Perry v. Judd et al

Filing 31

ANSWER to Intervenor Complaint by Kimberly Bowers, Charles Judd, Don Palmer.(Getchell, Earle)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
THE HONORABLE NEWT GINGRICH,
THE HONORABLE JON HUNTSMAN,
JR., and THE HONORABLE RICK
SANTORUM
Plaintiffs-Intervenors,
v.
CHARLES JUDD, et al.,
Defendants.

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Civil Action No.: 3:11-cv-856-JAG

ANSWER OF CHARLES JUDD, KIMBERLY BOWERS
and DON PALMER TO COMPLAINT OF INTERVENORS
Charles Judd, Kimberly Bowers and Don Palmer, members of the Virginia State Board of
Elections, in their official capacities (collectively, the "defendants"), by counsel, submit their
Answer to the Proposed [sic] Complaint for Declaratory and Injunctive Relief filed by plaintiffsintervenors (collectively, the "intervenors") and state as follows:
1.

Defendants admit that intervenors are candidates for the Office of President of the

United States, but are without sufficient information and belief to admit that intervenor
Huntsman made an effort "to qualify for the March 6, 2012 Republican Primary Election ballot,"
and therefore deny the same.
2.

With respect to the allegations contained in paragraph 2 of the Proposed

Complaint, defendants admit that intervenors did not submit the requisite number of valid
signatures. Defendants are without sufficient information and belief to admit the remaining
allegations of said paragraph, and therefore, the same are denied.

3.

Defendants deny the allegations contained in paragraph 3 of the Proposed

Complaint.
4.

With respect to the allegations contained in paragraph 4 of the Proposed

Complaint, defendants admit that the deadline for printing ballots is quickly approaching and that
intervenors are seeking declaratory and injunctive relief. Defendants aver that intervenors are
not entitled to any of the equitable or declaratory relief they seek.
5.

Defendants admit the allegations in paragraph 5 of the Proposed Complaint.

6.

Defendants admit the allegations in paragraph 6 of the Proposed Complaint.

7.

Defendants admit the allegations in paragraph 7 of the Proposed Complaint.

8.

Defendants admit the allegations in paragraph 8 of the Proposed Complaint.

9.

Defendants admit the allegations in paragraph 9 of the Proposed Complaint.

10.

With respect to the allegations contained in paragraph 10 of the Proposed

Complaint, defendants aver that the referenced sections of the Code of Virginia speak for
themselves.
11.

With respect to the allegations contained in paragraph 11 of the Proposed

Complaint, defendants aver that the referenced sections of the Code of Virginia speak for
themselves. Defendants admit that Mr. Mullins is Chairman of the Republican Party of Virginia.
12.

With respect to the allegations contained in paragraph 12 of the Proposed

Complaint, defendants aver that the referenced section of the Code of Virginia and the exhibit
speak for themselves.
13.

With respect to the allegations contained in paragraph 13 of the Proposed

Complaint, defendants aver that the referenced section of the Code of Virginia and the exhibit
speak for themselves.

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14.

With respect to the allegations contained in paragraph 14 of the Proposed

Complaint, defendants aver that the exhibit speaks for itself.
15.

With respect to the allegations contained in paragraph 15 of the Proposed

Complaint, defendants aver that the referenced sections of the Code of Virginia speak for
themselves.
16. With respect to the allegations contained in paragraph 16 of the Proposed Complaint,
defendants aver that the referenced section of the Code of Virginia speaks for itself.
17.

With respect to the allegations contained in paragraph 17 of the Proposed

Complaint, defendants aver that the referenced sections of the Code of Virginia speak for
themselves.
18.

With respect to the allegations contained in paragraph 18 of the Proposed

Complaint, defendants aver that the referenced section of the Code of Virginia speaks for itself.
19.

Defendants admit the allegations in paragraph 19 of the Proposed Complaint.

20.

Defendants admit the allegations in paragraph 20 of the Proposed Complaint.

21.

Defendants admit the allegations in paragraph 21 of the Proposed Complaint.

22.

Defendants admit the allegations in paragraph 22 of the Proposed Complaint.

23.

Defendants admit the allegations in paragraph 23 of the Proposed Complaint.

24.

Defendants admit the allegations in paragraph 24 of the Proposed Complaint.

25.

With respect to the allegations contained in paragraph 25 of the Proposed

Complaint, defendants are without sufficient information and belief to affirm that intervenor
Santorum signed and affirmed, in the presence of a notary, a Declaration of Candidacy.
Defendants aver that no such Declaration was filed by intervenor Santorum. Defendants admit
all other allegations contained in paragraph 25 of the Proposed Complaint.

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26.

Defendants admit that intervenor Huntsman did not sign a Declaration of

Candidacy.

Defendants deny the remaining allegations of paragraph 26 of the Proposed

Complaint.
27.

With respect to the allegations contained in paragraph 27 of the Proposed

Complaint, defendants admit that intervenor Gingrich submitted fewer than 10,000 valid petition
signatures. Defendants are without sufficient information and belief to admit what number of
valid signatures less than 10,000 intervenor Gingrich submitted.

Defendants admit that

intervenor Huntsman failed to submit any petition signatures, but deny the remaining allegations
of said paragraph.
28.

With respect to the allegations contained in paragraph 28 of the Proposed

Complaint, defendants admit that intervenor Santorum failed to submit any petition signatures.
Defendants are without sufficient information and belief to admit what number of valid
signatures less than 10,000 intervenor Santorum gathered. Defendants aver that the State Board
of Elections did not refuse to accept any petition signatures offered by intervenor Santorum's
representative. Defendants further aver that intervenor Santorum's representative voluntarily
withdrew the petition signatures.
29.

The Defendants deny the allegations contained in paragraph 29 of the Proposed

Complaint.
30.

With respect to the allegations contained in paragraph 30 of the Proposed

Complaint, defendants admit that the Republican Party of Virginia, through its chairman,
announced that intervenor Gingrich failed to submit sufficient valid signatures to qualify for the
primary ballot. Defendants are without sufficient information and belief to admit the remaining
allegations of said paragraph, and therefore, the same are denied.

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31.

Defendants deny the allegations contained in paragraph 31 of the Proposed

Complaint.
32.

Defendants deny the allegations contained in paragraph 32 of the Proposed

Complaint. Defendants further aver that intervenors lack standing to assert an injury arising from an
alleged inability to circulate their own petitions because there is no averment that they stood ready,
willing and able to circulate their own petitions and there is no basis for concluding that they would
have collected a sufficient number of valid signatures had they done so. Defendants also aver that
intervenors Gingrich and Santorum, as persons eligible to vote in the Commonwealth of Virginia,

lack standing to challenge the circulator requirements, as they were not restricted from
circulating their own petitions, had they so desired.
33.

With respect to the allegations contained in paragraph 33 of the Proposed

Complaint, defendants are without sufficient information and belief to admit the allegations of
said paragraph, and therefore, the same are denied. Defendants further aver that intervenors lack
standing to assert an injury arising from the inability to recruit petition circulators who reside
outside of Virginia because there is no averment that he stood ready, willing and able to do so,
and there is no basis for concluding that they would have collected a sufficient number of
signatures had they done so.
34.

Defendants deny the allegations contained in paragraph 34 of the Proposed

Complaint.
35.

With respect to the allegations contained in paragraph 35 of the Proposed Complaint,

the allegations call for a legal conclusion for which no response is required. Defendants aver that
intervenors are not entitled to any of the equitable or declaratory relief they seek.

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36.

With respect to the allegations contained in paragraph 36 of the Proposed Complaint,

defendants re-allege and incorporate by reference all of the allegations contained in all of the
preceding paragraphs.
37.

With respect to the allegations contained in paragraph 37 of the Proposed Complaint,

the allegations call for a legal conclusion to which no response is required. Defendants aver that the
Supreme Court's decision in Buckley speaks for itself and that Virginia's ballot access requirements
for primary candidates are less restrictive than the statute at issue in Buckley.
38.

With respect to the allegations contained in paragraph 38 of the Proposed Complaint,

the allegations call for a legal conclusion to which no response is required. Defendants aver that the
various cited decisions speak for themselves.
39.

Defendants deny the allegations contained in paragraph 39 of the Proposed

Complaint.
40.

Defendants deny the allegations contained in paragraph 40 of the Proposed

Complaint.
41.

Defendants re-allege and incorporate by reference all of the allegations contained in

all of the preceding paragraphs.
42.

Defendants deny the allegations contained in paragraph 42 of the Proposed

Complaint.
43.

Except as expressly admitted above, defendants deny all allegations contained in

intervenors' Proposed Complaint.
AFFIRMATIVE DEFENSES

Defendants hereby plead the following as affirmative defenses to the Proposed
Complaint:

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1.

Having failed to obtain 10,000 valid signatures, intervenors lack standing to

prosecute the claim set forth in Count 1. Intervenor Gingrich also lacks standing to prosecute
Count 2 because the independent act of a third party, and not the 10,000 signature requirement,
prevented intervenor Gingrich from submitting the requisite number of valid signatures.
2.

The Proposed Complaint fails to state a claim upon which relief can be granted.

3.

The relief sought in the Proposed Complaint is barred by the doctrine of laches.

4.

To the extent that the Proposed Complaint references the State Board of Elections

as opposed to its individual members, the State Board of Elections asserts its immunity under the
Eleventh Amendment and associated concepts of sovereign immunity.
WHEREFORE, defendants pray that the Proposed Complaint be dismissed and that the
Court order such further relief to defendants as the ends of justice may require.
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
[e-mail]
Counsel for Defendants Judd,
Bowers and Palmer
Kenneth T. Cuccinelli, II
Attorney General of Virginia

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E. Duncan Getchell, Jr., VSB #14156
Solicitor General of Virginia
E-mail: [e-mail]
Wesley G. Russell, Jr., VSB #38756
Deputy Attorney General
E-mail: [e-mail]
Joshua N. Lief, VSB # 37094
Senior Assistant Attorney General
E-mail: [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of January, 2012, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send a notification of such
filing (NEF) to the following counsel of record for Plaintiff and Intervenors:
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

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 Newt
Gingrich
Stefan C. Passantino, Esquire (pro hac vice
to be filed)
J. Randolph Evans, Esquire (pro hac vice to
be filed)
Benjamin P. Keane, Esquire (pro hac vice to
be filed)
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor Newt
Gingrich

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]
[e-mail]
Counsel for the Honorable Rick Perry

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 Jon
Huntsman, Jr.

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

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Cleta Mitchell, Esquire (pro hac vice to be 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 nonCM/ECF participant:
Lee Elton Goodman, Esquire
LeClairRyan, P.C.
1701 Pennsylvania Ave. NW
Suite 1045
Washington, DC 20006
Phone: [phone]
Counsel for Pat Mullins, in his official
capacity as Chairman of the Republican Party of Virginia
/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
[e-mail]
Counsel for Defendants Judd,
Bowers and Palmer