Perry v. Judd et al

Filing 33

Memorandum in Support re 32 MOTION to Dismiss the Intervenors' Complaint filed by Pat Mullins. (Sims, Charles)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
THE HONORABLE RICK PERRY,
Plaintiff,
NEWT GINGRICH, JON HUNTSMAN,
JR., and RICK SANTORUM
Intervenor-Plaintiffs
v.
CHARLES JUDD, KIMBERLY BOWERS,
and DON PALMER, members of the
Virginia Board of Elections, in their official
capacities, and PAT MULLINS, in his
official capacity as Chairman of the
Republican Party of Virginia,
Defendants.

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Civil No. 3:11-CV-856

THE REPUBLICAN PARTY OF VIRGINIA CHAIRMAN’S MEMORANDUM IN
SUPPORT OF MOTION TO DISMISS THE INTERVENORS’ COMPLAINT
Pursuant to Fed. R. Civ. P. 12(b)(1) and Article III of the U.S. Constitution, and Fed. R.
Civ. P. 12(b)(6), Defendant Patrick Mullins, in his capacity as Chairman of the Republican Party
of Virginia (“Chairman” or “Chairman Mullins”), by counsel, respectfully moves the Court for
an order dismissing the Intervenors’ Complaint as to the Chairman. In support of this motion,
Chairman Mullins states as follows:
ARGUMENT
1.

The Intervenors’ Complaint asserts the same constitutional challenges to

Virginia’s ballot petition laws that were asserted in Governor Perry’s Complaint. The causes of
action asserted are identical.

2.

Therefore, the Chairman incorporates by reference and reasserts here the legal

arguments, authorities and grounds for dismissal set forth in his Motion to Dismiss the
Complaint and Memorandum in Support dated January 3, 2012 (D.N. 18).
3.

The Intervenors’ Complaint alleges the unique factual circumstances of each

prospective candidate’s filings and submissions to the State Board of Elections. None of the
factual circumstances alleged establishes a cause of action against Chairman Mullins.
4.

John Huntsman (“Huntsman”) alleges that he did not submit a Declaration of

Candidacy or any petition signatures to the State Board of Elections (Complaint at ¶ 26), and he
alleges that the State Board of Elections determined that he did not meet Virginia’s legal
requirements to appear on the Virginia Republican primary ballot. Id. at ¶ 29. Therefore,
Chairman Mullins had no role in reviewing petition signatures, determining Huntsman’s
compliance with Virginia’s legal requirements, or certifying that Huntsman had met the
requirements of Va. Code § 24.2-545.
5.

Likewise, Rick Santorum (“Santorum”) alleges that he did not submit any petition

signatures to the State Board of Elections (id. at ¶ 28), and he alleges that the State Board of
Elections determined that he did not meet Virginia’s legal requirements to appear on the Virginia
Republican primary ballot. Id. at ¶ 29. Therefore, Chairman Mullins had no role in reviewing
petition signatures, determining Santorum’s compliance with Virginia’s legal requirements, or
certifying that Santorum had met the requirements of Va. Code. § 24.2-545.
6.

Newt Gingrich (“Gingrich”) alleges that he submitted a Declaration of Candidacy

and “11,050 petition signatures of purportedly eligible Virginia voters, of which less than 10,000
were ultimately verified as registered voters on the Board’s registration rolls.” Id. at ¶ 27
(emphasis added). Gingrich also alleges that Chairman Mullins determined that Gingrich had

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not submitted 10,000 valid petition signatures, did not meet Virginia’s legal requirements, and
therefore did not certify to the State Board of Elections that Gingrich had met the requirements
of Va. Code §24.2-545. Id. at ¶ 30. Gingrich, however, does not dispute the accuracy of the
Chairman’s signature count or aver that the Chairman came to an incorrect conclusion. Gingrich
also does not allege or assert that the Chairman’s accurate count of the signatures violated any
law. Instead, Gingrich alleges only that the 10,000-signature requirement and in-state witness
requirements caused him to be disqualified from the Virginia ballot and that those laws are
unconstitutional.
7.

None of the Intervenors allege that he submitted petition signatures witnessed by

a non-Virginia resident or that the Chairman rejected or refused to count any signatures on the
basis of the out-of-state residency of the witness. Therefore, the Chairman had no role in
implementing the alleged unconstitutional witness residency requirement.
8.

There is no cognizable dispute between the Intervenors and the Chairman in this

matter and, moreover, the Chairman’s participation is not necessary to a resolution of the
Intevenor’s constitutional challenges to Virginia statutes. The Virginia State Board of Elections
is represented by the Virginia Attorney General’s office, and thus, is the proper party to defend
the constitutionality of Virginia’s statutory scheme for inclusion on a national party’s primary
ballot.
9.

For these reasons, and for the reasons set forth in the Chairman’s Motion to

Dismiss Governor Perry’s Complaint and Memorandum in Support, it is clear that the
Intervenors’ Complaint (a) fails to establish a case or controversy vis-à-vis the Chairman, and
there is no Article III jurisdiction as to the Chairman, and (b) fails to state a claim against the
Chairman.

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10.

Accordingly, the Chairman respectfully requests that the Court enter an order

dismissing the Chairman from this lawsuit.
11.

The Chairman also respectfully requests that the Court waive the filing of a

duplicative memorandum of law in support of this Motion because the grounds for the Motion
are set forth above and in the incorporated pleadings filed in response to Governor Perry’s
Complaint.
Respectfully submitted this 6th day of January, 2012.
/s/
Charles E. Sims (Va. Bar 35845)
LeClairRyan, a Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Lee E. Goodman (Va. Bar 31695)
LeClairRyan, a Professional Corporation
1101 Connecticut Ave., NW, Sixth Floor
Washington, DC 20036
[phone] (Tel.)
[phone] (Fax)
[e-mail]
Attorneys for Patrick Mullins, Chairman
of the Republican Party of Virginia

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CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of January 2012, I electronically filed the foregoing
pleading with the Clerk of the Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to counsel named below:
Hugh M. Fain, III
Edward E. Bagnell, Jr.
Maurice F. Mullins
Spotts Fain PC
411 East Franklin Street
Richmond, Virginia 23218-1555
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for The Honorable Rick Perry

James E. Trainor, III
Joseph M. Nixon
Martin D. Beirne
Beirne Maynard & Parsons LLP
1300 Post Oak Blvd., 25th Floor
Houston, Texas 77056
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for The Honorable Rick Perry

E. Duncan Getchell, Jr.
Wesley G. Russell
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

Joseph N. Lief
Virginia International Raceway
1245 Pinetree Road
Alton, Virginia 24520
Telephone: [phone]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

J. Christian Adams (VSB No. 42543)
Election Law Center, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Newt Gingrich, Jon Huntsman, Jr.
and Rick Santorum

Stefan C. Passantino
J. Randolph Evans
Benjamin P. Keane
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Telephone: [phone]
Facsimile: [phone]
Counsel for Newt Gingrich

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Craig Engle
Arnet Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Telephone: [phone]
Facsimile: [phone]
Counsel for Jon Huntsman, Jr.

Cleta Mitchell
Foley & Lardner LLP
3000 K Street, N.W., Suite 600
Washington, DC 20007-5109
Telephone: [phone]
Facsimile: [phone]
Counsel for Rick Santorum

/s/
Charles E. Sims (Va. Bar 35845)
LeClairRyan, a Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Patrick Mullins, Chairman
of the Republican Party of Virginia

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