Libertarian Party of Virginia et al v. Virginia State Board of Elections

Filing 15

MEMORANDUM OPINION: For the reasons stated in open court and in this Memorandum Opinion, defendant's Motion to Dismiss will be granted by an Order to be issued with this Memorandum Opinion.Signed by District Judge Leonie M. Brinkema on 09/16/10. (yguy)

-TCB Libertarian Party of Virginia et al v. Virginia State Board of Elections

Doc. 15

IN

THE

UNITED

STATES

DISTRICT
OF

COURT

FOR

THE

EASTERN

DISTRICT

VIRGINIA

Alexandria
LIBERTARIAN PARTY OF VIRGINIA, et

Division
)

al.,

)

Plaintiffs,
v.

)
STATE BOARD OF ELECTIONS

l:10-CV-615

(LMB/TCB)

VIRGINIA

Defendant.

MEMORANDUM

OPINION

I.

Background

This §

action challenges which requires

the

constitutionality of Va. who circulate

Code

24.2-506,

individuals

ballot

petitions

("circulators")

to be qualified to vote they circulate

in the specific and

congressional district where

those petitions

witness voters'

signatures.

Plaintiffs

include the Libertarian
for the U.S. House

Party of Virginia; of Representatives in the November 2,
Mosley's

its prospective

candidate

from Virginia's Eighth Congressional District 2010 general election
is a resident of

(Matthew Mosley);
the

one of

supporters who

Eighth Congressional

District

(Catherine Barrett)j

one supporter who is a resident of (William
the District
on June 3,

Virginia but not of
Redpath);
of

the Eighth Congressional District
of
suit

and another supporter who is a resident
(Robert Benedict). U.S.C. § 1983, Plaintiffs that filed the

Columbia

2010 under 42

alleging

in-district

residency requirement

for circulators violates

their First and

Dockets.Justia.com

Fourteenth Amendment

rights

by

preventing

their

candidate

of

choice

from being placed on
law, to

the ballot.
be listed on the ballot for the

Under Virginia

November U.S. 8, for

2,

2010

general

election, must

prospective have filed, 1,000 on

candidates by

for the

House

of Representatives

7:00 pm on June

2010, that

a petition signed by at office. Moreover, the

least

"qualified voters" the petition must qualified

signatures are for

have been witnessed by circulators who voters or qualified Specifically, Va. to register § to vote

themselves that that:

office.

Code

24.2-506

provides

The name of any candidate for any office, other than a party nominee, shall not be printed upon any official ballots provided for the election unless he shall file along with his declaration of candidacy a petition therefor, on a form prescribed by the State Board,

below1 after January 1 of the year in which the election is held and listing the residence address of
each such voter. Each signature on have been witnessed by a person who qualified voter, whose affidavit the petition shall is himself a to vote, for of

signed by the number of qualified voters

specified

or qualified to register

the office for which he is
to that
the petition.

circulating

the petition and
on each page

effect appears

Va.

Code

§

24.2-101 defines

"qualified voter"

for the purposes of

Virginia's election statutes as
pursuant to

"a person who is entitled to vote
(i) 18 years

the Constitution of Virginia and who is

of age on or before the day of

the election

.

.

.

(ii)

a resident

of signatures of qualified voters for candidates for the U.S. House of Representatives shall be 1,000 signatures. Va. Code
§ 24.2-506.

1 The statute subsequently specifies that the minimum number

of

the

Commonwealth and of and (iii) registered

the precinct to vote."

in which

he

offers

to

vote,

Mosley is a prospective
Representatives Mosley, however, in Virginia's resides in

candidate

for the U.S.

House of
District.

Eighth Congressional rather than

the Tenth

the Eighth

District.

Plaintiffs'

June 3,

2010 complaint alleges that to meet the 1,000-

plaintiff Mosley was unlikely to be able
signature threshold requirement 2010 ballot by the June 8, 2010

for being placed on the November filing deadline without assistance

from plaintiffs Benedict and Redpath,
who reside outside

along with other supporters
District and yet were Those outCode
in

the Eighth Congressional

interested in circulating Mosley's of-district residents,
§ 24.2-506

candidate petition.

however,

are barred by the text of Va.
for candidates

from serving as

petition circulators

the Eighth District,

including Mosley.

Plaintiffs'
from Va. Code §

complaint seeks declaratory and injunctive relief
24.2-506's in-district residency requirement their for

circulators,

which plaintiffs

assert unduly burdens

rights

to cast their votes effectively, ideas,

to speak and associate for

the advancement of political
of law. Specifically,

and to have equal protection

plaintiffs

request a declaration that

Virginia's prohibition against the circulation of

candidate

petitions by out-of-district circulators is unconstitutional and in violation of 42 U.S.C. § 1983, preliminary and permanent

3

injunctions

against enforcement of

the prohibition against

circulation of candidate petitions by out-of-district circulators,
an order prohibiting the Virginia State Board of Elections from

refusing to list Mosley on the ballot for the November 2,
general election as a candidate for the U.S. House of

2010

Representatives
attorneys other fees as

from the Eighth Congressional
and costs pursuant may be
6, 2010,

District,
§ 1988,

reasonable
and such

to

42

U.S.C.

relief

just
the

and proper.
Virginia State Board of Elections

On August

filed a Motion to Dismiss.

On August 23,

2010,

plaintiffs

filed a

Motion for Summary Judgment and in Opposition

to Defendant's

Motion to Dismiss.
Response

Defendant

filed its Reply to
27,

[Plaintiff's]
Defendant also

to Motion to Dismiss on August

2010.

filed its opposition to plaintiffs'
September 3, this Court at 2010. this

Motion for Summary Judgment on
is before

Only defendant's Motion to Dismiss time.

II.

Standard

of

Review

Traditionally, tests

"[a]

motion to dismiss under Rule 12(b)(6) ... it does not resolve
or the v.
P.

the sufficiency of a complaint;
surrounding the facts,

contests

the merits of a claim,

applicability of defenses."
980 F.2d 943, 952 (4th Cir.

Republican Party of N.C.
1992). Under Fed. R. Civ.

Martin.

12(b)(6),

a complaint should not be dismissed "unless it appears

certain that
support
Sydnor,

[the plaintiff]

can prove no set of

facts

that would

his
184

claim and would entitle him to relief."
F.3d 356, 361 (4th Cir. 1999). The Court

Smith v.
must accept

all

of

the

complaint's

well-pleaded allegations

as

true and view

them in a light most favorable to the plaintiff.
F.3d at
not to

Smith,
only to

1184
facts,

361.
legal

However,

that
or

requirement applies
to unreasonable 129 S. Ct. 1937

conclusions v.

inferences (2009).

from

the

facts.

Ashcroft

Iqbal,

Moreover,

the

Supreme Court's

recent case

law has amplified

the Rule 12(b)(6)

standard,
enough on the

clarifying that
to raise a right that

w[f]actual
of relief above of the the

allegations must be speculative level,

assumption

all

allegations

in the complaint are 544, court 555 (2007).

true."

Bell Atl.

Corp.

v.

Twombly,

550 U.S. the the

" [I]f

the well-pled facts

do not permit

to infer more than the mere possibility of misconduct, allegedbut it has not 'show[n]'that

complaint has

the pleader

is entitled to relief.

Iqbal,

129 S.

Ct.

at 1950.

Thus,

a

plaintiff's complaint must provide more than mere
conclusions stating that the plaintiff is

labels and

entitled to relief.

Id.

Rather,

a complaint achieves

factual plausibility only when

it contains sufficient allegations supporting the reasonable inference that the facts as alleged give rise
claim. As Id. at 1949; see also Twombly, 550

to an actionable
at 555. Giacomelli.

U.S.

the Fourth Circuit has

noted in Francis v.

this
court

analysis

is

context
its

specific

and requires
and

the

"reviewing
sense."

to draw on

judicial

experience

common

Giacomelli, stressed

588

F.3d 186,

193

(4th Cir.

2009).

The

Court

also

in Giacomelli

that

"'naked assertions'

of wrongdoing

necessitate some
cross 'the line

'factual enhancement'

within the complaint to

between possibility and plausibility of

entitlement to relief.'"

Id.

(quoting Twombly,

550 U.S.

at

557).

III. In support of its motion

Discussion to dismiss, defendant raises

multiple

arguments,

including

several

arguments

dealing with the merits

preliminary matters

and a primary argument

addressing

of plaintiffs'
that facts Supp. this case

claims.
is moot to

As a

threshold matter,
plaintiffs have

defendant

contends

and that

failed to allege Mem. of Law in

sufficient of Mot.

establish at 7.

standing. Defendant

Def.'s

to Dismiss

also argues

that

plaintiffs' Amendment. plaintiffs
granted,

42 U.S.C. Id. at 6.

§

1983 On

claim is barred by the Eleventh defendant argues that can be

the merits, state

have failed to
of

a claim upon which relief

in light

Supreme

Court

and Fourth Circuit precedent

upholding similar residency requirements
Id. at 8. For the reasons
be

in state

election laws.
motion to

explained below,
granted.

defendant's

dismiss

this

action will

A.

Preliminary
I.

Matters

Mootness

The Virginia State Board of action is moot because the required 1,000 the June

Elections 8, 2010

argues

that

this

deadline

for obtaining and Mosley has
2, 2010

petition
access

signatures
to the

has passed,
for the

already been denied

ballot

November

general

election on that basis. Court lacks

Defendant

therefore this

contends

that this

jurisdiction

to decide 2, 2010

case.

However,
yet occurred,

given
this

that

the November
remains

election has not
and this Court could

controversy

live,

still

remedy any alleged harm to requested relief
is

the plaintiffs by granting form of a judgment
42

plaintiffs'
Code §

in the

that Va.

24.2-506

unconstitutional

and violates

U.S.C.

§

1983,

coupled with an order prohibiting Elections from refusing to

the Virginia name

State as a

Board of

list Mosley's

candidate on the ballot.2 if

Moreover,

as

plaintiffs

contend,

even

the Court were to decide
election,

this case after the November 2010
still it is a meet an exception to the that S. is Pac.

general

the action could doctrine because

general mootness "capable Terminal of Co.

controversy See,

repetition yet evading v. ICC, 219 U.S. 498

review." (1911).

e.g.,

2 Defendant argued,
on this motion, that

for the first

time at the oral hearing
be proper in light of nowhere in

such relief would not

the fact that absentee balloting

for the November 2010 election

has already begun. That argument, however, appears the briefing on defendant's motion to dismiss.
7

In ballot

this for

case,

Mosley has 2,

already been election.

denied

access this

to

the

the November

2010

However,

issue

will

continue of

to

arise

in future

elections

as prospective

candidates
alternative ballots.

the Libertarian Party of Virginia and other
parties Court long in Virginia articulated over, and no seek access to future Brown, can

political the

As

Supreme is

in Storer v. effective

even when an

"election

relief

be provided to
since the

the

candidates

or voters,
and

[the]
their

case

is not moot,
on

issues

properly

presented,

effects

independent

candidacies,

will

persist as 415 U.S.

the

. 737

.

. n.8

statutes (1974)

are

applied in future elections."

724,

(upholding a California

law that prohibited an individual an independent

from

running for an elected office as
six months of that individual

candidate within
a will deny

having been a member of Accordingly, the this Court

registered political party). defendant's motion to dismiss

instant action as moot.

ii.

Standing

Defendant

further argues to

that

plaintiffs Code §

have

not

adequately at least

established standing

challenge Va.

24.2-506,

on the facts as pled in their complaint.
a legally protected particularized and hypothetical," interest (b) actual has which is (a)

Without
concrete not to

"an invasion of
and

or imminent, no standing

conjectural or sue in a federal

a plaintiff

court."

Lu-jan v.

Defenders

of

Wildlife,

504

U.S.

555,

560

(1992)

(internal citations omitted).
be a causal connection between

Moreover,
the

under Lujan,
the

there must

injury and

conduct

complained of, speculative, decision."
Yet as

and it must be the

"likely,

as opposed

to merely favorable

that Id.
the

injury will

be redressed by a

(internal
Virginia

citations omitted).
State Board of Elections notes, nowhere

in the that

complaint for'

"do the plaintiffs

allege

facts

establishing in Virginia

'but

the

restriction on circulators

found

Code

§

24.2-506,

plaintiff Mosley would have obtained the needed
8, For 2010." Def.'s Mem. the of Law in Supp. never of Mot. the

petitions by June to Dismiss number of at 7.

example,

complaint

alleges

signatures

that Mosley had already

received or was

likely to receive,
signatures that

nor does

it specify the number of

those
in-

were or were

likely to be witnessed by

district as

opposed to out-of-district circulators. is that, as of

Instead,

the

only allegation in the complaint

the date of

filing,

Mosley was
by June

"unlikely"
8 without

to obtain the needed 1,000 petition
the assistance of his out-of-

signatures

district

co-plaintiffs.

Pi. ' s

Compl.

If

19.

That bare

allegation

falls

short of

the requirement

that the plaintiff plead plausible

facts establishing sufficient harm and causation to support
standing to sue.

Both parties

to

this

case have

agreed,

based upon their

filings

with respect

to plaintiffs'
obtain

Motion for Summary Judgment,
1,000 signatures with the

that Mosley ultimately did

over

help of
not

out-of-district petition circulators.3
leave to amend their is complaint not to

Plaintiffs
that the

have

sought

include before

information,

and it

therefore

properly

court

on

this motion

to dismiss.

Purely on

the

facts

as pled in the

complaint,
sufficient

this
facts

Court

finds that plaintiffs have
standing to bring

failed to allege
case.

supporting

this

However,

in light

of

the parties'

agreement

that

Mosley

ultimately submitted over 1,000

signatures

in total,
supporters will

the majority
in

of which were witnessed by out-of-district violation of Va. Code § 24.2-506, this

Court

proceed to

address defendant's

other

arguments

to dismiss

this action.

iii.

Eleventh Amendment

Defendant next

contends

that

this

suit

against

the Virginia

3 The parties disagree as to the exact number of total
signatures, with plaintiffs alleging that Mosley and his supporters submitted 1,496 signatures, while defendant alleges
that he submitted only 1,467 total signatures. Compare Br. Supp. of PL's Mot. for Summ. J. and in Opp. to Def.'s Mot. in to

Dismiss at
However,

3 to Def.'s Opp.

to Pi.'s Mot.

for Summ.
the facts,

J.

at

3.

under either party's version of

Mosley would

have obtained sufficient were permitted to count.

signatures Instead,

to clear once the

the

1,000

threshold,

provided that signatures collected by out-of-district circulators
signatures witnessed
by out-of-district circulators were discarded, the Virginia State Board of Elections found that Mosley had only submitted 425 properly verified signatures. See of PL's Mot. for Summ. J. and in Opp. to Def.'s Mot. to Dismiss {attaching a letter from the
Secretary of the State Board to Mosley 10 to that effect).

State

Board of

Elections

should be of

dismissed

because bars

the

Eleventh

Amendment-based doctrine against Under state 356, a state or state

sovereign filed

immunity under 42

claims § 1983. sue U.S. "not a

agency

U.S.C.

the in 363

Eleventh Amendment, federal (2001). court. Bd.

private of

individuals v.

may not 531

Trustees the

Garrett,

Furthermore, a State

Eleventh Amendment as

bars

only actions but also

in which

is

actually named state agents of

the defendant, state v. Doe, 519

certain actions

against of

and Cal.

instrumentalities." U.S. 425, In Board of 529 (1997). case,

Regents

the Univ.

this

both parties is a state

agree

that

the Virginia

State

Elections

agency

established

to oversee

elections under Va.
undisputed that the

Code
Board

§

24.2-103.
of Elections

See Compl.
functions

H
as

12.
a

It is

quintessential candidates

"arm

of

the

State"

with respect

to approving official of Educ. v.

for official ballots Mt.

and making

other

election-related decisions. Dovle, of 429 U.S. is 274, 280

Healthy City Bd. A suit against

(1977).

the State Board to a suit Board of

Elections

therefore

functionally equivalent and the

against

the Commonwealth of Virginia, is entitled the to the same

State of

Elections

protections

sovereign

immunity as

Commonwealth attempt that

itself. Young, 209 U.S. 123

Plaintiffs (1908), to argue

to rely upon Ex parte the

they may sue

defendant,

an agency of

II

the

Commonwealth,

seeking prospective the

relief

only.

However, the Ex

as

defendant

correctly responds, only allows individual not has

legal

fiction of

parte

Young doctrine relief local against

suit

for

injunctive or officials or state

or declaratory of a state or

officers

government, Congress for

against never

a state

agencies.

Moreover, immunity

abrogated Eleventh Amendment to 42 33 F. U.S.C. Supp. 2d § 1983 469, suits. 474-75 See (E.D.

states

with

regard Univ..

Demuren v. Va. 1999),

Old Dominion aff'd, 188

F.3d 501

(4th Cir.

1999).

For

those reasons,
Board

plaintiffs'
of

42

U.S.C.
is

§

1983
by

suit

against

the Virginia State Amendment. to

Elections have that

barred in

the

Eleventh

However, motion

plaintiffs to dismiss

stated " [i]f

their

opposition

defendant's that

a determination were to the legal

made

the plaintiffs suing the

should have of the

resorted Board

fiction of

members

in their

official

capacities
seek to

rather

than the

Board

as

an entity,
Br.

plaintiffs
in Supp.

would
of Pis.'

amend

their complaint

accordingly."

Mot.

for

Summ.

J.

and in Opp'n notification,

to Def.'s Mot. this Court will

to Dismiss therefore states

at

14.

In light of proceed to
plausible

that

also a

consider whether plaintiffs'
claim for relief on

complaint

the merits.

12

B.

Plaintiffs'
Can Be

Failure

to State

a

Claim upon which Relief

Granted

I.

Parties'

Arguments

Plaintiffs

claim

that

the Code

in-district § 24.2-506

residency requirement violates their First

for circulators under Va.
and Fourteenth Amendment that the residency

rights.

In particular, "impairs

plaintiffs rights

allege to have

requirement of law, to

plaintiffs'

equal

protection

cast

their votes

effectively,

and

to speak and associate politically, right ... to create

including their [a] new

'constitutional

and develop

political party[y].'" 5 (citing Norman v.
that

Pis.'s

Compl.

for Decl. 288

and Inj.

Relief

at

Reed,
such

502 U.S.
impairment

279,
of

(1992)).

Plaintiffs
cannot

further allege

plaintiffs'

rights

be

justified by a

sufficient

state

interest. Code §

Id. creates a to reside

Plaintiffs also argue

that Va. it

24.2-506

constitutional anomaly because

requires

circulators

in the congressional petitions,
themselves of at PL's 7-8.

district where

they are circulating candidates for Congress
in Supp.

while under the
need not reside J.

Constitution,
in those and

districts." to Def.'s is

See Br. Mot.

Mot.

for Summ. case,

in Opp. Mosley

to Dismiss of the

In this

plaintiff

a resident is

Tenth Congressional

District

in Virginia but

seeking to run

4 Article I of the U.S.
Representative
seven years, be chosen."

Constitution requires only that a
25 years
of § 13 that 2, I,

in Congress
"an Const.

be

old,
cl. 2.

a U.S.

citizen
he

for
shall

and U.S.

Inhabitant Art.

State

in which

for election Constitution, § 24.2-506,

in he

the is

Eighth

Congressional to do so, serve

District. but as under a who

Under Va. Code

the

permitted

he

is

not

permitted to any other

circulator reside

of

his

own petition, but do not

nor are in the

supporters

in Virginia allowed to is

live his

Eighth

Congressional therefore

District argues

circulate

petition. and

Plaintiff

that state

it

both anomalous laws to impose

unconstitutional residency

for Virginia's requirements

election

in-district

for

circulators. In Board of claim support of its motion that to dismiss, plaintiffs granted. the Virginia have failed State to state a

Elections which

argues

upon

relief

can be

Defendant burden

contends

that

the Virginia Mosley's

statute to

imposes ballot See

only a modest and upon his

on plaintiff

access

the

co-plaintiffs' to PL's Opp.

constitutional

rights.

Def.'s

Reply

in Resp.

to Mot.

to Dismiss at

5-7.
for

Defendant
circulators

further argues
is justified by an

that
the

the

residency restriction Commonwealth's

important

interests

in ensuring

efficient

and

fair electoral
Id.

process

in district-wide

congressional

elections.

ii. Both

Framework agree

for that

Review the Supreme Court has set forth a

parties

balancing

test

in Anderson v.

Celebrezze,

460 U.S.

780

(1983),

which trial courts must use
challenges to

in evaluating

constitutional
on access to the ballot

state-imposed restrictions 14

The

Fourth

Circuit

has

consistently challenges
F. Supp.

applied to
2d

that

test

in cases See

involving constitutional
e.g., Barr v. Ireland,

voting
747,

regulations.
(S.D. W. Va.

575

756

2008);

Levy v.

Jensen,

285

F.

Supp.

2d

710,

715

(E.D.

Va.

2003)

Under the Anderson [The Court] of

test: first First consider injury and the to character the rights that and

must the the

magnitude

asserted

protected by

Fourteenth Amendments

the plaintiff seeks to vindicate. identify and evaluate the precise by the State as justifications for

It then must interests put the burden

forward

imposed

by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of
those which interests, those is the it also must make it consider necessary weighing is the extent these to decide to the interests rights. the to burden all

plaintiff's factors whether

Only after court

reviewing

in a position

challenged

[restriction]

unconstitutional. Anderson, 460 U.S. at 789 (striking down Ohio's filing deadline

for
for

independent
candidates

candidates,
for major

which was
see

earlier
also

than

the deadline
Takushi,

parties);

Burdick v,

504

US.

428,

433-34

(1992)

(upholding Hawaii's elections).
observed, "to

ban on write-in

voting
As

in state
the

and federal
Court

Supreme

has

subject

every

voting

regulation to strict scrutiny and to require
be narrowly tailored to tie the hands of advance States a compelling

that
state

the regulation
interest . . .

would

seeking to assure
Burdick,

that
504

elections are
at 433. scale

operated equitably and efficiently." Therefore, Anderson and Burdick

U.S. a

together

establish

sliding

of

judicial

review,

ranging from strict
the particular

scrutiny to rational basis
and circumstances of

review,

depending upon

facts

15

each

case.

Under

the

Anderson-Burdick

framework,

the

"rigorousness
election law

of

[a court's]
upon the and are

inquiry into
extent to

the propriety of
a challenged rights."

a

state

depends

which

regulation burdens 434. When those

First

Fourteenth Amendment "subjected to severe

Id.

at the

rights

restrictions,

regulation must be
compelling imposes the

narrowly drawn
But when a

to advance a
state

state

interest

of

importance.

election

law provision . . .

only reasonable, important

nondiscriminatory restrictions interests are generally

state's

regulatory

sufficient
460 U.S. at

to

justify the

restrictions."

Id.

(citing Anderson,

788). case, defendant persuasively argues that Virginia's

In this

requirement signatures,
where they

that prospective

candidates

file

a petition with the

1,000

gathered and witnessed by residents of
intend to run, is not a "severe

district
on

restriction"

plaintiffs'

constitutional
See

rights under
Def.'s Reply

either
to

the

First
Opp.

or the
to

Fourteenth Amendments.

Pi.'s

to Mot.

Dismiss at

2.

The district

residency requirement at

issue

imposes

no discriminatory restrictions on Mosley as
advocate, ballot. nor does Rather,

a candidate or
access to the

it deny third-party candidates Code § 24.2-506 is a neutral

Va.

requirement that of

applies equally to political party.

all

potential

candidates, equal

regardless

"Under

traditional

protection principles,

legislatures are presumed
presumption is overcome

to have acted constitutionally,
the challenged or on a

and this

'only when

statute places

burdens upon suspect

classes

of persons

constitutional

16

right
148 F.

that

is deemed
2d 630,

to be
635

fundamental.'"
Va. 2001)

Amarasinqhe v.
(Friedman, J.)

Quinn,
{applying

Supp.

(E.D.

rational

basis review and denying a motion

for a preliminary

injunction in a challenge to Va.
requirement).

Code

§

24.2-506's

1,000

signature

Plaintiffs have not

alleged any facts

sufficient and "[t]he

to establish fact that a

such a discriminatory burden in this case, [Mosley] has chosen to run

for political office

independent of
class -,

party affiliation does strict scrutiny."
2010

not place

him in a suspect F Supp.
(E.D. Va.

triggering

Lux v.
WL

Rodrigues,
at *6

2d.

No.
26, 2010)

3:10CV481-HEH,

3385181,

Aug.

(Hudson,
to Va.

J.)
§

(rejecting a First and Fourteenth Amendment challenge
24.2-506's in-district residency requirement that

Code

was

identical

in substance

to

that raised by plaintiffs here).5 the

Strict

scrutiny review is
in

therefore not appropriate under
case.

Fourteenth Amendment

this

In light of precedent also failed to establish a Amendment rights
Party of Va. severe v.

in the

Fourth Circuit,

plaintiffs have

"severe restriction"

on their First See Libertarian
(finding no to a Virginia

for Anderson-Burdick purposes.
Davis. 766 F.2d 865 (4th Cir. strict

1985)

burden and declining

to apply

scrutiny

law requiring in-district residency for petition circulators in
statewide elections). have held, Va. Code § As several other decisions of does this district

24.2-506

not unduly restrict a

s Tellingly,
neutral ballot

plaintiffs do not cite a single case finding a
such as the one at issue in this case

restriction

violative of

the Fourteenth Amendment's
17

Equal

Protection Clause.

candidate's ability to constituents, nor does

communicate with his prospective it unduly limit to See, Supp. the ability of residents of

a congressional prospective Wood v. affd,

district

sign petitions e.g., 2d 611 200) Lux, (E.D.

in support of a WL 3385181, at *5; J.),

candidate. 104 F.

2010 Va.

Quinn, 230

2000)

(Spencer,

F.3d 1356

(4th Cir.

(per curiam) Code §

(applying

rational

basis

review and upholding Va.

24.2-506's

numerosity and geographical distribution requirements);
Amarasinghe, § 24.2-506, 148 F. Supp. is free in 2d at to 635. Rather, his under Va. thoughts Code and ideas are

Mosley

communicate Eighth

to voters, free

and voters

the

Congressional

District

to express

their support

for Mosley's

candidacy,

provided

only that another person qualified to vote

in the Eighth District

is present when any voters sign Mosley's candidate petition.
Moreover, as defendant correctly argues, plaintiff Mosley and

his other out-of-district Mosley campaign and assist someone eligible to vote
accompanied them and was

supporters could still work for the in circulating his petition, so long as

in

the Eighth Congressional District
to witness any voters'

present

signatures.

See Va.

Code.

§

24.2-506.

Alternatively,

Mosley

could simply have had one or more persons from the Eighth
Congressional District, witness such as plaintiff Barrett, required signatures.
the required

obtain and Id. Finally,
he

the minimum number of

even were Mosley unable

to obtain

signatures,

could still have pursued available procedures

for becoming a

18

write-in candidate,
support Va. for him Code §

and his

supporters

could have
on his

espoused
behalf.

their

by writing 24.2-506's

in their votes in-district

residency

requirement

therefore does constitutional at 434

not

rise

to to

the

level

of

"subject[ing plaintiffs' Burdick, noted, 504 "the 'does
457

rights]

severe restrictions." As the Supreme

U.S.

(emphasis

added). to a
close

Court has

existence of barriers
not U.S. of itself 963 compel (1982)

candidate's access
scrutiny.'" Bullock v.

to the ballot
v. 405 Fashing, U.S.

Clements Carter,

957,

(quoting

134

(1972)).

Judges

in

this

district Code strict

have §

considered challenges three to times,

to

the constitutionality of Va. time that 2010
148

24.2-506 scrutiny

and each

have declined statute,

to

apply

their

review of See Lux, Amarasinghe,
analyze

instead employing at *5;
635.

rational F.

basis

review. 615;
will

WL 3385181,
F. Supp.

Wood,

104

Supp.
this

2d at
Court

2d at

Accordingly,

plaintiffs'

constitutional

challenges

under

the

lens

of

the

Anderson-Burdick version of rational basis state's important regulatory interests"
nondiscriminatory ballot
(citing Anderson, 460 U.S.

review,

under which to justify
Burdick,

"a

will

suffice

any neutral,
U.S. at 434

requirements.
at 788).

504

iii. Applying of

Analysis the Anderson-Burdick framework to this reveals case that in light

Supreme Court and Fourth Circuit precedent

plaintiffs have failed to

state

a valid

legal

claim upon which

19

they are

entitled to relief.

Rather,

Virginia's like most

in-district electoral law by in the and

residency requirement ballot state's restrictions,

for circulators, is justified as

a matter of

legitimate and important
the a electoral substantial

regulatory
"[A]s of

interests

safeguarding there must be

process.

a practical matter, elections if they are to

regulation

be is

fair and honest and if

some

sort

of order,

rather than chaos, 415 U.S. at

to accompany the democratic processes." The First and Fourteenth Amendments
purposes, but that

Storer, protect
freedom

730.

the
is

freedom to
not absolute

associate

for political

and are

is

"necessarily run

subject

to qualification

if

elections Socialist Workers
104 F. Supp. 2d at

to be
479

fairly and effectively."
189, 193 (1986); see

Munro v.
Wood,

Party,
614.

U.S.

also

While every statutory constraint on the circulation of a candidate's ballot petition implicates
Amendments to some degree, this Court

the First
finds that

and Fourteenth
the in-district

residency restrictions
reasonable regulatory

imposed by Va.
interest. The

Code

§

24.2-506

serve

a

in-district

residency

requirement is a neutral,
ensure efficient and

non-discriminatory measure designed to
and to serve an important

fair elections

state

interest

in protecting the political process
Wood,

and "avoiding
104 F. Supp, 2d

confusion caused by an overcrowded ballot." at 614-15 (citing Clements, 457 U.S. at 965).

Courts

have

historically recognized that states have a valid interest keeping [their] ballots within manageable,
20

"in limits."

understandable

Lubin v.
U.S. at

Panish.
788, n.9

415 US.
{"The

709,

715

(1974);

see also Anderson,

460

State has

the undoubted right

to require

candidates

to make a preliminary showing of

substantial

support in

order to qualify for a place on the ballot,
wasteful and confusing to encumber

because it is both
with the names of

the ballot

frivolous

candidates.").

To that

end,

the Supreme Court has "condition access to the

upheld ballot access provisions

that may

general election ballot by a minor-party or independent upon a showing of a modicum of
for the office." Munro, 279

candidate

support among the potential voters
at 193.

U.S.

Controlling case of Va.
766

law in the Fourth Circuit, F. Supp. 1561, 1564
also

Libertarian Party 1984), aff'd.

v.

Davis,
865, 869

591

(E.D.

Va.

F.2d

(4th Cir.

1985),

supports

dismissing

this action for failure to

state a claim.

In Davis,

the Fourth

Circuit found that by comparison to many other states,
process for obtaining access to the ballot is "one of

Virginia's
the least

burdensome

in the nation."

766

F.2d at

868. to

The

Fourth Circuit

then upheld a Virginia statute analogous Court,

the one before this for statewide elections

which required petition circulators

to reside in the same district as the petition signers whose
signatures they witnessed. The Davis court held that the

residency requirement met an "important" interest

and indeed

"compelling" "significant

in ensuring that potential candidates have a

modicum of ballot,"

support before being granted a place on the state's "confusion, deception, and even

and thereby avoiding

frustration of

the democratic process at
21

the general election."

Id.

Given

those the

important had a

state

interests, basis

the for

Fourth Circuit requiring that

found that

state

legitimate

"within each congressional
'activist'

district

there

[be]

at

least

one

sufficiently motivated

to shoulder

the burden of

witnessing signatures"

for candidates'

petitions.

Id.

at

870.

Davis dealt with a district
statewide elections, different while

residency requirement for
here challenge a in

the plaintiffs

residency requirement congressional less

for circulators The

of petitions in Davis,

single-district however, is no

races.

rationale to the

compelling as applied
Davis's

instant
with even greater

controversy.

Indeed,

reasoning applies

force here,

where

the

state

seeks

to ensure

that

candidates

have a

significant modicum of election is

support

in the sole district where

the

taking place,

and whose residents Otherwise,

the candidate would a candidate might

ultimately represent gain access to in-district

if elected.

the ballot

in a district without having a single supporters committed enough to

supporter or group of

obtain and witness the minimum number of signatures.
particularly problematic where, as here, the candidate

That

is

himself resides outside the district where he wishes to run for
office.

Plaintiffs argue
undermined by recent

that the rationale
Supreme

in Davis
case

has been
law in other

Court precedent,

circuits,

and the Virginia legislature's amending the statute at in-district residency requirement for
arguments holds
22

issue in Davis to remove the
statewide races. None of

those

water.

First,

the

mere

fact
the

that

the

legislature has
requirement of the Fourth

amended Va.
not in

Code

§

24.1-159
alter

to
the

remove

residency status

doss

any respect decision

precedential upholding the

Circuit's

in Davis

previous the

statute's Court issue

constitutionality. has in never this struck case as down a residency

Moreover, requirement

Supreme one at

like

the

unconstitutional,
repeatedly cite 525 U.S. 182,

either before or after Davis.
Am. Constitutional

Plaintiffs
Law Found., Inc.,

to Buckley v. (1999) for

183

the propositions speech" and that

that

"[pjetition on

circulation is

core political

any restrictions

petition circulators
Br. in Supp. of PL's

therefore violate the First Amendment.
Mot. for Summ. J. and in Opp.

See

to Def.'s Mot. statute

to Dismiss at that

10.

However,

Buckley dealt

with a

Colorado

required not
but also

only that petition circulators be
that they wear

registered
bearing

voters,

identification badges

their names,

and that

they publicly report they were paid
525 U.S. at

their names,

addresses, in the
Va.

and the amount of money that
petition circulation process. Code § 24.2-506 is far less

to participate
186. not

By contrast, require that

onerous:

it does

petition circulators be
them to identify

registered
or make

to vote,
any sort

nor does
of

it require

themselves

public

disclosures.
need only be

Under the
residents

terms of the statute,
of the districts

Virginia circulators
they witness

in which

signatures and qualified to
See Va. Code § 24.2-506.

register

to vote

in those districts.

23

Moreover,

far

from

calling

the

rationale

of

Davis

into

question,
Supreme e.g.,

dicta in

the Buckley opinion
support

in fact

expresses

the
See,

Court's U.S.

general at 197 a

for residency that a mere

requirements.

525

(assuming needful

"residence

requirement see

would be

upheld as

integrity-policing measure");

also
"the

id-

at

195,

n.16

(expressing
are

support

for statutes
petition

under which

merely voter

eligible

included

among

circulators").
requirements
Court noted

Specifically,

with respect
in statewide
valid

to residency
elections,
in

for circulators
that states have

the Buckley
to

interests

"seek[ing]

ensure

that

circulators will be amenable
which in Id. these at

to the
matters

Secretary
does not

of
extend only

States's beyond

subpoena power, State's the

the

borders."

196. the

Buckley Fourth

therefore

buttresses

conclusion

reached by

Circuit

in Davis,

a decision which remains In their opposition

good

law

in

this

jurisdiction.

to defendant's Motion to Dismiss,

plaintiffs this

do not cite any decisions that question,

of

the Fourth Circuit or of or undermine the Davis

district

distinguish,

holding. presenting

Rather, factual
For

they cite only to cases

from other jurisdictions from the instant
226 F.3d 851,

scenarios distinguishable
example, in Krislov v.

controversy.

Rednour,

860

(7th Cir.

2000),

the Seventh Circuit

struck down a
for

law that

included not

only a district

residency requirement

circulators,
onerous

but also a voter registration requirement,
requirement under which candidates more signatures
24

and a more

signature

had to gather of the

two-and-a-half

times

as

a percentage

electorate

than prospective

congressional Similarly, (2d Cir.

candidates Lerman v.

in Virginia's

Eighth District must obtain.6 Elections.
that

Board of

232

F.3d 135,

139

2000),

involved requirements
of deeds, or

circulators be notary publics,

commissioners

duly qualified and enrolled voters of

the same political party as

the petition signers.

Under the statute at issue

in Lerman, from five
times the

candidates were also required to obtain signatures
percent of the district's electorate,

or twenty-five

proportion of signatures v Land, 572 F. Supp. 2d

required here. 883, 898 (W.D.

Id.

Meanwhile,

Bogaert

Mich.),

involved a

requirement that recall petition circulators be registered to vote
and residents of
proposed. The

the

legislative district where
law in Bogaert also

the recall
that

is

challenged

required

circulators obtain signatures from a full twenty-five percent of
the electorate, or 125 times the percentage required here. at least id. on

The holding in Davis

expressly rested,

in part,

the Fourth Circuit's assessment
requirements, circulators,
states. 766

that Virginia's ballot access
for in other

including were

its

residency requirements

"indulgent"
869. The

by comparison to those
unique

F.2d at

leniency of Virginia's

petition signature requirements means

that decisions from other

circuits addressing more burdensome electoral requirements in
other states are simply inapposite to this case. Plaintiffs'

signatures, or 0.2 percent of the Eighth District electorate, in order to run for a seat in the U.S. House of Representatives from
that District.

Prospective

candidates

like Mosley must

obtain 1,000

25

repeated citations

to non-binding authority in other jurisdictions

simply do not disturb the controlling weight of Davis
action. Moreover, in the years since Buckley,

in this

other federal for circulators

courts have

in fact upheld residency requirements

in statewide races,
Fourth Circuit's

along lines of reasoning very similar to the
See, e.g., Initiative &

rationale in Davis.

Referendum Inst.

v.

Jaeger.

241 F.3d 614,

617

(8th Cir.

2001)

(affirming a residency requirement,
for discouraging fraud); Kean v.

finding that it was important
56 F. Supp. 2d 719, 728-29

Clark.

(S.D. Miss.
of State,
1999)

1999)

(same);
Dist.

Initiative & Referendum Inst.
LEXIS 22071 at M3-48
Gale, 2010 U.S.

v.

Sec'y
23,
65821

1999 U.S.

(D.

Me.

Apr.
LEXIS

(same);

see also Groene v.

Dist.

(D.

Neb.

July 1,

2010)

(denying a motion for a preliminary

injunction in a case challenging a state residency requirement for
petition circulators).

Finally,

if there were any doubt that Davis

is controlling

and indeed dispositive authority in this case,
in Lux v.
Aug. 26,

the recent decision
(E.D. Va.
Lux

Rodrigues.
2010)

- F.

Supp.

2d -,

2010 WL 335181

(Hudson,

J.)

dispels it.

Relying upon Davis,

rejected an identical constitutional attack upon the precise residency requirement for petition circulators that plaintiffs
challenge in this action. See 2010 WL 3385181, at *6.

Specifically,

Judge Hudson applied rational basis review and found Code § 24.2-506

that the in-district residency requirement in Va.
serves a legitimate state purpose and does not

impose any severe

burden on the plaintiffs'

First or Fourteenth Amendment rights.
26

Id.

Citing Davis, for the

the Lux decision

states

that

"the U.S.

Court

of and

Appeals that

Fourth Circuit

appears

to have

spoken clearly" [of the

"the

restrictions

imposed by Section 24.2-506

Virginia Code] Id-

appear

to serve a reasonable

regulatory interest."

Accordingly,

the Lux court held that to
at

the plaintiffs' that is plausible

11 [c] omplaint fails
on its face." Id.

state
*7.

a claim for relief

The

complaint

in Lux

is

virtually indistinguishable

from

plaintiffs'

complaint

in this

case,

both on its

facts and in its this Court

First and Fourteenth Amendment

arguments.

Therefore,

will follow the well-reasoned conclusion that plaintiffs' to relief.
Motion

in Lux and similarly find a plausible entitlement

complaint does not assert

Accordingly,

the Virginia State Board of Election's
granted.

to Dismiss will be

IV.

Conclusion

For the reasons Opinion,
to be

stated in open court and in this Memorandum

defendant's Motion to Dismiss will be granted by an Order
Memorandum Opinion.

issued with this

Entered

this

it

day

of

September,

2010.

/s/
Alexandria, Virginia

Leonie M. Brinkema United Slates District Judge

27