Perry v. Judd et al

Filing 87

ANSWER to 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 RICK PERRY
Plaintiff,
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 PLAINTIFFS' FIRST AMENDED COMPLAINT
Pursuant to Fed. R. Civ. P. 15(a)(3), Charles Judd, Kimberly Bowers and Don Palmer,
members of the Virginia State Board of Elections and defendants herein, in their official
capacities, by counsel, submit their Answer to the First Amended Complaint for Declaratory and
Injunctive Relief ("Amended Complaint") filed by plaintiff and state as follows:
1.

Defendants admit the allegations in paragraph 1 of the Amended Complaint.

2.

Defendants admit that the Board has developed, adopted, and implemented form

SBE-545, as authorized and directed by law. Defendants deny all other allegations of paragraph
2 of the Amended Complaint.
3.

With respect to the allegations contained in paragraph 3 of the Amended

Complaint, defendants admit that the Board has implemented Virginia's ballot access
requirements, as authorized by law. Defendants deny all other the allegations contained in
paragraph 3 of the Amended Complaint.
4.

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

Complaint, defendants are without sufficient information and belief to admit the allegations, and
therefore, the same are denied.

5.

With respect to the allegations contained in paragraph 5 of the Amended

Complaint, defendants admit that defendant Mullins, as Republican Party of Virginia Chairman,
did not certify Plaintiff for the Republican Presidential Primary ballot because Plaintiff failed to
submit the number of petition signatures required by law. Defendants deny all other allegations
contained in paragraph 5 of the Amended Complaint.
6.

Defendants admit that Plaintiff did not submit the requisite number of petition

signatures. Defendants deny all other allegations in paragraph 6 of the Amended Complaint.
7.

Defendants deny the allegations contained in paragraph 7 of the Amended

Complaint.
8.

With respect to the allegations contained in paragraph 8 of the Amended

Complaint, defendants admit that plaintiff "seeks access to the March 6, 2012 Republican Party
primary ballot." Defendants aver that the deadline for printing absentee ballots has now passed,
that at least some of the absentee ballots have been mailed, and that all ballots have been, or are
in the process of being, printed for the primary.

Defendants also aver that all necessary

provisions of SBE-545 have been precleared. Defendants deny all other allegations contained in
paragraph 8 of the Amended Complaint.
9.

With respect to the allegations in paragraph 9 of the Amended Complaint,

defendants admit that there is federal question jurisdiction, but deny that there is jurisdiction
under the Voting Rights Act of 1965 as amended.
10.

Defendants admit the allegations contained in paragraph 10 of the Amended

Complaint.
11.

Defendants deny that Plaintiff's allegations are sufficiently material to warrant

convening a three-judge court.

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12.

Defendants admit the allegations contained in paragraph 12 of the Amended

Complaint.
13.

Defendants admit the allegations contained in paragraph 13 of the Amended

Complaint.
14.

Defendants admit the allegations contained in paragraph 14 of the Amended

Complaint. Defendants also aver that intervenor Huntsman is no longer a candidate for the
Office of the President of the United States.
15.

Defendants admit the allegations contained in paragraph 15 of the Amended

Complaint.
16.

Defendants aver that the code sections referenced in paragraph 16 of the

Amended Complaint speak for themselves.
17.

Defendants aver that the code sections referenced in paragraph 17 of the

Amended Complaint speak for themselves.
18.

Defendants aver that the code section referenced in paragraph 18 of the Amended

Complaint speaks for itself.
19.

Defendants aver that the code section referenced in paragraph 19 of the Amended

Complaint speaks for itself.
20.

Defendants aver that the attached exhibit referenced in paragraph 20 of the

Amended Complaint speaks for itself.
21.

Defendants aver that the code sections referenced in paragraph 21 of the

Amended Complaint speak for themselves.
22.

Defendants aver that the code section referenced in paragraph 22 of the Amended

Complaint speaks for itself.

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23.

With respect to the allegations contained in paragraph 23 of the Amended

Complaint, defendants aver that the code sections referenced therein speak for themselves.
Defendants admit that the deadline for certifying the names of candidates who qualified to
appear on the Republican Presidential ballot was Tuesday, December 27, 2011, by 5:00 p.m.
24.

Defendants aver that the code section referenced in paragraph 24 of the Amended

Complaint speaks for itself.
25.

Defendants admit that portions of the Commonwealth of Virginia are subject to

the Voting Rights Act of 1965 as amended and aver that the cited United State Code section and
the case of Georgia v. United States, 411 U.S. 526 (1973) speak for themselves.
26.

Defendants aver that the exhibits referenced in paragraph 26 of the First

Complaint speak for themselves.
27.

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

Complaint, defendants admit that SBE-545 is used throughout the Commonwealth to collect
petition signatures, as authorized by law.

Defendants separately aver that all the relevant

requirements at issue have been precleared. Defendants deny all other allegations contained in
paragraph 27 of the Amended Complaint.
28.

Defendants aver that the exhibit referenced in paragraph 28 of the Amended

Complaint speaks for itself.
29.

With respect to the allegations contained in paragraph 29 of the Amended

Complaint, defendants are without sufficient information and belief to admit the allegations, and
therefore, the same are denied.
30.

Defendants admit the allegations contained in paragraph 30 of the Amended

Complaint.

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31.

Defendants admit the allegations contained in paragraph 31 of the Amended

Complaint.
32.

Defendants admit the allegations contained in paragraph 32 of the Amended

Complaint.
33.

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

Complaint, defendants admit that plaintiff 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 plaintiff submitted.
34.

With respect to the allegations contained in paragraph 34 of the Amended

Complaint, defendants admit that the Republican Party of Virginia, through its chairman,
announced that plaintiff had failed to submit sufficient valid signatures to qualify for the primary
ballot. Defendants aver that the referenced code section and exhibit speak for themselves. To
the extent that a response is required, defendants deny all other allegations contained in
paragraph 34 of the Amended Complaint.
35.

Defendants deny the allegations contained in paragraph 35 of the Amended

Complaint.
36.

Defendants deny the allegations contained in paragraph 36 of the Amended

Complaint. Defendants further aver that plaintiff lacks standing to assert an injury arising from
the inability to circulate his own petitions because there is no averment that he stood ready,
willing and able to circulate his own petitions and there is no basis for concluding that he would
have collected a sufficient number of valid signatures.
37.

With respect to the allegations contained in paragraph 37 of the Amended

Complaint, defendants admit that Virginia law prohibits persons not eligible to vote in Virginia

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from witnessing the signing of petitions to place a candidate's name on the ballot. Defendants
further aver that plaintiff lacks 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 but mere speculation for concluding that
they would have collected a sufficient number of valid signatures to qualify plaintiff for the
Republican Presidential primary ballot.
38.

Defendants deny the allegations contained in paragraph 38 of the Amended

Complaint. Defendants aver that plaintiff is not entitled to any of the equitable or declaratory
relief he seeks.
39.

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

of the preceding paragraphs.
40.

Defendants deny all allegations contained in paragraph 40 of the Amended

Complaint. Defendants aver that the code section referenced therein speaks for itself.
41.

Defendants aver that the Virginia Supreme Court's decision in Zinone v. Lee's

Crossing Homeowners Association, 282 Va. 330, 714 S.E.2d 922 (2011), speaks for itself.
42.

With respect to the allegations contained in paragraph 42 of the Amended

Complaint, the allegations call for a legal conclusion to which no response is required. Defendants
admit that the General Assembly knowingly selected the language contained in Va. Code Ann. §
24.2-545 B. Defendants deny all other the allegations contained in paragraph 42 of the Amended
Complaint.
43.

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

of the preceding paragraphs.

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44.

With respect to the allegations contained in paragraph 44 of the Amended

Complaint, defendants admit "that petition signatures are required by a candidate for Office for
the Office of the President of the United States to gain access to [Virginia's] Republican Party
primary ballot." Defendants aver that the referenced code section speaks for itself.
45.

Defendants deny the allegations contained in paragraph 45 of the Amended

Complaint.
46.

Defendants deny the allegations contained in paragraph 46 of the Amended

Complaint. Defendants aver that this Court lacks jurisdiction to grant the relief requested.
47.

With respect to the allegations contained in paragraph 47 of the Amended

Complaint, defendants deny that plaintiff's allegations are sufficiently material to warrant
convening a three-judge court.
48.

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

of the preceding paragraphs.
49.

With respect to the allegations contained in paragraph 49 of the Amended

Complaint, the allegations call for a legal conclusion for which no response is required.
Defendants aver that the Supreme Court's decision in American Constitutional Law Foundation
speaks for itself and that Virginia's witness residency requirement is less restrictive than the
statute at issue in that case.
50.

With respect to the allegations contained in paragraph 50 of the Amended

Complaint, the allegations call for a legal conclusion for which no response is required.
Defendants aver that the various cited decisions speak for themselves.
51.

Defendants deny the allegations contained in paragraph 51 of the Amended

Complaint.

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52.

With respect to the allegations contained in paragraph 52 of the Amended

Complaint, defendants admit that Virginia law prohibits persons not eligible to vote in Virginia
from witnessing the signing of petitions to place a candidate's name on the ballot. Defendants
deny all other allegations contained in paragraph 52 of the Amended Complaint. Defendants
aver that plaintiff lacks 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.
53.

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

of the preceding paragraphs.
54.

Defendants deny the allegations contained in paragraph 54 of the Amended

Complaint.
55.

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

plaintiff's Amended Complaint.
AFFIRMATIVE DEFENSES
Defendants hereby plead the following as affirmative defenses to plaintiff's Amended
Complaint:
1.

Having failed to obtain 10,000 valid signatures, plaintiff lacks standing to

prosecute the claim set forth in Counts I and III of the Amended Complaint. See (Perry v. Judd,
Rec. Nos. 12-1042, 12-1047, Doc. 15 at 15-16).
2.

Plaintiff's claim, in Count II, "to a Temporary Restraining Order and Preliminary

Injunction prohibiting the implementation and use of the unprecleared form for this election," is
barred by the doctrine of laches. See (Docs. 73 at 1-2, 8-12; 74; Rec. No. 12-1067, Doc 15 at 2-

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3, 10-22). Further, this Court, acting alone, lacks jurisdiction to grant the requested relief under
the Voting Rights Act. 28 U.S.C. § 2284(b)(3).
3.

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

4.

The equitable relief sought in the Amended Complaint, insomuch as it seeks to

have plaintiff's name placed on the March 6, 2012 ballot, is barred by the doctrine of laches. See
(Docs. 73 at 1-2, 8-12; 74; Rec. No. 12-1067, Doc 15 at 2-3, 10-22).
5.

To the extent that the 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 Amended 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
Kenneth T. Cuccinelli, II
Attorney General of Virginia
E. Duncan Getchell, Jr., VSB #14156
Solicitor General of Virginia
E-mail: [e-mail]

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Wesley G. Russell, Jr., VSB #38756
Deputy Attorney General
E-mail: [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on the 19th 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 The
Honorable Newt Gingrich
Stefan C. Passantino, Esquire (pro hac vice
filed)
J. Randolph Evans, Esquire (pro hac vice to
be filed)
Benjamin P. Keane, Esquire (pro hac vice
filed)
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 to be
filed)
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

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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
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

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