency was not reasonably
certain to occur. Here, the claimed injury, an inability to have non-
Virginians circulate petitions, was not contingent, but rather occurred
as soon as Governor Perry declared his candidacy.
Nor is it true that even if "Movant's injuries began when he first
filed his candidacy, he cannot be charged with a lack of diligence prior
to submitting his petition signatures, as he reasonably expected to be
able to acquire the number required by section 24.2-545(B) of the
Virginia Code." (Doc. 3-1 at 9) (citing Smith v. Bd. of Election Commrs
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for the City of Chi., 587 F. Supp. 1136, 1142 (N.D. Ill. 1984)) (citing
Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982)).
This is not even the law in the Seventh Circuit. Nader v. Keith,
385 F. 3d 729, 736 (7th Cir. 2004) (denying a motion for preliminary
injunctive relief against similar ballot access requirements inter alia,
that the "suit [was] filed so gratuitously late in the campaign season . . .
only a little more than four months before the election," noting that the
plaintiff "could easily have filed suit at the same time he declared his
candidacy, and "[t]here would be no question of his standing to seek
such relief in advance of the submission or even collection of any
petitions.") (emphasis added).
The courts of appeals, including the Fourth Circuit, have held
repeatedly that First Amendment challenges to election laws brought
well in advance of their application are ripe for judicial review. See
Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (holding that a pre-
enforcement challenge to Virginia's open primary laws as violating
"plaintiffs' First Amendment rights to freely associate" was "fit for
judicial review" despite the law not being capable of being applied for
two years because it "present[ed] a purely legal question" and the
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hardships favored early resolution, because the "primary election likely
would be resolved before an action brought" post-enforcement "could
reach final decision."); see also, Wis. Right to Life State PAC v. Barland,
No. 11-2623, 2011 U.S. App. LEXIS 24566, at *17-*19 (7th Cir. Dec. 12,
2011) (restating the rule that "in challenges to laws that chill protected
speech, the hardship of postponing judicial review weighs heavily in
favor of hearing the case" and holding that the First Amendment
challenge to a state election law was "ripe for judicial resolution");Kan.
Judicial Review v. Stout, 519 F.3d 1107, 1116, 1118 (10th Cir. 2008)
(holding that "[t]he principle that one does not have to await the
consummation of threatened injury to obtain preventive relief is
particularly true in the election context" in finding a First Amendment
challenge to state law restricting petition circulation ripe for judicial
review (internal quotation marks omitted)); cf. Va. Soc'y for Human Life
v. FEC, 263 F.3d 379, 389-90 (4th Cir. 2001) (holding that a challenge to
an FEC regulation of political speech was "ripe for review" because the
regulation required the plaintiff "'to adjust its conduct immediately'"
(quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990)));
Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129, 132, 133
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(8th Cir. 1997) (holding that a "pre-enforcement challenge to [an FEC
regulation was] suitably ripe. . . . because [the regulation] allegedly
chill[ed] protected First Amendment activity."); Chamber of Commerce
v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (holding that a "party has
standing to challenge, pre-enforcement, . . . the constitutionality of a
statute if First Amendment rights are arguably chilled, so long as there
is a credible threat of prosecution," and, accordingly, rejecting a
ripeness argument because "[t]he issue presented is a relatively pure
legal one that subsequent enforcement proceedings will not elucidate").
Governor Perry's claim that defendants have suffered no prejudice
(Doc. 3-1 at 10-12) is demonstrably wrong given the detailed finding of
the district court quoted in the Introduction. Supra at I, 1-2. Governor
Perry's argument - offered without supporting citations - that the
ballots had not been printed as of the date of the district court hearing
(Doc. 3-1 at 10-11) is contrary to the uncontroverted testimony of
Donald L. Palmer that almost one hundred percent of jurisdictions had
printed some ballots and that reprinting would cost hundreds of
thousands of dollars, threaten disruption, and ensure that some early
and handicapped voters would not have access to ballots when they
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applied for them. The argument that Governor Perry only delayed two
business days in bringing suit simply recycles his erroneous ripeness
argument, and thus, is similarly incorrect.
IV. ADDITIONAL REASONS FOR DENYINGTHE RELIEF REQUESTED
A. Under Any Standard Governor Perry LackedStanding When He Filed His Suit.
As the district court observed, to have standing "a litigant must
demonstrate: (1) a distinct and palpable injury, (2) a fairly traceable
causal connection between the claimed injury and the challenged
conduct, and (3) a substantial likelihood that the injury is redressable
by the relief requested." (Case 3:11-cv-00856-JAG Doc. 73 at 13)
(citations omitted). It is well established that a claimed injury is not
redressable if it is caused by a legal act as in the case of requiring
10,000 signatures or is caused by the actions of a third party as
with the possibility that the vendor obtained 10,000 valid signatures
but lost almost half of them. Governor Perry is not being denied a place
on the ballot because of the circulator residency/voter eligibility
requirement. He is being denied a place on the ballot because he did
not meet the constitutionally sound requirement of submitting 10,000
valid signatures by the constitutionally valid deadline. This
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circumstance made his claim nonredressable at the time suit was filed.
See Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th Cir.
2009) (No standing because injury "flow[ed] from Virginia's
Nonattainment Provisions" and hence could "not be fairly traced to
EPA's approval of Virginia's CAIR SIP"); Muntaqim v. Coombe, 449
F.3d 371, 376 (2d Cir. 2006) (en banc) (per curiam) (holding that an
inmate's "inability to vote in New York arises from the fact that he was
a resident of California, not because he was a convicted felon subject to
the application of New York Election Law," and thus that "he has
suffered no 'invasion of a legally protected interest'" as a result of his
felon status, because "there is no causal connection between New York
Election Law . . . and [the inmate's] inability to vote in New York, and a
favorable decision of this Court on his claim that New York Election
Law . . . violates the VRA would do nothing to enfranchise him."
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)));
Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011
U.S. Dist. LEXIS 23383, at *15-17 (D.N.J. Mar. 7, 2011) (holding that
certain plaintiffs lacked standing to challenge the constitutionality of a
federal gambling prohibition on the ground "that a favorable ruling
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would not redress plaintiffs' asserted injury. If PASPA were found
unconstitutional, New Jersey law would still prohibit the sports
gambling activities plaintiffs and their members seek to legalize."). See
also, Lewis, 518 U.S. at 357, 360 (The scope of injunctive relief for a
constitutional violation may not exceed the scope of the violation itself.).
Because his failure to obtain 10,000 signatures is sufficient to keep him
from being on the ballot independently of any other factor, he lacks
standing to challenge the independent requirement that petition
witnesses reside in the Commonwealth.
Similarly, if the vendor was the source of the injury, Governor
Perry also lacks standing. There must be "a causal connection between
the injury and the conduct complained of -- the injury has to be 'fairly
trace[able] to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not before the
court.'" Lujan, 504 U.S. at 560-61 (quoting Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 41-42 (1976));Bishop v. Bartlett, 575 F.3d 419,
421-22, 425 (4th Cir. 2009) (holding that a party "challeng[ing] the
process by which a proposed state constitutional amendment was placed
before voters" suffered an injury in fact by being deprived of the right to
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vote before his local government "issue[d] bonds for [a] certain . . .
development project[]," but failed to show that the denial of his right to
vote was caused by the process by which the constitutional amendment
was ratified, rather than the vote of his fellow citizens, which
constituted '"the independent action of some third party not before the
court.'" (quoting E. Ky. Welfare Rights Org., 426 U.S. at 41-42)). Thus,
if the vendor Governor Perry chose caused him not to obtain 10,000
valid signatures for medical reasons, the Governor lacks standing to
challenge the requirement that petition witnesses reside in the
Commonwealth.
B. It Is Not Indisputably Clear That Governor Perry IsEntitled To Prevail On The Merits.
Plaintiff in Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va.
2010), challenged a circulator/witness requirement for congressional
elections that such persons be voter qualified within the congressional
district. The Supreme Court inBuckley v. American Constitutional Law
Foundation, 525 U.S. 182, 195 n.16, 197 (1999), had expressly reserved
the question of whether a state residency requirement was a valid anti-
fraud device because it insured that petition circulators were within the
subpoena power of the state. 528 U.S. at 197. The Eighth Circuit had
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also upheld a state residency requirement in Initiative & Referendum
Ins. v. Jaeger, 241 F. 3d 614, 615-17 (8th Cir. 2001) (citing Kean v.
Clark, 56 F. Supp. 2d 719, 728-29, 732-34 (S.D. Miss. 1999) and
Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C,
1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999)); seealso Hart v.
Secretary of State, 715 A.2d 165, 168 (Me. 1998) (upholding state
residency requirements). Finally, the Supreme Court in American
Constitutional Law Foundation assumed in strong dicta that state voter
eligibility requirements were valid proxies for the elimination of felons,
illegal aliens, and minors from the circulator pool. 525 U.S. at 195 n.16.
When Lux sought an emergency injunction on appeal, it was
denied in the Fourth Circuit without opinion. Chief Justice Roberts in
chambers denied an injunction on appeal against the district residency
requirement based upon the Supreme Court's reservation of the
question of state residency inAmerican Constitutional Law Foundation
and the circuit split. Together these defeated any showing that
entitlement to relief was indisputably clear. Lux, 131 S. Ct. at 6-7.
Because we are dealing with the very type of state residency
requirement reserved by the Court in American Constitutional Law
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Foundation and because the circuit split persists, Governor Perry
cannot satisfy the indisputably clear standard for likelihood of success
on the merits.
C. It Is Not Indisputably Clear That Governor Perry WillSuffer Irreparable Harm From The Residency
Requirement In The Absence Of An Injunction.
In the first place, there is no free-standing constitutional right to
be on the ballot. Munro v. Socialist Workers Party, 479 U.S. 189, 194
(1986) ("States have an 'undoubted right to require candidates to make
a preliminary showing of substantial support in order to qualify for a
place on the ballot.'" (quotingAnderson v. Celebrezze, 460 U.S. 780, 788-
89 n. 9 (1983)));Am. Party of Tex. v. White, 415 U.S. 767, 788-89 (1974)
("requiring independent candidates to evidence a 'significant modicum
of support' is not unconstitutional." (footnote omitted)); Storer v. Brown,
415 U.S. 724, 732 (1974) ("'There is surely an important state interest
in requiring some preliminary showing of a significant modicum of
support before printing the name of a political organization's candidate
on the ballot -- the interest, if no other, in avoiding confusion, deception,
and even frustration of the democratic process at the general election.'"
(quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971))). And, because it
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is not indisputably clear that the circulator restrictions are invalid
but it is clear that the 10,000 signature requirement is valid
Governor Perry cannot satisfy the irreparable harm requirement.
D. The District Court's Findings Of Harm In Support OfIts Laches Findings Defeats Any Claim That It Is
Indisputably Clear That The Balance Of Equities And
The Public Interest Favor An Injunction On Appeal.
There is uncontraverted evidence incorporated into the district
court's findings on laches that Governor Perry's "lack of diligence has
significantly harmed the defendants." (Case 3:11-cv-00856-JAG Doc. 73
at 11). If a single dissent is sufficient to defeat the indisputably clear
standard, then this finding of significant harm likewise defeats it.
This is not altered by the sparse analysis of the balance of the
equities and the public interest found in the opinion of the district
court. (Id. at 20-21). The statement that "[a]n injunction enjoining the
Commonwealth from enforcing a regulation that the Court has
determined is likely to be found unconstitutional cannot qualify as a
harm, (Id. at 21)," is not legally correct in the face of unexcused delay
and threatened disruption. Westermann v. Nelson, 409 U.S. 1236, 1236-
37 (1972) (Douglas, J., in chambers) (denying injunction "not because
the cause lacks merit but because orderly election processes would
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likely be disrupted by so late an action."). Nor does the district court's
statement truly reflect context. An injunction that set at naught the
valid 10,000 signature requirement would be an obvious harm.
Furthermore, the statement that the "'right to vote freely for the
candidate of one's choice is of the essence of a democratic society'" (Case
3:11-cv-00856-JAG Doc. 73 at 21), has no contextual relationship with
the valid 10,000 signature requirement. Once again, we must view the
district court's Winter factor analysis as hypothetical and advisory.
Indeed, the district court concludes that analysis with this statement:
"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." (Id. at 22). Taken
in context, it is clear that both the balance of the equities and the public
interest favor defendants and not Governor Perry.
CONCLUSION
All relevant and material considerations support denial of
Governor Perry's motion. Accordingly, the Court should deny the
motion for the reasons stated above.
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Respectfully submitted,
CHARLES JUDD, KIMBERLY
BOWERS and DON PALMER, in their
official capacities
/s/
E. Duncan Getchell, Jr.
Solicitor General of Virginia
(VSB No. 14156)
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240Telephone(804) 371-0200Facsimile
Counsel for Defendants Judd,
Bowers and Palmer
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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of January, 2012, I
electronically filed the foregoing upon the United States Court of
Appeals for the Fourth Circuit via the Courts CM/ECF system, which
will send notice of such filing to the following, who are registered
CM/ECF users:
Hugh M. Fain, III
M. F. Connell Mullins, Jr.
Edward Everett Bagnell, Jr.
Spotts Fain P.C.
411 East Franklin Street
Suite 600
Richmond, Virginia 23219
Phone: (804) 697-2040
Fax: (804) 697-2140
[email protected] for The Honorable Rick Perry
Charles Michael Sims
LeClairRyan, A Professional Corporation
P.O. Box 2499
Richmond, VA 23218-2499
Tel: (804) 783-2003
Counsel for Pat Mullins, in his official capacity as Chairman of theRepublican Party of Virginia
Lee Elton Goodman
LeClairRyan, P.C.
1101 Connecticut Avenue, NW
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20
Suite 600
Washington, D.C. 20036
Phone: (202) 659-4140
Counsel for Pat Mullins, in his official capacity as Chairman of theRepublican Party of Virginia
I further certify that some of the participants in the case are not
registered CM/ECF users. I will mail one copy of the foregoing
document by First-Class Mail, on the first non-holiday to the following
non-CM/ECF participants:
Joseph M. Nixon (pro hac vice)
James E. Trainor, III (pro hac vice pending)
Martin D. Beirne (pro hac vice pending)
Beirne, Maynard & Parsons, L.L.P.
1300 Post Oak Boulevard
Suite 2500
Houston, TX 77056
Phone: (713) 623-0887
Fax: (713) [email protected]
Counsel for The Honorable Rick Perry
Stefan C. Passantino
J. Randolph Evans
Benjamin P. Keane
McKenna Long & Aldridge, LLP1900 K St. NW
Washington, DC 20009
Tel: 202-496-7500
Fax: 202-496-7756
Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich
mailto:[email protected]:[email protected]:[email protected]:[email protected] -
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J. Christian Adams
Election Law Center, PLLC
300 N. Washington St., Suite 405Alexandria, VA 22314
Tel: 703-963-8611
Fax: 703-740-1773
Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich
Craig Engle
Arent Fox LLP
1050 Connecticut Avenue, NWWashington, DC 20036-5339
Tel: 202-857-6000
Fax: 202-857-6395
Counsel for Plaintiff-Intervenor The Honorable Jon Huntsman, Jr.
Cleta Mitchell
Foley & Lardner LLP
3000 K Street, N.W.
Suite 600Washington, DC 20007-5109
Tel: 202-672-5300
Fax: 202-672-5399
Counsel for Plaintiff-Intervenor Rick Santorum
/s/
E. Duncan Getchell, Jr.
Counsel for Respondents