Perry v. Judd et al

Filing 34

Reply to 17 MOTION to Dismiss the Complaint filed by Rick Perry. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bagnell, Edward)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
THE HONORABLE RICK PERRY,
Plaintiff,
v.
CHARLES JUDD, KIMBERLY
BOWERS, and DON PALMER, members
of the Virginia State 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

PLAINTIFF’S RESPONSE TO DEFENDANT PAT MULLINS’ MOTION TO DISMISS
NOW COMES PLAINTIFF, HONORABLE RICK PERRY, and in response to
Defendant Pat Mullins’ Motion to Dismiss states:
1. Both the State Board of Elections (the “Board”) and Pat Mullins, in his official capacity as
Chairman of the Republic Party of Virginia have misread and misapplied Va. Code Ann. §
24.2-545(B) to be mandatory and not permissive. That section of the Virginia Code reads:
Any person seeking the nomination of the national political party for the
office of President of the United States, or any group organized in this
Commonwealth on behalf of, and with the consent of such person, may
file with the State Board petitions signed by at least 10,000 qualified
voters, including at least 400 qualified voters from each congressional
district in the Commonwealth, who attest that they intend to participate in
the primary of the same political party as the candidate for whom the
petitions are filed. Such petitions shall be filed with the State Board by
the primary filing deadline. The petitions shall be on a form prescribed by
the State Board and shall be sealed in one or more containers to which is
attached a written statement giving the name of the presidential candidate
and the number of signatures on the petitions contained in the containers.

Such person or group shall also attach a list of the names of persons who
would be elected delegates and alternate delegates to the political party’s
national convention if the person wins the primary and the party has
determined that its delegates will be selected pursuant to the primary. The
slate of delegates and alternates shall comply with the rules of the national
and state party.
The State Board shall transmit the material so filed to the state chairman
of the party of the candidate immediately after the primary filing deadline.
The sealed containers containing the petitions for a candidate may be
opened only by the state chairman of the party of the candidate. The state
chairman of the party shall, by the deadline set by the State Board, furnish
to the State Board the names of all candidates who have satisfied the
requirements of this section. Whenever only one candidate for a party’s
nomination for President of the United States has met the requirements to
have his name on the ballot, he will be declared the winner and no
presidential primary for that party will be held.
2. Despite the clear wording of the statue that the filing of petition signatures is permissive,
Zinone v. Lee’s Crossing Homeowner’s Assn., 282 Va. 30, 714 S.E.2d 922, 925 (VA. Sup.
Ct. 2011), Defendants have misapplied the statue and, under color of state law, have
wrongfully and unlawfully deprived Governor Perry a position on the ballot for office of
President of the United States in the Republican Primary.
3. On May 25, 2011, the State Board of elections adopted “Deadlines, Duties and Ballot Access
Requirements”, a copy of which is attached hereto as Exhibit A. Under the category of
“Ballot Access Requirements”, the Board stated: “Candidates wishing to participate in the
presidential primary must follow the procedures outlined below.” The Board, under the
category of “Petition Requirements”, then made this statement:
“Must be signed by not less than 10,000 qualified voters in Virginia,
including at least 400 qualified voters from each of Virginia’s eleven
congressional districts, who attest that they intend to participate in the
primary of the same political party as the candidate named on the petition.

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Because many people who are not registered to vote will sign a petition, it
is recommended that 15,000-20,000 signatures be obtained with at least
700 signatures from each congressional district.”
4. The “Deadlines, Duties and Ballot Access Requirements” document, to the extent it altered
the requirements to be on the primary ballot in Virginia, was required to have been, but was
not pre-cleared by the United States Department of Justice pursuant to Section 5 of the
Voting Rights Act.
5. Defendant, Pat Mullins, in his capacity as Chairman of the Republican Party of Virginia,
issued on the Party’s website (www.rpv.org) an open undated letter establishing guidelines
for all candidates seeking a position on the Republican Presidential and Senatorial primaries.
(Exhibit B). In his letter, Defendant Pat Mullins wrote:
“Under the Code of Virginia, any candidate who wants to have their name
placed on the March 1, 2012 Republican Presidential Ballot or the June
12, 2012 U.S. Senate Primary must collect the signatures of 10,000
registered voters statewide, with at least 400 signatures of registered
voters from each of Virginia’s eleven Congressional Districts”.
6. In the next paragraph of Exhibit B, Defendant Pat Mullins creates a “safe-harbor” for
candidates who submit 15,000 signatures of registered voters with at least 600 from each
Congressional District. The statute, of course, does not have this safe harbor provision.
7. Exhibit B was not pre-cleared by the Republican Party of Virginia with the U.S. Department
of Justice pursuant to Section 5 of the Voting Rights Act.
8. The Defendants jointly, and specifically Defendant Pat Mullins in reliance upon the actions
of the Board, may not enforce a change in voting process or procedures without first
obtaining pre-clearance pursuant to the Voting Rights Act. The failure to pre-clear Exhibits
A and B, to the extent they create petition signature requirements the statute does not, means

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there is no petition signature requirement to be on the primary ballot for the office of
President of the United States.
9. Finally, neither Defendant can state a constitutionally justifiable state interest in requiring
petition circulators to be eligible to vote in Virginia or in the extraordinary number of
required petition signatures of qualified voters.

Plaintiff adopts and relies upon the

arguments set out in its Brief to the Court filed on January 6, 2012 in support of this
response.
WHEREFORE, premises considered, Plaintiff Governor Rick Perry prays the Motion to
Dismiss of Defendant, Pat Mullins, be denied.
January 6, 2012

Respectfully Submitted,
THE HONORABLE RICK PERRY

/s/ Edward Everett Bagnell, Jr.
Hugh M. Fain, III (VSB # 26494)
Email: [e-mail]
M. F. Connell Mullins, Jr. (VSB No. 47213)
Email: [e-mail]
Edward E. Bagnell (VSB # 74647)
Email: [e-mail]
411 East Franklin Street, Suite 00
Richmond, VA 23219
Telephone: [phone]
Facsimile: [phone]

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BEIRNE, MAYNARD & PARSONS, L.L.P.
Joseph M. Nixon (Admitted pro hac vice)
James E. (“Trey”) Trainor, III (Admitted Pro hac vice)
Martin D. Beirne (Admitted pro hac vice)
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

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CERTIFICATE OF SERVICE
I hereby certify that on January 6, 2012, I will electronically file the foregoing document
with the Clerk of the Court using the CM/ECF System, which will then send a notification of
such filing (NEF) to all counsel of record:
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
Lee Elton Goodman
[e-mail]
LeClairRyan, A Professional Corporation
1701 Pennsylvania Ave NW
Suite 1045
Washington, DC 20006
Counsel for Pat Mullins,
in his official capacity as
Chairman of the Republican Party of Virginia.

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Charles M. Sims (VSB No. 35845)
LeClairRyan, A Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Patrick Mullins,
Chairman of the Republican Party of Virginia
J. Christian Adams
Virginia Bar #42543
Election Law Center, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Intervenors Gingrinch, Huntsman,
and Santorum
/s/ Edward Everett Bagnell, Jr.
Edward Everett Bagnell, Jr. (VSB No. 74647)
Email: [e-mail]
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
P.O. Box 1555
Richmond, Virginia 23218-1555
Telephone: [phone]
Facsimile: [phone]
Attorneys for The Honorable Rick Perry

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