Rick Perry v. Charles Judd

Filing 10

Emergency MOTION by Appellants Kimberly T. Bowers, Charles E. Judd and Donald Palmer in 12-1042, 12-1047 to suspend United States District Court Order entered January 10, 2012, in Case No. 3:11-cv-00856-JAG. Date and method of service: 01/10/2012 US mail, ecf [998762424] [12-1042, 12-1047] Earle Getchell

Record Nos. 12-1042 and 12-1047
_________________________________
United States Court of Appeals
For the Fourth Circuit
__________
THE HONORABLE RICK PERRY,
Plaintiff – Appellee-Respondent
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 – AppellantsMovants
________________
Appeal from the United States District Court
for the Eastern District of Virginia
Richmond Division

_________________
DEFENDANT-APPELLANTS' SUPPLEMENTAL EMERGENCY
MOTION TO SUSPEND AMENDED PRELIMINARY
INJUNCTION WHILE AN APPEAL IS PENDING
KENNETH T. CUCCINELLI, II
Attorney General of Virginia
E. DUNCAN GETCHELL, JR.
(VSB #14156)
Solicitor General of Virginia
[e-mail]
WESLEY G. RUSSELL, JR.
(VSB #38756)
Deputy Attorney General
JOSHUA N. LIEF (VSB #37094)
Senior Assistant Attorney General
Counsel for Don Palmer

OFFICE OF THE ATTORNEY
GENERAL
900 East Main Street
Richmond, Virginia 23219
Telephone: [phone]
Counsel for Charles Judd, Kimberly
Bowers and Don Palmer

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................. ii
FACTS AND NATURE OF THE CASE ................................................ 1
REASONS FOR GRANTING RELIEF ................................................. 2
A. Likelihood of Success ................................................................. 2
B. Finding That The Public Interest Would be Served By A
Preliminary Injunction Without Having Sufficient Evidence
On The Issue Before It Either By Affidavit Or Through
Testimony Was Error. .............................................................. 15
C. The Failure Of The District Court To Weigh The Equities
Was Error. ................................................................................ 16
CONCLUSION .................................................................................... 16
CERTIFICATE OF SERVICE ............................................................. 18
APPENDIX A: COURT'S ORDER DATED JANUARY 10, 2012

i

TABLE OF AUTHORITIES
Page
Cases
Am. Party of Tex. v. White, 415 U.S. 767 (1974) ................................. 14
Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................................... 14
Bogaert v. Land, 572 F.Supp. 883 (W.D. Mich. 2008) .......................... 4
Buckley v. American Constitutional Law Foundation,
525 U.S. 182 (1999) .............................................. 4, 6, 8, 9, 12, 13, 14
Calvary Christian Center v. City of Fredericksburg,
2011 U.S. Dis. LEXIS 77489 (E.D. Va. 2011) .................................... 2
Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir. 2002) ................ 4
Cornwall v. Sachs, 99 F.Supp. 2d 695 (E.D. Va. 2000) ........................ 3
Frami v. Ponto, 255 F. Supp. 2d 962 ..................................................... 4
Frami v. Ponto, 255 F.Supp.2d 962 (W.D. Wis. 2003) .......................... 4
GTE Corp. v. Williams, 731 F.2d 676 (10th Cir. 1984) ........................ 3
Hart v. Secretary of State, 715 A.2d 165 (Me. 1998) ............................. 6
In re Microsoft Corp. Antitrust Litig., 333 F.3d 517 (4th Cir. 2003) .... 2
Initiative & Referendum Inst. v. Secretary of State,
1999 U.S. Dist. LEXIS 22071 (D. Maine) .......................................... 6
Initiative & Referendum Inst. v. Jaeger,
241 F.3d 614 (8th Cir. 2001) ........................................................ 6, 15
Kean v. Clark, 56 F.Supp.2d 719 (S.D. Miss. 1999) .............................. 6
Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000) ........................... 4, 12
Lerman v. Bd. of Elections in the City of New York,
232 F.3d 135 (2d Cir. 2000) ................................................................ 4
ii

Libertarian Party of Va. v. Davis, 766 F.2d 865 (4th Cir. 1985) ...... 5, 6
Lux v. Rodrigues, 131 S. Ct. 5 (2010) ................................................ 3, 5
Lux v. Rodrigues, 736 F.Supp.2d 1042 (E.D. Va. 2010).................... 4, 5
Mazurek v. Armstrong, 520 U.S. 968 (1997) ....................................... 16
Meyer v. Grant, 486 U.S. 414 (1988) ................................................. 8, 9
Morrill v. Weaver, 224 F.Supp.2d 882 (E.D. Penn. 2002) ..................... 4
Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008)............... 4, 10, 11, 12
Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) ................. 4, 12, 13, 15
Real Truth About Obama, Inc. v. FEC,
575 F.3d 342 (4th Cir. 2009) ............................................................ 16
Tiffany v. Forbes Custom Boats, Inc., No. 91-3001,
1992 U.S. App. LEXIS 6268 (4th Cir. Apr. 6, 1992) (per curiam) ..... 3
United States v. Albertini, 472 U.S. 675, 689 (1985)) ......................... 14
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) ................... 14
Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1980).................................. 3
Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) ... 4
Rules
Va. Code Ann. § 24.2-506 ...................................................................... 5

iii

Come now the defendant members of the State Board of Elections
Charles Judd, Kimberly Bowers and Don Palmer, in their official
capacities, pursuant to Rule 8(a)(2), and move the United States Court
of Appeals for the Fourth Circuit or a single judge thereof to suspend
the amended injunction entered against them on January 10, 2012 in
the United States District Court for the Eastern District of Virginia.
FACTS AND NATURE OF THE CASE
After defendants filed their Emergency Motion in No. 12-1042 on
January 10, 2012, the district court issued an amended or supplemental
order reaffirming its January 9 preliminary injunction.
substantive additions are these:

The

(1) even though plaintiff and

intervenors are seeking a mandatory preliminary injunction that would
grant them on a preliminary basis all of the relief they could obtain
after full trial on the merits, the district court found a substantial
likelihood of success on the merits, and (2) without taking evidence by
affidavit or live witness, the district court — contrary to the facts set
forth in the Declaration filed in No. 12-1042 — found that "[t]he public
interest . . . weighs heavily in favor of plaintiffs." Finally, the district

1

court declined "at this time, [to] make a preliminary judgment about
the balance of the equities."
REASONS FOR GRANTING RELIEF
A.

Likelihood of Success

First, the district court employed an incorrect legal standard in
finding a substantial likelihood of success on the merits. Although cast
as a temporary, prohibitory injunction, plaintiff's and intervenors'
motions are, in substance, attempts to resolve the merits of the
underlying suits and achieve preliminarily all of the relief they would
be entitled to if they were to prevail at trial, i.e., be placed on the ballot.
Within the realm of temporary injunctions, such motions are
particularly disfavored and require a heightened showing of likelihood
of success on the merits. See, e.g., Calvary Christian Ctr. v. City of
Fredericksburg, No. 3:11-cv-342, 2011 U.S. Dist. LEXIS 77489, at *3-4
(E.D. Va. July 18, 2011) ("The Fourth Circuit has viewed mandatory
relief with caution, explaining that it 'should be granted only in those
circumstances when the exigencies of the situation demand such
relief.'") (quoting In re Microsoft Corp. Antitrust Litig., 333 F.3d 517,
526 (4th Cir. 2003) (citing Wetzel v. Edwards, 635 F.2d 283, 286 (4th

2

Cir. 1980)))); Cornwell v. Sachs, 99 F. Supp. 2d 695, 704 (E.D. Va. 2000)
("a preliminary injunction that affords the movant substantially all the
relief he may recover at the conclusion of a full trial on the merits" is
"disfavored." (quoting Tiffany v. Forbes Custom Boats, Inc., No. 91-3001,
1992 U.S. App. LEXIS 6268, at *21 (4th Cir. Apr. 6, 1992) (per
curiam))). See also, Lux v. Rodrigues, 131 S. Ct. 5, 6 (2010) (Roberts,
C.J., Circuit Justice) (applying an "indisputably clear" standard to an
emergency motion for injunction intended to place plaintiff on ballot);
GTE Corp. v. Williams, 731 F.2d 676, 678-79 (10th Cir. 1984) ("The
burden on the party seeking a preliminary injunction is especially
heavy when the relief sought would in effect grant plaintiff a
substantial part of the relief it would obtain after a trial on the
merits.").

Because they seek what amounts to a preliminary,

mandatory injunction that seeks to alter rather than maintain the
status quo, it is insufficient for plaintiff and intervenors to merely
demonstrate a likelihood of success on the merits.

To satisfy the

heightened standard, they must demonstrate that they are virtually
certain to prevail. This they simply cannot do.

3

There is clear and recent authority from the Fourth Circuit and
the Chief Justice sitting as Circuit Justice that plaintiff and intervenors
cannot satisfy the elevated standard of demonstrating likelihood of
success on the merits applicable to a preliminary, mandatory
injunction. Here, plaintiff and intervenors claim that the Virginia voter
eligibility requirement placed by Va. Code Ann. § 24.2-545B on petition
circulators is an unconstitutional burden on political speech, citing
Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999); Yes on
Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008); Nader v.
Blackwell, 545 F.3d 459 (6th Cir. 2008); Nader v. Brewer, 531 F.3d 1028
(9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir.
2002); Lerman v. Bd. of Elections in the City of New York, 232 F.3d 135
(2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000); Bogaert
v. Land, 572 F. Supp. 2d 883 (W.D. Mich. 2008); Frami v. Ponto, 255 F.
Supp. 2d 962 (W.D. Wis. 2003); Morrill v. Weaver, 224 F. Supp. 2d 882
(E.D. Penn. 2002). (Case 3:11-cv-00856 Doc. 1 at 5-6, ¶¶ 25-28; Doc. 28
at 7-8, ¶¶ 37-38). The plaintiff in Lux v. Rodrigues, 736 F. Supp. 2d
1042 (E.D. Va. 2010), made substantially the same argument based
upon substantially the same case authority in challenging the

4

requirement of Va. Code Ann. § 24.2-506 that congressional petition
circulator/witnesses be voter eligible min the congressional district at
issue. Lux lost in the district court because the Fourth Circuit had
upheld similar requirements in Libertarian Party of Va. v. Davis, 766
F.2d 865 (4th Cir. 1985), on the ground that the requirement ensures a
modicum of activist support in the relevant jurisdiction. Lux, 736 F.
Supp. 2d at 1049-50.

Lux then filed an Emergency Motion for

Preliminary Injunction in the Fourth Circuit. (Case: 10-1997, Doc. 8).
When that motion was denied (Case: 10-1997, Doc. 22), Lux sought
relief from Chief Justice Roberts acting as Circuit Justice for the Fourth
Circuit.
Chief Justice Roberts denied the motion making three points of
significance for the present case.

First, he found that an elevated

"indisputably clear" legal standard applied to injunctions from a circuit
justice. Lux, 131 S. Ct. at 6. This is not unlike the elevated standard
for preliminary, mandatory injunctions which seek to obtain all the
relief preliminarily which could be had after trial. Then, he noted that
"we were careful in American Constitutional Law Foundation to
differentiate between registration requirements, which were before the

5

Court, and residency requirements, which were not." Id. at 7. In fact,
the Supreme Court has never ruled on residency requirements. Finally,
the Chief Justice recognized that the lower court cases upon which both
Lux and plaintiff here have relied are part of a circuit split. Id. That
circuit split persists. See Initiative & Referendum Inst. v. Jaeger, 241
F.3d

614,

615-17

(8th

Cir.

2001)

(upholding

state

residency

requirement) (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)); see also Hart v. Secretary of State, 715 A.2d 165, 168 (Me.
1998) (upholding state residency requirements).

When the Fourth

Circuit decided Lux on the merits, it held that Davis had been
sufficiently undercut that its rationale of guaranteeing a modicum of
activist support was no longer controlling. Lux v. Judd, 651 F.3d 396,
398, 402, 404 (4th Cir. 2011).

Even so, the Fourth Circuit did not find

that Lux's challenge was so clear as to entitle him to relief against the
in-district witness requirement on appeal. Indeed, it said the opposite:
Our recognition that Davis's abbreviated residencyrequirement analysis has been superseded should not be
confused for a determination that the provision challenged
here offends Lux's constitutional rights. Neither Meyer nor
6

Buckley addressed the particular witness residency
requirement at issue in this case. Moreover, we do not read
either decision as foreclosing the possibility that something
more than a threshold signature requirement may, in some
circumstances, be constitutionally permissible as a means of
ensuring popular support or achieving another state
interest.
Id. at 404. The Fourth Circuit further noted that on remand "[b]oth
parties are free to advance additional arguments in light of our
holding." Id.
Sufficient

reasons

for

the

state

residency/voter

eligibility

requirement at issue here are not hard to find because they have been
posited by the Supreme Court itself. In American Constitutional Law
Foundation, the Supreme Court struck down a voter registration
requirement because an unchallenged state residency requirement
more narrowly served the same putative state interest, saying "[i]n
sum, assuming that a residence requirement would be upheld as a
needful integrity policing measure -- a question we, like the Tenth
Circuit, have no occasion to decide because the parties have not placed
the matter of residence at issue -- the added registration requirement is
not warranted."

525 U.S. at 197 (internal citation omitted).

The

Supreme Court also approved of a voter eligibility requirement as a

7

more narrow substitute for a voter registration requirement, specifically
noting that a voter eligibility requirement could be used as a proxy to
weed out felons, minors and illegal aliens. Id. at 195 n.16 ("Persons
eligible to vote, we note, would not include 'convicted drug felons who
have been denied the franchise as part of their punishment, . . . . Even
more imaginary is the dissent's suggestion that if the merely voter
eligible are included among petition circulators, children and citizens of
foreign lands will not be far behind.").
In light of American Constitutional Law Foundation, and the
treatment of the Lux case in the Fourth Circuit and by the Chief
Justice, it is simply not possible for plaintiff or the intervenors to
demonstrate the near certainty of success required of them. Indeed,
they cannot even satisfy the ordinary Winter standard. Not only has
the

Supreme

Court

intimated

that

residency/voter

eligibility

requirements are valid, but American Constitutional Law Foundation
and its predecessor, Meyer v. Grant, 486 U.S. 414 (1988), are ballot
initiative cases. And in such cases "[t]he circulation of an initiative
petition of necessity involves both the expression of a desire for political

8

change and a discussion of the merits of the proposed change." Meyer,
486 U.S. at 421. This distinction matters.
Initiative-petition circulators, the Tenth Circuit
recognized, resemble handbill distributors, in that both seek
to promote public support for a particular issue or position.
Initiative-petition circulators also resemble candidatepetition signature gatherers, however, for both seek ballot
access.
American Constitutional Law Foundation, 525 U.S. at 190-91 (internal
citation omitted). With respect to the latter aspects, "States allowing
ballot initiatives have considerable leeway to protect the integrity and
reliability of the initiative process, as they have with respect to election
processes generally."

Id. at 191.

And the Court assumed, without

deciding, that the need to have circulators within the state subpoena
power falls within that broad leeway. Id. at 196-97. Even with respect
to the handbill-type aspects of ballot initiative petitioning, the Supreme
Court has said that "'no litmus-paper test' will separate valid ballotaccess provisions from invalid interactive speech restrictions; we have
come upon 'no substitute for the hard judgments that must be made.'"
Id. at 192 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
Because the Supreme Court has never invalidated a statewide
residency/voter eligibility requirement and has never invalidated a
9

circulator requirement outside of initiative cases, the lower court cases
upon which plaintiff and intervenors rely which relate to initiative or
less than state-wide residency/voter eligibility requirements are readily
distinguishable. See Yes on Term Limits, Inc., 550 F.3d 1023 (ballot
initiative); Chandler, 292 F.3d 1236 (city-residency requirement);
Lerman, 232 F.3d 135 (district-residency requirement); Bogaert, 572 F.
Supp. 2d 883 (district-residency requirement); Frami v. Ponto, 255 F.
Supp. 2d 962 (district-residency requirement); Morrill, 224 F. Supp. 2d
882 (district-residency requirement). Of the cases cited by plaintiff and
intervenors in the district court, three remain to be considered.
Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), is procedurally
complex in two separate ways. First, prior to the 2004 election, Ralph
Nader was removed from the Ohio ballot after 2,700 signatures were
invalidated.
In October 2004, a federal district court denied Nader's
request for injunctive relief, the state courts denied his
request for mandamus relief, and [the Sixth Circuit] denied
his emergency appeal. In November 2005, [the Sixth
Circuit] dismissed his regular appeal as moot.

10

Blackwell, 545 F.3d at 462.

Then, in 2006, Nader sued Blackwell,

Ohio's Secretary of State during the 2004 election, under § 1983 for
nominal damages. Id. at 462, 469.
The district court never reached the constitutional merits but
dismissed on standing, qualified immunity and absolute immunity. Id.
at 462. Despite affirming the district court on qualified immunity, the
Sixth Circuit purported to reach the constitutional merits vel non and to
declare the candidate ballot access voter registration and residency
requirements unconstitutional. Id. at 462, 474, 477-78.
Locating the opinion of the Court is also complex. Judge Moore
wrote a one-paragraph opinion in which she said: "I also concur in
Judge Clay's opinion, making his opinion the opinion of the court.
Judge Clay joins my opinion, making this the opinion of the court." Id.
at 478.

Judge Clay wrote a four-paragraph opinion in which he

disagreed with Chief Judge Bogg's statement "that [t]his suit is a civil
action for money damages against Blackwell in his personal capacity. It
is not another chance for Nader to litigate the constitutionality of §
3503.6, the constitutionality of which is being challenged directly in
other cases." Id. Judge Clay also limited his adoption of Judge Moore's

11

opinion: "I join Chief Judge Bogg's opinion only insofar as it does not
conflict with the views expressed in this concurring opinion and Judge
Moore's concurring opinion."

Id. at 479.

From Chief Judge Bogg's

opinion - which, in this respect, does not contradict the concurring
opinions and is the opinion of the Court - we learn that the
registration/residency requirement was at the county and precinct level.
Id. at 467 n.2. Thus, Blackwell turns out to be another distinguishable
district residency case, in which there was no occasion for the court to
consider the justifications for statewide residency and voter eligibility
discussed in American Constitutional Law Foundation.
Krislov v. Rednour, 226 F.3d 851, 855 (7th Cir. 2000), involves
both district and statewide registration requirements. Because it is a
registration case there was no occasion to consider the justifications for
statewide residency and voter eligibility requirements discussed by the
Supreme Court and they were not raised by defendants. Id. at 863-66.
Plaintiff and intervenors have exactly one case from the Ninth
Circuit on point and in their favor. In Nader v. Brewer, 531 F.3d 1028
(9th Cir. 2008), a statewide residency/voter eligibility requirement was
found unconstitutional because the state interest in having circulators

12

subject to subpoena could have been accomplished through the more
narrow means of requiring out-of-state circulators to consent to state
jurisdiction. Id. at 1037-38. This illustrates why the Supreme Court
distinguished between initiatives and ordinary ballot access in
American Constitutional Law Foundation:

if every ballot integrity

provision is subject to strict scrutiny it will always be possible to think
of some alternative requirement that is arguably more narrow. This is
not what the Supreme Court intends.
It has never been suggested that the [Supreme Court's case
law] automatically invalidates every substantial restriction
on the right to vote or to associate. Nor could this be the case
under our Constitution where the States are given the initial
task of determining the qualifications of voters who will elect
members of Congress. Art. I, § 2, cl. 1. Also Art. I, § 4, cl. 1,
authorizes the States to prescribe "the Times, Places and
Manner of holding Elections for Senators and
Representatives." Moreover, as a practical matter, there
must be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos,
is to accompany the democratic processes. In any event, the
States have evolved comprehensive, and in many respects
complex, election codes regulating in most substantial ways,
with respect to both federal and state elections, the time,
place, and manner of holding primary and general elections,
the registration and qualifications of voters, and the
selection and qualification of candidates. It is very unlikely
that all or even a large portion of the state election laws
would fail to pass muster . . . .

13

Storer, 415 U.S. at 729-30.
interests

are

generally

"[T]he State's important regulatory
sufficient

to

justify

reasonable,

nondiscriminatory restrictions," Anderson v. Celebrezze, 460 U.S. 780,
788 (1983), including on the process by which candidates are placed on
the ballot. See Am. Party of Tex., 415 U.S. at 783-84.
A State is not required to use the least restrictive means "'so long
as the . . . regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.'" Ward v. Rock
Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)). Brewer thus is seen to stand on a
doubtful foundation inasmuch as direct subpoena authority is more
effective than an undertaking to be subject to out-of-state jurisdiction.
And, of course, Brewer does not even discuss the important interests
that a voter eligibility requirement advances in avoiding the use of
felons, children and illegal aliens as petition circulators.

American

Constitutional Law Foundation, 525 U.S. at 195 n.16.
Brewer cannot satisfy plaintiff's burden of demonstrating the
requisite likelihood of success on the merits. In the first place, it is
directly contradicted by a decision from the Eighth Circuit as Brewer

14

itself recognizes. Brewer, 531 F.3d at 1036-37 (citing Jaeger, 241 F.3d
at 617).

Even more decisively, when Brewer was presented to the

Fourth Circuit and to the Chief Justice in Lux, it was found to be
insufficient to entitle Lux to relief. The constitutionality of statewide
residency/voter eligibility requirements has been assumed by the
Supreme Court, and neither plaintiff nor intervenors can demonstrate a
near certainty of success on the merits because the question, from their
point of view, is at best unsettled.
B.

Finding That The Public Interest Would be Served By
A Preliminary Injunction Without Having Sufficient
Evidence On The Issue Before It Either By Affidavit
Or Through Testimony Was Error.

The district court found that the public interest was served by
preserving the ability of citizens to possibly vote for plaintiff or
intervenors. The district court also found that it was mathematically
possible to enter an injunction without violating state or federal law or
the consent decree.

But defendants had filed a witness disclosure

indicating an intent to prove that violations of law and election
disruption would be the likely result of a preliminary injunction. (Case
3:11-cv-00856 Doc. 22). In granting a preliminary injunction a court
may not assume facts. Instead there must be "substantial proof" of
15

record. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Here, there is
none to support the finding of the district court, which took no evidence.
C.

The Failure Of The District Court To Weigh The
Equities Was Error.

A preliminary injunction must be supported by all four Winter
factors. Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th
Cir. 2009). Standing alone, the fact that the district court declined to
weigh the equities "at this time" is sufficient to render the injunction
improper.
CONCLUSION
Wherefore, this Court should suspend the amended judgment
enacted by the district court.
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
[phone] – Telephone
[phone] – Facsimile
16

[e-mail]
Counsel for Defendants Judd,
Bowers and Palmer

17

CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of January, 2012, I
electronically filed the foregoing upon the United States Court of
Appeals for the Fourth Circuit via the Court’s CM/ECF system, which
will send notice of such filing to the following, who are registered
CM/ECF users:
M. F. Connell Mullins, Jr., Esquire
Hugh M. Fain, III, Esquire
Edward Everett Bagnell, Jr., Esquire
Spotts Fain P.C.
411 East Franklin Street
Suite 600
Richmond, Virginia 23219
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for The Honorable Rick Perry
Joseph M. Nixon, Esquire (pro hac vice)
James E. Trainor, III, Esquire (pro hac vice)
Martin D. Beirne, Esquire (pro hac vice)
Beirne, Maynard & Parsons, L.L.P.
1300 Post Oak Boulevard
Suite 2500
Houston, TX 77056
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
18

[e-mail]
Counsel for The Honorable Rick Perry
Charles Michael Sims
LeClairRyan, A Professional Corporation
P.O. Box 2499
Richmond, VA 23218-2499
Tel: [phone]
[e-mail]
Counsel for Pat Mullins, in his official capacity as Chairman of the
Republican Party of Virginia
J. Christian Adams, Esquire
Election Law Center, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich
Stefan C. Passantino, Esquire (pro hac vice filed)
J. Randolph Evans, Esquire (pro hac vice to be filed)
Benjamin P. Keane, Esquire (pro hac vice filed)
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich
Craig Engle, Esquire (pro hac vice to be filed)
Arent Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor The Honorable Jon Huntsman, Jr.
19

Cleta Mitchell, Esquire (pro hac vice filed)
Foley & Lardner LLP
3000 K Street, N.W.
Suite 600
Washington, DC 20007-5109
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor Rick Santorum
I further certify that some of the participants in the case are not
registered CM/ECF users.

I have mailed one copy of the foregoing

document by First-Class Mail to the following non-CM/ECF participant:
Lee Elton Goodman, Esquire
LeClairRyan, P.C.
1101 Connecticut Avenue, NW
Suite 600
Washington, D.C. 20036
Phone: [phone]
[e-mail]
Counsel for Pat Mullins, in his official
capacity as Chairman of the Republican Party of Virginia
/s/
E. Duncan Getchell, Jr.
Counsel for Appellants

20