Perry v. Judd et al

Filing 8

Memorandum in Support re 7 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Rick Perry. (Mullins, Maurice)

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

Memorandum in Support of Emergency Motion
For Temporary Restraining Order and Preliminary Injunction
Introduction
Plaintiff, The Honorable Rick Perry, submits the following brief in support of his motion for
a preliminary injunction.
Plaintiff seeks a preliminary injunction to enjoin Defendants, members of the Virginia State
Board of Elections (the "Board") and the Chairman of the Republican Party of Virginia, from
enforcing the state-residency requirement for petition circulators found in the State Board of
Elections “Petition of Qualified Voters for Presidential Primary,” as authorized by Virginia Code
§ 24.2-545, which requires all petition circulators to be eligible to register to vote for the
candidate for which they circulate a petition – on the grounds that it violates Plaintiff’s freedoms
of speech and association protected by the First and Fourteenth Amendments to the United States
Constitution.
Additionally, Plaintiff seeks a preliminary injunction to enjoin the Defendants from

enforcing Virginia Code § 24.2-545 which requires each presidential candidate to obtain 10,000
qualified voter signatures from people who state they intend to vote in the Republican Party
primary election on the grounds that it violates Plaintiff’s freedom of speech and association
protected under the First and Fourteenth Amendments to the United States Constitution.
Plaintiff also seeks a mandatory injunction compelling Defendants to certify Plaintiff as a
candidate on the March 6, 2012 Republican Party primary ballot.
Because of the overly burdensome and unconstitutional requirements of § 24.2-545, Plaintiff
was unable to obtain a sufficient number of signatures from qualified voters to qualify for the
Republican Party presidential primary ballot in Virginia.
If either the state-residency requirement for petition circulators or the threshold amount of
signators is constitutionally unenforceable, Plaintiff should be certified for the March 6, 2012
Republican Party primary ballot. The statutory scheme prohibited Plaintiff from engaging in
other efforts to obtain the necessary petition signatures for certification.
Having no adequate remedy of law, a preliminary injunction is necessary because Plaintiff
seeks to have his name placed on the March 6, 2012 Republican Party primary election ballot, to
campaign for the office of President of the United States and engage in constitutionally protected
political speech and assembly. Furthermore, if Plaintiff is to have any meaningful opportunity to
exercise his right to seek office and campaign for the election, a preliminary and/or permanent
injunction must issue soon because the deadline to print ballots is in the next two or three weeks.
Facts
Plaintiff, The Honorable Rick Perry, is a resident and the current Governor of the State of
Texas. See Complaint ¶ 6.
Plaintiff is a candidate for the office of President of the United States and has filed a notice

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of his candidacy with the Federal Election Commission of his candidacy. Additionally, Plaintiff
satisfies all the requirements of Article II, Section 1, Clause 5 of the United States Constitution
and is otherwise eligible and qualified to serve as President of the United States. See Complaint
¶¶ 15-17.
To appear on the Republican Party primary ballot in Virginia, a candidate must complete a
Consent/Declaration Form and file petitions with the Board 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.

VA. CODE ANN. § 24.2-545 B.

Additionally, based upon the official form prescribed by the Board, the petition signatures must
be from registered voters, and collected after July 1, 2011 by a registered voter or someone
eligible to vote in Virginia who signs and in the petition in the presence of a notary (stateresidency requirement).
Defendants Charles Judd, Kimberly Bowers, and Don Palmer are members of the Board and
are sued in their official capacities. The Board is responsible for supervising and coordinating
the work of county and city electoral boards and has the power to issue rules and regulations to
implement the election law. VA. CODE ANN. § 24.2-103. A candidate for Office of the President
of the United States files the Consent/Declaration Form and petition signatures with the Board,
and the Board determines the placement and order of names on the primary ballot. VA. CODE
ANN. § 24.2- 545 B-C.
Defendant Pat Mullins, in his official capacity Chairman of the Republican Party of
Virginia, is responsible for certifying to the Board all candidates who meet the statutory petition
signature scheme. VA. CODE ANN. § 24.2-545 B.

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Plaintiff declared himself a candidate for the Office of President of the United States on
August 13, 2011 and on August 15, 2011, the next business day after his declaration, filed the
necessary paperwork with the Federal Elections Commission to allow him to publicly campaign
for the office.
On October 31, 2011, Plaintiff signed and affirmed, in the presence of a notary, his
Declaration of Candidacy for the Commonwealth of Virginia and on December 22, 2011,
Plaintiff submitted to the Board over 6,000 petition signatures from qualified Virginia voters.
Despite the fact that Plaintiff could not qualify for the ballot in any other manner than by
petition signatures, Defendant Mullins made a preliminary determination and publicly
announced that Plaintiff had not submitted enough petition signatures and would not be certified
for placement of his name on the presidential primary ballot.
Argument
Plaintiff seeks a preliminary injunction. A court may issue a preliminary injunction if it
determines that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips
in the plaintiff's favor, and (4) an injunction is in the public interest. W. Va. Assoc. of Club
Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (applying
Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008)).
I. Plaintiff Has Likely Success on the Merits.
A. The First Amendment applies to Plaintiff’s petition circulation activities.
The First Amendment states that “Congress shall make no law . . . abridging the freedom of
speech . . . or the right of the people peaceably to assemble.”1 U.S. CONST. AMEND. I. Virginia's

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The First Amendment is applicable to the states pursuant to the Fourteenth Amendment to the United States
Constitution. Thornhill v. Alabama, 310 U.S. 88, 95 (1940).

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state-residency requirement abridges the freedoms of speech and association in violation of this
mandate.
Virginia's state-residency requirement abridges Plaintiff’s speech and associational rights in
at least four ways. First, it impacts his ability to disseminate his political views by restricting
the number of message carriers who can gather signatures on his behalf, and in turn, the size of
the audience that can be reached. See Buckley v. Am. Constitutional Law Found., Inc.
(“ACLF”), 525 U.S. 182, 194-95 (1999) (recognizing burden imposed by Colorado law that
restricted the number of petition circulators who could disseminate plaintiffs' message, and
therefore, the size of the audience that could be reached). Second, it prevents Plaintiff from
choosing what he believes to be the most effective means of conveying his message. See Meyer
v. Grant, 486 U.S. 414, 424 (1988) (First Amendment protects person's right to “select what [he]
believe[s] to be the most effective means” for advocating his cause). Third, it restricts Plaintiff’s
ability to associate in a meaningful way with individuals that sign his petition for the purpose of
eliciting political change. See id. at 421-22 (First Amendment protects right to advocate for
political change). Finally, it impacts his ability to gain access to the ballot, and therefore, his
ability to make his candidacy the subject of nation-wide discussion. See id. at 423 (recognizing
burden imposed by Colorado law that limited plaintiffs' ability to make their ballot proposal
“the focus of statewide discussion”).
Thus, Virginia's state-residency requirement implicates Plaintiff’s freedoms of speech and
association and is subject to First Amendment review.
B. The state-residency requirement is subject to strict scrutiny because it imposes
severe burdens on Plaintiff’s freedoms of speech and association.
The Supreme Court has uniformly held that laws that severely burden speech and
association protected by the First Amendment must be narrowly tailored to serve a compelling

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governmental interest (“strict scrutiny”). Wash. State Grange v. Wash. State Republican Party,
128 S. Ct. 1184, 1191 (2008); Clingnzan v. Beaver, 544 U.S. 581, 586 (2005); Cal. Democratic
Party v. Jones, 530 U.S. 567, 582 (2000); ACLF, 525 U.S. at 192 n.12; Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Virginia's state-residency requirement is subject to strict scrutiny because it imposes a severe
burden on Plaintiff’s' freedoms of speech and association.2
In Meyer v. Grant, the Supreme Court explained that Colorado's ban on paid petition
circulators burdened proponents’ speech and associational rights by significantly reducing the
size of the audience that could be reached, and by making it less likely that the proponents of a
ballot initiative could qualify their measure for the ballot and thus make their initiative the focus
of statewide attention. 486 U.S. at 423. In ACFL, the Court echoed Meyer in recognizing the
heavy burden imposed by a law that permitted only registered Colorado voters to circulate
petitions because it significantly limited the number of people who could spread plaintiffs’
political message and, necessarily, had the effect of diminishing the size of the audience that
could be reached. Id. at 194-95. In both Meyer and ACLF, the Court found that the law at issue
“imposed a burden on political expression that the State … failed to justify.” Meyer, 486 U.S. at
428; accord ACLF, 525 U.S. at 195.
Numerous courts have applied Meyer and ACLF and have concluded that laws imposing
state-residency requirements on petition circulators impose severe burdens on the freedoms of
speech and association protected by the First Amendment.
For example, in Krislov v. Rednour, the Seventh Circuit applied strict scrutiny after
concluding that a state law that required petition circulators to be residents of the same

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Laws imposing lesser burdens are scrutinized under a less demanding standard. Burdick, 504 U.S. at 434; see also
Doe v. Reed, No. 09-559, slip op. at 6-7 (S. Ct. 2010) (applying “exacting scrutiny” to mandatory disclosure statute).

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congressional district for which the candidate was seeking office imposed a severe burden on
protected speech and association.

226 F.3d 851, 856, 859-62 (7th Cir. 2000). The court

explained that the restriction at issue imposed a severe burden by inhibiting the right to ballot
access, limiting the candidates’ ability to associate with a class of circulators, limiting the
candidates’ ability to choose the most effective means of communication, and reducing the
candidates’ ability to disseminate a political message to a wider audience. Id. at 860.
Krislov held that the district-residency requirement imposed a severe burden because it
excluded millions of potential petition circulators, thereby reducing the number of individuals
capable of disseminating the candidates’ message and the potential audience that could be
reached. Id. at 860-62; see also Yes on Tenn Limits, Inc. v. Savage, 550 F.3d 1023, 1028 (10th
Cir. 2008) (applying strict scrutiny because law burdened core political speech); Nader v.
Blackwell, 545 F.3d 459, 475, 478 (6th Cir. 2008) (applying strict scrutiny because law severely
burdened political speech); Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008) (same);
Chandler v. City of Arvada, 292 F.3d 1236, 1241, 1243 (10th Cir. 2002) (applying strict
scrutiny because law burdened core political speech); Lerman v. Bd. of Election in the City of
New York, 232 F.3d 135, 149 (2d Cir. 2000) (applying strict scrutiny because law severely
burdened political speech and association); Bogaert v. Land, 572 F. Supp. 2d 883, 902 (W.D.
Mich. 2008) (applying strict scrutiny); Frami v. Ponto, 255 F. Supp. 2d 962, 968 (W.D. Wis.
2003) (same); Morrill v. Weaver, 224 F. Supp. 2d 882, 900 (ED. Pa. 2002) (same). But see
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (state residency
requirement did not impose severe burden).
The burden that a particular regulation imposes is not lessened just because the regulation
does not foreclose other options. In other words, the fact that a law burdens protected speech

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and association, but leaves people “free” to pursue other “‘more burdensome’ avenues of
communication, does not relieve its burden on First Amendment expression.” Mever, 486 U.S.
at 424; see also ACLF, 525 U.S. at 195 (observing, in the context of Colorado’s requirement that
petition circulators be registered voters, that “the ease with which qualified voters may register to
vote…does not lift the burden on speech at petition circulation time”). The state-residency
requirement deprives Plaintiff of the opportunity to choose what he believes to be the most
effective method of soliciting support for his candidacy. The state-residency requirement is
particularly burdensome as applied to Plaintiff because it prevents him from personally soliciting
signatures for his own candidacy. Foreclosing even a single circulator, as was the case here, can
mean the difference between success and failure in obtaining the required number of signatures.
See Lerman, 232 F.3d at 147 (burden imposed on minor political candidates “can be particularly
severe”); Krislov, 226 F.3d at 862 (“To the extent the [statute] prevents candidates from using
the people they consider to be the best means of carrying their message to the public, it places a
substantial burden on the candidates’ ability to convey their political ideas, even if it only
restricts the candidate from using a few circulators.” (emphasis added)).
Here, the state-residency requirement had the effect of preventing Plaintiff from pursuing
what he believed was the most effective means of advancing his cause.
In sum, Virginia's district-residency requirement severely burdens Plaintiff’s freedoms of
speech and association and is therefore subject to strict scrutiny.
C. The state-residency requirement is not narrowly tailored to meet any
compelling government interest.
When a state regulation severely burdens First Amendment rights, the burden is on the
government to prove that the restriction is narrowly tailored to serve a compelling government
interest. Citizens United v. FEC, 130 S. Ct. 876, 898 (2010); see also Meyer, 486 T.J.S. at 428

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(law at issue “imposed a burden on political expression that the State . . . failed to justify”);
ACLF, 525 U.S. at 195 (same) (quoting Meyer). The burden is on the government even at the
preliminary injunction stage because “the burdens at the preliminary injunction stage track the
burdens at trial.” Gonzales V. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
429 (2006) (observing that in Ashcroft v. ACLU, 542 U.S. 656, 666 (2004), the Court
appropriately granted a preliminary injunction “where the Government had failed to show a
likelihood of success under the compelling interest test” (emphasis added)).
To satisfy its burden, a state must provide more than speculative, categorical answers. See
Gonzales, 546 U.S. at 430-31 (strict scrutiny is not satisfied by a “categorical approach,” but
rather, requires a case-by-case determination of the question). In other words, the government
“must do more than simply posit the existence of the disease sought to be cured. It must
demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in
fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 664 (1994) (citation and internal quotation marks omitted); see also Meyer, 486 U.S. at
426 (refusing to accept state’s bald argument that paid circulators might be more tempted to
cheat than volunteer circulators where the state offered “[n]o evidence…to support that
speculation”).
Defendants cannot meet this burden because there is simply no legitimate state interest to be
protected by prohibiting either out-of-state or non-registered voter petition circulators.
Therefore, Plaintiffs have shown likely success on the merits.
D. Finally, there is no legitimate state interest in requiring 10,000 individual qualified
voters sign a petition for a candidate and that 400 signatures come from each
congressional district.
The required amount of signatures on a petition to be a party’s candidate for the office of

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President of the United States is simply unreasonably burdensome3 and is not narrowly tailored
to meet a compelling governmental interest. (See ¶ I. B. supra and cases cited therein). The
requirements in Virginia’s statute are substantially similar to the ballot access requirements that
were in place in New York prior to New York’s statute being held unconstitutional in
Rockefeller v Powers, 78 F.3d 44 (2d Cir 1999).
As the United Stated Court of Appeals for the Second Circuit noted in Rockefeller, supra:
With regard to the question of the substantiality of the burden placed on
candidates seeking access to the primary ballot, the district court found that
candidates without the support of the state Republican leadership were
substantially burdened by the combination of (i) the requirement that a slate of
delegates collect signatures in each district amounting to 5% or 1250
registered Republicans, whichever is less; (ii) the requirement that the
collection of signatures must occur in a period of 37 days, during which there
are several important holidays, inclement weather, school and family
vacations, and short periods of daylight; (iii) a rule limiting a voter from
signing petitions for more than one candidate, thus reducing the total pool
available to those collecting signatures; (iv) a host of rules defining what is a
valid signature, including rules as to the qualification of witnesses to signings
and inclusion of the election or Assembly district numbers of signers; and (v)
other highly technical requirements that concern the presentation of petitions
containing the signatures to election officials. We agree that this combination
of New York requirements severely hampers candidates in contacting a
sufficient number of registered Republicans and in collecting, legally
documenting, and validly presenting their signatures. Indeed, as the district
court found, at least 140% of the requisite 5/1250 % signatures usually must
be collected to survive hypertechnical challenges and to succeed in getting a
delegate slate on the ballot. (The Powers affidavit suggests that signatures of
140% of the required number is too little.)
With regard to justification for the substantial burdens on candidates, the
district court noted that New York ballot access rules are far more burdensome
than those adopted by virtually every other state. Indeed, the 5/1250 %
requirement is itself onerous in comparison with other states even without the
very technical rules concerning the validation and presentation of the
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As of this date, five of seven of the nationally campaigning candidates for the Republican Party nominee for office
of the President of the United States did not qualify to be on the Virginia Republican Primary Ballot. In 2008,
119,034 people cast votes for the office of President in the Republican Party Primary. Requiring multiple candidates
to each obtain 10,000 signatures is facially unrealistic and unduly burdensome.

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signatures that require as a practical matter the collection of at least 140% of
the requisite number of signatures. The court further found that the rules as to
the qualification of witnesses to signing, listing of election or Assembly district
numbers of signers, and other technical requirements serve no legitimate
governmental purposes. Moreover, it concluded that the state’s acknowledged
interest in seeing that candidates on the ballot have substantial public support
does not justify the 5/1250 % rule. Indeed, New York provides an option to
political parties providing for the collection of the least of 0.5% or 1,000
signatures in each district as a fully permissible alternative scheme. The district
court noted that this alternative scheme by its very existence demonstrates that
the 5/1250 % requirement is unnecessary to satisfy the New York's interest in
seeing that no candidate be on the ballot without substantial public support. We
agree with the district court.”
The Virginia ballot access statute is even more burdensome than New York’s in that the
shear number of required signatures is unjustifiably burdensome. For this reason alone, Virginia
Code § 24.2-545 should be held unconstitutional.
The mandatory signature requirement, in combination with the petition circulator
requirements, renders the entire statutory scheme constitutionally impermissible.
II. Absent a Preliminary Injunction, Plaintiff Will Suffer Irreparable Harm.
“[L]oss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Newsom ex rel. Newsom v. Albemarle County Sch. Bd., 354
F.3d 249, 261 (4th Cir. 2003) (internal quotation marks omitted) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)). Furthermore, the Fourth Circuit recognizes that “in the context of an
alleged violation of First Amendment rights, a plaintiffs claimed irreparable harm is
‘inseparably linked’ to the likelihood of success on the merits of plaintiffs First Amendment
claim.” Musgrave, 553 F.3d at 298 (quoting W. Va. Assoc. of Club Owners & Fraternal Servs.,
hic. v. Musgrave, 512 F. Supp. 2d 424, 429 (S.D. W. Va. 2007)). As set forth above, the
Virginia ballot access requirements unconstitutionally burdens Plaintiff’s freedoms of speech
and association. Thus, Plaintiff has established irreparable harm.

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Plaintiff’s injuries are particularly acute because the Virginia ballot access requirements
have, as applied here, prevented Plaintiff from qualifying for the ballot. If Plaintiff does not
appear on the ballot, Plaintiff will have forever lose the ability to obtain the convention
delegates from the Commonwealth of Virginia in his bid to be the Republican Party nominee
for Office of the President of the United States in the 2012 election. Thus, in the absence of a
preliminary injunction, Plaintiff will suffer irreparable harm.
III. The Balance of Hardships Favors Plaintiffs.
The third prerequisite to the grant of a preliminary injunction is that the balance of the
equities “tips” in favor of the plaintiffs, meaning that the burden imposed on the plaintiffs if
a preliminary injunction is not granted outweighs the burden that granting a preliminary
injunction would impose on the defendants. Winter, 129 S. Ct. at 374, 378. In another First
Amendment case, the Fourth Circuit has held that “[w]ith respect to the harm that would
befall if an injunction were put in place, [a governmental agency] is in no way harmed by
issuance of a preliminary injunction which prevents it from enforcing a regulation, which . .
. is likely to be found unconstitutional.” Newsom, 354 F.3d at 261.
Similarly, here, the Commonwealth will not be harmed by the issuance of an injunction
against the enforcement of the state-residency requirement.

Indeed, the only harm the

Commonwealth will suffer is in being restrained from maintaining a law that is likely to be
found unconstitutional. Plaintiffs, on the other hand, are likely to suffer irreparable injury
because of his “loss of First Amendment freedoms.” The balance of the equities therefore tips
decidedly in their favor.
IV. The Public Interest Favors an Injunction.
The final prerequisite to the grant of a preliminary injunction is that it serve the public

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interest. In another First Amendment case, the Fourth Circuit has held that “[s]urely, upholding
constitutional rights serves the public interest.” Newsom, 354 F.3d at 261. Because Plaintiff
has demonstrated a likelihood of success on the merits of their claim, granting a preliminary
injunction here will have the effect of “upholding constitutional rights.”

Granting the

injunction therefore serves the public interest.
Conclusion
For the foregoing reasons, this Court should grant Plaintiff’s emergency motion for a
temporary restraining order and preliminary injunction and:
1. Enjoin Defendants from enforcing the state-residency requirement for petition

circulators found in the State Board of Elections “Petition of Qualified Voters for Presidential
Primary, as authorized by Virginia Code § 24.2-545;
2. Order the Virginia State Board of Elections to not conduct their drawing for placement

of candidate names on the March 6, 2012 primary ballots, nor print and distribute without
Plaintiff’s name on them; and
3. Order the Virginia State Board of Elections to place the Plaintiff on the Republican

Primary Ballot for the office of the President of the United States.

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Respectfully Submitted,
THE HONORABLE RICK PERRY
____
/s/ _________________ ___ _
M. F. Connell Mullins, Jr. (VSB No. 47213)
Email: [e-mail]
Hugh M. Fain, III (VSB No. 26494)
Email: [e-mail]
Edward Everett Bagnell, Jr. (VSB No. 74647)
Email: [e-mail]
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
Joseph M. Nixon (Pro hac vice application pending)
Email: [e-mail]
James E. (“Trey”) Trainor, III (Pro hac vice to be filed)
Martin D. Beirne (Pro hac vice application pending)
BEIRNE, MAYNARD & PARSONS, L.L.P.
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

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CERTIFICATE OF SERVICE
I hereby certify that on December 28, 2011, 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.
I have also arranged for hand service of the foregoing document on the following
Defendants, who have yet to make an appearance in this case:
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.

__________________/s/_______________
M. F. Connell Mullins, Jr. (VSB # 47213)
Email: [e-mail]
Attorney for The Honorable Rick Perry
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
P.O. Box 1555
Richmond, Virginia 23218-1555
Telephone: [phone]
Facsimile: [phone]

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