Perry v. Judd et al

Filing 65

Response to 39 Brief in Support, 37 Brief in Support filed by Kimberly Bowers, Charles Judd, Don Palmer. (Attachments: # 1 Exhibit A)(Getchell, Earle)

Civil Action No.: 3:11-cv-856-JAG
_________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
__________
THE HONORABLE RICK PERRY,
Plaintiff,
and
THE HONORABLE NEWT GINGRICH, THE HONORABLE JON
HUNTSMAN, JR., AND THE HONORABLE RICK SANTORUM
Plaintiff-Intervenors,
v.
CHARLES JUDD, et al.,
Defendants.
_______________
DEFENDANTS' BRIEF IN RESPONSE TO
PLAINTIFF'S AND INTERVENORS' OPENING BRIEFS
___________________________________

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

OFFICE OF THE ATTORNEY GENERAL
900 East Main Street
Richmond, VA 23219
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Defendants Judd, Bowers
and Palmer

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
ARGUMENT ...................................................................................................................................1
I.

Plaintiff and Intervenors Have Failed to Show Causation or Redressability
Sufficient to Confer Standing. .................................................................................2

II.

Plaintiff and Intervenors Prejudicially Delayed Bringing Their Claims. ................6

III.

Plaintiff and Intervenors Have Failed to Show Irreparable Harm, That the Balance
of Equities Tips in Their Favor, or That the Public Interest is Served by
Disrupting the Election Process .............................................................................10

IV.

Plaintiff and Intervenors Have Failed to Show That They Would Certainly Prevail
on the Merits of Their Constitutional Challenge ...................................................12

CONCLUSION ..............................................................................................................................13

ii

TABLE OF AUTHORITIES
Cases
Abbot Labs. v. Gardner, 387 U.S. 136 (1967) ................................................................................ 7
Acierno v. New Castle Cnty., 40 F.3d 645 (3d Cir. 1994); ........................................................... 10
Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) ............................... 12
Calvary Christian Ctr. v. City of Fredericksburg, No. 3:11-cv-342, 2011 U.S. Dist. LEXIS
77489 (E.D. Va. July 18, 2011) .................................................................................................... 10
Constitution Party of Pa. v. Cortes, 433 Fed. Appx. 89 (3d Cir. May 19, 2011) ....................... 4, 5
Dobson v. Dunlap, 576 F. Supp. 2d 181 (D. Me. 2008) ................................................................. 9
EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)................................................... 6
Fishman v. Schaffer, 429 U.S. 1325 (1976) (Marshall, Circuit Justice) ......................................... 6
Fulani v. Hogsett, 917 F.2d 1028 (7th Cir. 1990)................................................................. 6, 9, 11
Herndon v. N.C. State Bd. of Elections, 710 F.2d 177 (4th Cir. 1983)........................................... 9
Hirschfeld v. Bd. of Elections, 984 F.2d 35 (2d Cir. 1993) .......................................................... 10
Interactive Media Entm't & Gaming Ass'n, No. 09-1301, 2011 U.S. Dist. LEXIS 23383
(D.N.J. Mar. 7, 2011) ................................................................................................................ 5
Kay v. Austin, 621 F.2d 809 (6th Cir. 1980) ............................................................................... 1, 9
Kloth v. Microsoft Corp., 444 F.3d 312 (4th Cir. 2006) ................................................................. 6
Lance v. Coffman, 549 U.S. 437 (2007) ......................................................................................... 1
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 3
Lux v. Judd, 651 F.3d 396 (4th Cir. 2011) ...................................................................................... 2
Lux v. Rodrigues, 131 S. Ct. 5 (2010) ....................................................................................... 2, 12
McCarthy v. Briscoe, 429 U.S. 1317 (1976) (Powell, Circuit Justice) ........................................... 6
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ............................................................................... 7
Muntaqim v. Coombe, 449 F.3d 371 (2d Cir. 2006) (en banc) (per curiam) .............................. 3, 5
Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75 (4th Cir. 1989) ............................. 11
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) ................................... 10, 11
Renne v. Geary, 501 U.S. 312 (1991) ............................................................................................. 3
Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) ........................................................................ 13
Storer v. Brown, 415 U.S. 724 (1974) ............................................................................................ 1
Texas v. United States, 523 U.S. 296 (1998) .................................................................................. 8
Winter v. NRDC, Inc., 555 U.S. 7 (2008) ........................................................................... 2, 10, 11

iii

Statutes
Va. Code Ann. § 24.2-521 .......................................................................................................... 2, 7
Va. Code Ann. § 24.2-545B.................................................................................................. 2, 8, 13
Other Authorities
Virginia State Board of Elections, Election Results: February 29, 2000 Republican Party
Presidential Primary Election,
http://www.sbe.virginia.gov/ElectionResults/2000/Feb_primary/Results-Pres-Prim-by-Dist.html
(last visited January 9, 2012) .......................................................................................................... 4
Virginia State Board of Elections, Official Results: Commonwealth of Virginia 2004 February
Democratic Presidential Primary, http://sbe.vipnet.org/feb2004/d_01.htm (last visited January
10, 2012). ........................................................................................................................................ 5
Virginia State Board of Elections, Official Results: Commonwealth of Virginia 2008 February
Republican Presidential Primary,
http://www.sbe.virginia.gov/cms/documents/ElectionResults/Feb12_RepublicanPrimary.pdf (last
visited January 9, 2012) .................................................................................................................. 4
Virginia State Board of Elections, Schedule of General Elections,
http://www.sbe.virginia.gov/cms/documents/CF/ReportCodes/2011_2015_5%20yr%20Election
%20Calendar.pdf (last visited January 9, 2012) ............................................................................ 9

iv

Charles Judd, Kimberly Bowers, and Don Palmer, by counsel, state as follows in
response to the Brief of plaintiff and the Brief of intervenors.
ARGUMENT
Although the Court's scheduling order called for briefing "on whether the Court should
grant a preliminary injunction and, if so, what the Court should order," (Doc. 13 at 2), the briefs
of plaintiff and intervenors do not discuss, much less meaningfully join issue on, several of the
factors they must satisfy to be awarded what they admit is "preliminary . . . mandatory injunctive
relief." (Doc. 1 at 7; Doc. 28 at 9). Instead, plaintiff and intervenors expend the bulk of their
efforts on the merits of their constitutional challenge to Virginia's eligible voter circulator
requirement, an issue that the court should conclude is academic in this case for four reasons.
First, they all lack standing to challenge the circulator requirement, having failed to submit the
statutorily required 10,000 valid signatures, a requirement the constitutionality of which they
cannot plausibly contest. See Storer v. Brown, 415 U.S. 724, 726-27 (1974) (upholding state law
requiring signatures from 5% of vote cast in previous general election as constitutional
restriction on ballot access); cf. Lance v. Coffman, 549 U.S. 437, 439, 442 (2007) (holding that
"[f]ederal courts must determine that they have jurisdiction before proceeding to the merits," that
standing is a jurisdictional prerequisite, and dismissing an election law challenge for lack of
standing). Second, they all are clearly subject to laches because they failed to mount a challenge
to the law until after the time for collecting signatures had past and the primary is practically
upon us. See Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (holding that a candidate for
President was "not entitled to [the] equitable relief" of having his name on the state's May 20th
presidential primary ballot "as a result of laches" where the candidate filed suit on March 31 after
"all the necessary preliminary work had been done for the paper ballots, voting machine strips,
and punch cards"). Third, they have not claimed, much less shown, that all four Winter factors
1

favor the grant of preliminary, mandatory injunctive relief. Winter v. NRDC, Inc., 555 U.S. 7, 20
(2008). Finally, even assuming that the Court were to conclude that any of them have standing
to assert a challenge to the eligible voter circulator requirement, that those claims are not barred
by laches, that the elements of irreparable harm, the balance of the equities, and the public
interest favor any of them, the Court still could not conclude that the challenge is virtually
certain to prevail, because both the Chief Justice, acting as Circuit Justice, and the Fourth Circuit
have concluded otherwise in a similar case. See Lux v. Rodrigues, 131 S. Ct. 5, 7 (2010); Lux v.
Judd, 651 F.3d 396, 404 (4th Cir. 2011); Case: 10-1997, Doc. 22.
I.

Plaintiff and Intervenors Have Failed to Show Causation or Redressability
Sufficient to Confer Standing.

Plaintiff and intervenors seek preliminary, mandatory injunctive relief -- they demand to
be placed on Virginia's presidential primary ballot. They claim that the eligible voter circulator
requirement violates their First Amendment rights of speech and association, and this entitles
them to the requested relief.

See Va. Code Ann. §§ 24.2-521; 24.2-545B.

While they

perfunctorily challenge the ten thousand signature requirement of Va. Code Ann. § 24.2-545B as
unconstitutional in Count II of their complaints, plaintiff and intervenors implicitly concede, by
failing to argue otherwise in their opening briefs, that the numeric challenge is without merit as
shown in Defendants' Memorandum in Opposition. See (Doc. 36 at 2-3). Thus, plaintiff and
intervenors are left contending that, having failed to abide by a valid prerequisite to their
appearing on the ballot, the Court nonetheless should entertain their challenge to a separate
prerequisite, which any of them could have challenged when they announced, and, having found
that requirement invalid, order that their names be placed on the ballot. The conclusion simply
does not follow.

2

Because the supposition that they would have obtained 10,000 valid signatures but for the
circulator restriction could be based on nothing more than speculation and surmise, it is not that
requirement that has injured them. In an Article III case and controversy sense, they have no
palpable injury fairly traceable to the circulator requirement. See, e.g., Muntaqim v. Coombe,
449 F.3d 371, 376 (2d Cir. 2006) (en banc) (per curiam) (holding that an inmate's "inability to
vote in New York arises from the fact that he was a resident of California, not because he was a
convicted felon subject to the application of New York Election Law," and thus that "he has
suffered no 'invasion of a legally protected interest'" as a result of his felon status, as "there is no
causal connection between New York Election Law . . . and [the inmate's] inability to vote in
New York, and a favorable decision of this Court on his claim that New York Election Law . . .
violates the VRA would do nothing to enfranchise him." (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)); cf. Renne v. Geary, 501 U.S. 312, 319 (1991) (noting that "there is
reason to doubt . . . that the injury alleged by [certain] voters can be redressed by a declaration of
[a state election law's] invalidity or an injunction against its enforcement" where "[a] separate
[state] statute, the constitutionality of which was not litigated in this case," may impose the same
requirement as the statute challenged. For "[o]verlapping enactments can be designed to further
differing state interests, and invalidation of one may not impugn the validity of another.").
Furthermore, neither intervenor Gingrich nor intervenor Santorum were injured by the
circulator requirement on the ground that it prohibits "otherwise qualified candidates for the
Office of President of the United States from circulating their own candidate petitions," as both
of them are vote eligible residents of the Commonwealth. See (Doc. 28 at 2-3, ¶¶ 7, 9, at 6, ¶ 32;
Doc. 38 at 3-4, ¶¶ 11, 13, at 7-8, ¶ 36). Of course, none of the intervenors have so much as
alleged an intent to circulate his own petitions. In sum, with respect to the plaintiff and all of the

3

intervenors, "there is simply no allegation in the . . . Complaint[s], other than conclusory
assertions, that the [voter eligibility circulator requirement] is responsible for the [petition
signature submission] difficulties," because none of them claims to have attempted or even
desired to employ circulators that did not meet Virginia's requirements or that any of the
signatures they submitted were struck for non-compliance with the circulator requirement. See
Constitution Party of Pa. v. Cortes, 433 Fed. Appx. 89, 93 (3d Cir. May 19, 2011) (noting that a
party's difficulty in finding candidates, rather than being "caused by the potential imposition of
fees," might rather have been caused "by a change in general public opinion, a change in the
effectiveness of recruitment strategies or party leadership, or any multitude of other factors"); see
(Doc. 1 at 1, ¶ 2; Doc. 28 at 1-2, ¶ 2, 30 at 2, ¶ 6; Doc. 38 at 2, ¶ 6).
Of course, the fact "that five of the seven nationally recognized candidates for [the
Republic presidential nomination] were excluded from the ballot," (Doc. 37 at 4), does not prove
that the voter eligible circulator requirement prevented their submitting 10,000 valid signatures,
especially when one considers that six candidates made the same ballot four years ago under the
same rules, see Virginia State Board of Elections, Official Results: Commonwealth of Virginia
2008 February Republican Presidential Primary, http://www.sbe.virginia.gov/cms/documents
/ElectionResults/Feb12_RepublicanPrimary.pdf (last visited January 9, 2012); and five did in
2000. See Virginia State Board of Elections, Election Results: February 29, 2000 Republican
Party

Presidential

Primary

Election,

http://www.sbe.virginia.gov/

ElectionResults/2000/Feb_primary/Results-Pres-Prim-by-Dist.html (last visited January 9,
2012). In 2004, nine candidates met the statutory requirements to appear on the Democratic
Presidential Primary Ballot, including five candidates (Sharpton, Lieberman, Kucinich,
Gephardt, and Larouche) who each received fewer than 4% of the votes in the primary. Virginia

4

State Board of Elections, Official Results:

Commonwealth of Virginia 2004 February

Democratic Presidential Primary, http://sbe.vipnet.org/feb2004/d_01.htm (last visited January
10, 2012). Furthermore, intervenor Gingrich has stated publicly that the cause of his failure to
submit 10,000 valid signatures was the fraudulent generation of 1,500 signatures by a resident
circulator. See (Doc. 36 Ex. A); Ex. A (reporting that intervenor Gingrich conceded that "his
campaign's failure to qualify for Virginia's primary ballot" "'was our fault'").
From this record it appears, or will appear, that it is just as likely that the actions of some
third party or the voluntary choices of the plaintiff and intervenors caused them not to submit
10,000 signatures, whether those acts or choices were the fraudulent acts of an eligible circulator,
the decision of Virginia's citizens to not sign a petition on the behalf of plaintiff and intervenors,
or the plaintiff's and intervenors' failure to commit resources to circulating petitions in the
Commonwealth. Therefore, the Court must conclude that plaintiff and intervenors have not
shown that their injury is fairly traceable to Virginia's circulator requirement.
Finally, there is no redressability and therefore no standing because a favorable ruling for
plaintiff and intervenors on the circulator requirement would not entitle them to the remedy of
having their names placed on the ballot. (Doc. 37 at 4; Doc. 39 at 4). This is so because their
entitlement to appear on the ballot is barred by the independent requirement to submit 10,000
valid signatures. See Muntaqim, 449 F.3d at 376; Interactive Media Entm't & Gaming Ass'n, No.
09-1301, 2011 U.S. Dist. LEXIS 23383, at *15-17 (D.N.J. Mar. 7, 2011). Both causation and
redressability are jurisdictional prerequisites to obtaining relief and, because they are not present,
the Court should not entertain the constitutional question. See Constitution Party of Pa., 433
Fed. Appx. at 93 n.1 (affirming dismissal of a constitutional challenge to ballot access
requirements for failure to show causation and noting that the failure to show redressability

5

requires the same result). Nor is this case like McCarthy v. Briscoe, 429 U.S. 1317 (1976)
(Powell, Circuit Justice), which historically has been limited to its remarkable facts.

See

Fishman v. Schaffer, 429 U.S. 1325, 1328 (1976) (Marshall, Circuit Justice) (distinguishing
McCarthy, which granted emergency injunctive relief, on the ground that McCarthy "presented
'no novel issue of constitutional law,'" there being "no question that Texas had clearly violated
the constitutional requirements for ballot access" under settled case law, but refusing relief in
that case because the constitutional issue there presented was "at best a close question").
II.

Plaintiff and Intervenors Prejudicially Delayed Bringing Their Claims.

The equitable defense of laches creates an independent bar to claims for injunctive relief
where it is shown that the "plaintiffs failed to pursue their injunctive claims with diligence and
that their failure prejudiced [the defendant]." Kloth v. Microsoft Corp., 444 F.3d 312, 325 (4th
Cir. 2006). A "lack of diligence" may be shown wherever "a plaintiff has unreasonably delayed
in pursuing his claim," EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 409 (4th Cir. 2005),
and a lack of diligence is not excused while plaintiff pursues an alternative avenue of relief.
Kloth, 444 F.3d at 325-26.
"In the context of elections, this means that any claim against a state electoral procedure
must be expressed expeditiously. As time passes, the state's interest in proceeding with the
election increases in importance as resources are committed and irrevocable decisions are made.
The candidate's . . . claims to be . . . a serious candidate . . . with a serious injury become less
credible by their having slept on [his or her] rights." Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th
Cir. 1990) (internal citation omitted). As in Fulani, the credibility of plaintiff's and intervenors'
claims suffer from their delay in raising them and their threat to the public interest. Plaintiff and
intervenors contend that an earlier assertion of their challenge to the circulator and numeric
requirements could not have been made, because they would have earlier been barred by the
6

doctrine of ripeness. (Doc. 37 at 4, 10-12; Doc. 39 at 4, 10-12). This argument is inconsistent
with plaintiff and intervenors theory of the case -- an abridgement of their First Amendment
rights of speech and association, which occurred, if at all, when they allegedly were forced to
forego employing circulators that did not meet the requirements of Va. Ann. Code § 24.2-521 or,
for purposes of their numeric requirement challenge to Va. Ann. Code § 24.2-545B, made efforts
to obtain more than the number of signatures they contend is constitutionally permissible. Also,
the argument is a non-serious application of ripeness doctrine.
"Analyzing ripeness is similar to determining whether a party has standing," see Miller v.
Brown, 462 F.3d 312, 319 (4th Cir. 2006), and also has a unique prudential prong in which
courts must "balance the fitness of the issues for judicial decision with the hardship to the parties
of withholding court consideration. A case is fit for judicial decision [under the prudential rules]
when the issues are purely legal and when the action in controversy is final and not dependent on
future uncertainties." Id.; see Abbot Labs. v. Gardner, 387 U.S. 136, 149 (1967). It is apparent
that plaintiff and intervenors could have asserted the same injury in fact to the rights to
disseminate information and associate for political purposes free of the circulator and numeric
requirements that they do now as soon as they learned of the challenged requirements. See, e.g.,
Abbott Labs., 387 U.S. at 153 ("Where the legal issue presented is fit for judicial resolution, and
where a regulation requires an immediate and significant change in the plaintiffs' conduct of their
affairs with serious penalties attached to noncompliance, access to the courts . . . must be
permitted."); Miller, 462 F.3d at 319 (holding that a pre-enforcement challenge to Virginia's
open primary laws as violating "plaintiffs' First Amendment rights to freely associate" was "fit
for judicial review" despite the law not being capable of being applied for two years because it
"present[ed] a purely legal question" and the hardships favored early resolution, as the "primary

7

election likely would be resolved before an action brought" after the law had been enforced by
the State Board of Elections "could reach final decision."). Unlike the cases relied upon by
plaintiff and intervenors, such as Texas v. United States, 523 U.S. 296, 300 (1998), the only
uncertainty was whether plaintiff and intervenors would "seek[] the nomination of [a] national
political party for the office of President of the United States" on Virginia's Republican
Presidential Primary ballot, Va. Code Ann. § 24.2-545B, and so be subject to the longestablished circulator and numeric requirements.

According to plaintiff and intervenors

complaints, these matters were decided, in all cases, more than four months prior to the deadline
for filing collected petition signatures, a process that could begin in July of 2011. See SBE-545.
(Doc. 1 at 4, ¶¶ 4, 19; Doc. 28 at 5, ¶¶ 22-24, 29-30; Doc. 30 at 7, ¶¶ 31, 34; Doc. 38 at 6, ¶¶ 2628, 33-34). Thus, plaintiff and intervenors possessed any standing that they would ever enjoy to
challenge the circulator and numeric requirements long before they were denied entry on the
ballot.
It is also apparent on the face of plaintiff's and intervenors' complaints that they
unreasonably delayed in asserting their challenges, instead choosing "to comply with Virginia's"
laws. (Doc. 37 at 12; Doc. 39 at 12). Although the circulator and numeric requirements have
been in place for years, and intervenor Gingrich, intervenor Santorum, intervenor Huntsman, and
plaintiff Perry have been official candidates for the Republican nomination since May 16, June 6,
June 28, and August 15, 2011, respectively, the candidates admit that they delayed to challenge
until after a determination that they were ineligible to be placed on the ballot had been made and
publicly announced. (Doc. 1 at 4, ¶¶ 4, 19; Doc. 28 at 5, ¶¶ 22-24, 29-30; Doc. 30 at 7, ¶¶ 31,
34; Doc. 38 at 6, ¶¶ 26-28, 33-34). Plaintiff's challenge, filed December 27, 2011, thus came less
than two weeks before completion of the ballot printing preparations, while intervenors'

8

challenge did not come until January 4, 2012, five days before the last practical day for printing
ballots, the preparation for which will be all but complete and printing begun by the time this
matter is heard in court.1 See Kay, 621 F.2d at 813 (holding that a claim for entitlement to be on
a ballot was barred by laches when the candidate filed suit after "all the necessary preliminary
work had been done"); Dobson v. Dunlap, 576 F. Supp. 2d 181, 187-88 (D. Me. 2008) (denying
a motion for preliminary injunction to place a candidate's name on a ballot because the challenge
to the nomination petition process was barred by laches when presented nearly two months
before the election, after "the printer had already begun the ballot printing process"). (Doc. 22
at 2). Having had months to conclude that the circulator and numeric requirements violate their
rights, plaintiff and intervenors nonetheless waited until they had received an unfavorable
conclusion on their application, and until the primary was less than two months away, to assert
their claims.

See Virginia State Board of Elections, Schedule of General Elections,

http://www.sbe.virginia.gov/cms/documents/CF/ReportCodes/2011_2015_5%20yr%20Election
%20Calendar.pdf (last visited January 9, 2012). Thus, to avoid "encourag[ing] parties who
could raise a claim to lay by and gamble upon receiving a favorable decision . . . and then, upon
[receiving an unfavorable one], seek to undo the . . . results in a court action," Herndon v. N.C.
State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983), these untimely claims for extraordinary
relief must now be denied, as the "resources [have been] committed and irrevocable decisions
[have been] made." Fulani, 917 F.2d at 1031.

1

Printing of ballots had already occurred most of Virginia's 134 electoral jurisdictions prior to entry of the Court's
orders of January 9 and 10, 2012. (Doc. 46; Doc. 54).

9

III.

Plaintiff and Intervenors Have Failed to Show Irreparable Harm, That the
Balance of Equities Tips in Their Favor, or That the Public Interest is Served
by Disrupting the Election Process

Although the "extraordinary remedy" of a preliminary injunction "is never awarded as of
right," Winter, 555 U.S. at 24, for the court to not abuse its discretion in awarding preliminary
relief, plaintiff and intervenors "must establish" that they are " likely to suffer irreparable harm in
the absence of preliminary relief, . . . that the balance of equities tips in [their] favor, and . . . that
an injunction is in the public interest.'" Real Truth About Obama, Inc. v. FEC, 575 F.3d 342,
346 (4th Cir. 2009) (quoting Winter, 555 U.S. at 20). And, as previously shown, "[a] party
seeking a mandatory preliminary injunction that will alter the status quo bears a particularly
heavy burden in demonstrating its necessity." Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d
Cir. 1994); 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) (same).
Plaintiff and intervenors have not shown that failure to hold the circulator requirement
unconstitutional is nearly certain to cause them to suffer irreparable harm, because they admit
that they complied with that requirement, are no longer circulating petitions, and thus could only
be harmed by the denial to place their names on the ballot. To the extent that this harm would be
irreparable and would result from a failure to grant preliminary relief, it does so only because of
plaintiff's and intervenors' inexcusable delay in bringing suit. And a party's delay will not be
credited to its balance sheet for purposes of finding an irreparable harm. Hirschfeld v. Bd. of
Elections, 984 F.2d 35, 39 (2d Cir. 1993). Furthermore, the circulator requirement is not the
cause of plaintiff's and intervenors' harm of not being placed on the ballot, as that results from
their failure to satisfy the constitutionally valid numeric requirement.

Thus, plaintiff and

intervenors have not and cannot satisfy the requirement that they demonstrate a likelihood of

10

irreparable harm flowing from the court's failure to hold the circulator requirement
unconstitutional.
The balance of the equities and the public interest favor denying this request for
preliminary, mandatory injunctive relief. "'In exercising their sound discretion, courts of equity
should pay particular regard for the public consequences in employing the extraordinary remedy
of injunction.'" Real Truth About Obama, 575 F.3d at 347 (4th Cir. 2009) (quoting Winter, 555
U.S. at 24). And, in considering the equities and public interest, it bears reemphasizing that it is
plaintiff and intervenors who have delayed bringing this suit. See Fishman, 429 U.S. at 1330
(denying a motion for injunctive relief from a district court's decision in part on the ground that
"applicants delayed unnecessarily in commencing this suit" until after the printing and
distribution of ballots had begun). The fact of delay in the election context increases the harm to
the state defendants and the public "as resources are committed and irrevocable decisions are
made." Fulani, 917 F.2d at 1031. Conversely, "[i]n determining the weight to be accorded to
the [plaintiffs'] claims," courts give less credence to claims of harm where the suit was belatedly
pursued under long-established law. See Respect Maine PAC v. McKee, 622 F.3d 13, 16 (1st Cir.
2010) (noting that "the case law on which [plaintiffs] rely is not new"); Quince Orchard Valley
Citizens Ass'n v. Hodel, 872 F.2d 75, 79-80 (4th Cir. 1989) (that a party seeking an injunction
delayed doing so is "quite relevant to balancing the parties' potential harms."). As defendants
will demonstrate at the January 13, 2012 hearing, granting plaintiff and intervenors this relief at
the eleventh hour would lead to voter confusion, increased expense, disruption of the election
processes, and violation of state and federal statutes as well as of this Court's consent decree.
See (Case 3:08-cv-00709-RLW Doc. 75). As this Court recognized, "local electoral officials
must mail absentee ballots to overseas voters who request them no later than . . . January 21,

11

2012." (Doc. 54 at 3). As the 13th itself is a state holiday, the 14th and 15th are a Saturday and
Sunday, the 16th is a state and federal holiday, and the 20th is a Saturday, a decision mandating
that all 134 electoral districts add plaintiff's and intervenors to the ballot would have to be
completed in four days, the 17th through the 20th, to avoid violating state and federal law.
Furthermore, such an effort would require the expenditure of vast resources and create
significant redundancies, which is bound to breed voter confusion and delay. In view of the
significant harms to the public interest that relief portends, the Court should decline to exercise
its equitable discretion in favor of dilatory candidates.2
IV.

Plaintiff and Intervenors Have Failed to Show That They Would Certainly
Prevail on the Merits of Their Constitutional Challenge

Despite plaintiff's and intervenors' inattention to the point, whether or not they are
entitled to preliminary relief is not based on whether this Court would be disposed to rule on the
merits that their constitutional contentions are correct as a matter of law. It must be objectively
demonstrated to a near certainty that plaintiff and intervenors will prevail at every level. That
standard cannot be met here because this case raises a "novel issue of constitutional law," see
Fishman, 429 U.S. at 1328 (distinguishing McCarthy, 429 U.S. at 1320), because the question of
the validity of a state residency requirement has produced a circuit split and been expressly
reserved by the Supreme Court. Lux, 131 S. Ct. at 7 (recognizing the existence of a circuit split
on the residency requirement for petition circulators and that the Supreme Court had reserved the
issue). Similarly, the Supreme Court has, for analytical purposes, assumed the validity of voter
eligibility requirements in Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 197 (1999).
Issues that have been expressly reserved for decision, such as a state residency requirement for

2

It also harms Governor Romney and Congressman Paul who committed sufficient time, money, and other
resources to meet the statutory requirements. Having incurred the necessary costs, the complying candidates are
harmed if this Court exempts the noncomplying candidates from incurring those same costs.

12

petition circulators, or been assumed valid by the Supreme Court, can never be shown to be
almost certainly invalid. At best for plaintiff and intervenors, the question is simply unresolved
at the preliminary stage.
Finally, to the extent the Court entertains arguments contained in amended complaints
not contemplated by the briefing schedule, it should reject plaintiff's and intervenors' contention
that "the requirement" that 10,000 signatures be submitted, per Va. Code Ann. § 24.2-545B, is
not a really a requirement at all.

This argument is contrary to settled Virginia law as

demonstrated in Defendants' Memorandum in Opposition. See (Doc. 36 at 17-22). And, in any
case, the arguments of subsections I, II, and III would still apply to bar the Court from granting
the requested relief under that theory. See Siegel v. LePore, 234 F.3d 1163, 1176-78 (11th Cir.
2000).
CONCLUSION
Because plaintiff's and intervenors' claims are barred by the lack of standing,
unreasonable, prejudicial delay, and a failure to satisfy each of the four requirements for
preliminary injunctive relief, the Motion for Preliminary Injunction must be denied.
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
13

Kenneth T. Cuccinelli, II
Attorney General of Virginia
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]

14

CERTIFICATE OF SERVICE
I hereby certify that on the 11th 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, VA 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 The
Honorable Newt Gingrich
Stefan C. Passantino, Esquire (pro hac vice)
J. Randolph Evans, Esquire (pro hac vice to
be filed)
Benjamin P. Keane, Esquire (pro hac vice)
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor The
Honorable 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)
Arent Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Tel: [phone]
Fax: [phone]
Counsel for Plaintiff-Intervenor The
Honorable 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

15

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

Rebecca Kim Glenberg, Esquire
ACLU of Virginia
530 E Main St
Suite 310
Richmond, VA 23219
[phone]
Fax: [phone]
Email: [e-mail]
Counsel for American Civil Liberties Union
of Virginia, Inc.

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.
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.
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

16