Perry v. Judd et al

Filing 88

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 NEWT GINGRICH,
THE HONORABLE JON HUNTSMAN,
JR., and THE HONORABLE RICK
SANTORUM
Plaintiffs-Intervenors,
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 INTERVENORS' 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 plaintiffs-intervenors (collectively, the
"intervenors") and state as follows:
1.

Defendants admit that intervenors Gingrich and Santorum are currently

candidates for the Office of President of the United States, but are without sufficient information
and belief to admit that intervenor Huntsman made an effort "to qualify for the March 6, 2012
Republican Primary election ballot," and therefore deny the same.

Defendants aver that

intervenor Huntsman is no longer a candidate for the Office of President of the United States.
2.

With respect to the allegations contained in paragraph 2 of the Amended

Complaint, defendants admit that intervenors Santorum and Huntsman did not submit the
requisite number of valid signatures, but deny the remaining allegations of said paragraph.

3.

Defendants admit that intervenor Gingrich failed to submit the requisite number

of valid signatures, but deny all other allegations contained in paragraph 3 of the Amended
Complaint.
4.

Defendants deny the allegations contained in paragraph 4 of the Amended

Complaint. Defendants further aver that intervenors lack standing to assert an injury arising
from their 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 for concluding
that they would have collected a sufficient number of signatures.
5.

Defendants deny the allegations in paragraph 5 of the Amended Complaint.

6.

With respect to the allegations contained in paragraph 6 of the Amended

Complaint, defendants aver that that many of the ballots have been printed and shipped to
comply with federal law, state law, and a consent decree entered by this Court. See (Case 3:08cv-00709-RLW Doc. 75). Defendants also aver that intervenors are not entitled to any of the
equitable or declaratory relief the seek.
7.

Defendants admit that there is federal question jurisdiction, but deny that there is

jurisdiction under the Voting Rights Act of 1965 as amended.
8.

Defendants admit the allegations in paragraph 8 of the Amended Complaint.

9.

Defendants deny that the allegations of intervenors are sufficiently material to

warrant convening a three-judge court.
10.

Defendants admit the allegations in paragraph 10 of the Amended Complaint.

11.

Defendants admit the allegations in paragraph 11 of the Amended Complaint.

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12.

Defendants admit the allegations in paragraph 12 of the Amended Complaint,

except to deny that intervenor Huntsman is an active candidate for the Office of President of the
United States.
13.

Defendants admit the allegations in paragraph 13 of the Amended Complaint.

14.

With respect to the allegations contained in paragraph 14 of the Amended

Complaint, defendants aver that the referenced code sections speak for themselves.
15.

With respect to the allegations contained in paragraph 15 of the Amended

Complaint, defendants aver that the referenced code sections speak for themselves.
16.

With respect to the allegations contained in paragraph 16 of the Amended

Complaint, defendants aver that the referenced code section and exhibit speak for themselves.
17.

With respect to the allegations contained in paragraph 17 of the Amended

Complaint, defendants aver that the referenced code section speaks for itself.
18.

With respect to the allegations contained in paragraph 15 of the Amended

Complaint, defendants aver that the referenced form and exhibit speak for themselves.
19.

With respect to the allegations contained in paragraph 19 of the Amended

Complaint, defendants aver that the referenced code sections speak for themselves.
20.

With respect to the allegations contained in paragraph 20 of the Amended

Complaint, defendants aver that the referenced code section speaks for itself.
21.

With respect to the allegations contained in paragraph 21 of the Amended

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

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22.

With respect to the allegations contained in paragraph 22 of the Amended

Complaint, defendants aver that the referenced code section speaks for itself
23.

Defendants admit the allegations contained in paragraph 23 of the Amended

Complaint.
24.

Defendants admit the allegations contained in paragraph 24 of the Amended

Complaint.
25.

Defendants admit the allegations contained in paragraph 25 of the Amended

Complaint.
26.

Defendants admit the allegations contained in paragraph 26 of the Amended

Complaint.
27.

Defendants admit the allegations contained in paragraph 27 of the Amended

Complaint.
28.

Defendants admit the allegations contained in paragraph 28 of the Amended

Complaint.
29.

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

Complaint, defendants admit that intervenor Gingrich signed and affirmed, in the presence of a
notary, his Declaration of Candidacy for the Office of the President of the United States for the
Commonwealth of Virginia. Defendants are without sufficient information and belief to admit
that intervenor Santorum did as well, and therefore, the same is denied. Defendants aver that no
Declaration of Candidacy signed and affirmed by intervenor Santorum in the presence of a
notary was filed with the Virginia State Board of Elections.
30.

Defendants deny the allegations contained in paragraph 30 of the Amended

Complaint.

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31.

With respect to the allegations contained in paragraph 31 of the Amended

Complaint, defendants admit that intervenor Gingrich failed to submit the requisite number of
valid petition signatures to qualify to have his name placed on the ballot. Defendants deny the
remaining allegations containing in paragraph 31 of the Amended Complaint.
32.

With respect to the allegations contained in paragraph 32 of the Amended

Complaint, defendants admit that intervenor Santorum failed to submit any petition signatures to
the Board. Defendants deny that the Board "refused to accept" any signatures offered by
intervenor Santorum. Defendants are without sufficient information and belief to admit that
intervenor Santorum collected "in excess of 8,000 petition signatures," and therefore, the same is
denied.
33.

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

Complaint, defendants admit that intervenors Huntsman and Santorum failed to submit the
requisite number of valid signatures to entitle them to have their names appear as candidates on
the Republican Presidential primary ballot. Defendants aver that the referenced code section
speaks for itself. Defendants deny all remaining allegations contained in paragraph 33 of the
Amended Complaint.
34.

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

Complaint, defendants admit that intervenor Gingrich failed to submit the requisite number of
signatures to entitle him to have his names appear as a candidate on the Republican Presidential
primary ballot. Defendants aver that the referenced code section speaks for itself. Defendants
deny the remaining allegations contained in paragraph 34.
35.

Defendants deny the allegations contained in paragraph 35 of the Amended

Complaint.

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36.

Defendants deny the allegations contained in paragraph 36 of the Amended

Complaint.

Defendants aver that intervenors lack standing to challenge Virginia's witness

residency requirements insomuch as it may inhibit a candidate from circulating his or her own
petitions, as there is no averment that any of the three intervenors stood ready, willing and able
to do so to circulate their own petitions. Defendants also aver that intervenors Gingrich and
Santorum, as persons eligible to vote in the Commonwealth of Virginia, lack standing to
challenge the circulator requirements, as they were not restricted from circulating their own
petitions, had they so desired.
37.

Defendants deny the allegations contained in paragraph 37 of the Amended

Complaint.

Defendants aver that intervenors lack standing to challenge Virginia's witness

residency requirements insomuch as it may inhibit a candidate from employing non-residents as
circulators, as there is no averment that any of the intervenors stood ready, willing and able to
employ non-resident circulators and there is no basis for concluding that non-resident circulators
would have collected a sufficient number of signatures had they done so.
38.

Defendants deny the allegations contained in paragraph 38 of the Amended

Complaint.
39.

Defendants re-allege and incorporate by reference all of the allegations contained

in all of the preceding paragraphs.
40.

Defendants deny the allegations contained in paragraph 40 of the Amended

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

With respect to the allegations contained in paragraph 41 of the Amended

Complaint, the allegations call for a legal conclusion to which no response is required.
Defendants aver that the Virginia Supreme Court's decision in Zinone v. Lee's Crossing

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Homeowner's Association, 282 Va. 330, 714 S.E.2d 922 (2011) speaks for itself. Insofar as
paragraph 41 of the Amended Complaint contains any allegations requiring an answer, the same
are denied.
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.
44.

With respect to the allegations contained in paragraph 44 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.
45.

With respect to the allegations contained in paragraph 45 of the Amended

Complaint, the allegations call for a legal conclusion for which no response is required.
Defendants aver that the various cited decisions contained in paragraph 45 speak for themselves.
46.

Defendants deny the allegations contained in paragraph 46 of the Amended

Complaint.
47.

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

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aver that there is no basis but mere speculation for concluding that non-resident circulators
would have collected a sufficient number of valid signatures to qualify intervenors for the
Republican Presidential primary ballot. Defendants deny the remaining allegations contained in
paragraph 47 of the Amended Complaint.
48.

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

of the preceding paragraphs.
49.

Defendants deny the allegations contained in paragraph 49 of the Amended

Complaint.
50.

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

intervenors' Amended Complaint.
AFFIRMATIVE DEFENSES

Defendants hereby plead the following as affirmative defenses to intervenors' Amended
Complaint:
1.

Having failed to obtain 10,000 valid signatures, intervenors lack standing to

prosecute the claim set forth in Count 2.

Also, intervenors Santorum and Huntsman lack

standing to prosecute Count 2 for the independent reason that they failed to file a valid
Declaration of Candidacy with the Virginia State Board of Elections. Intervenor Gingrich also
lacks standing to prosecute Count 2 because the independent act of a third party, and not the
10,000 signature requirement, prevented intervenor Gingrich from submitting the requisite
number of valid signatures.
2.

Having omitted any allegation that intervenors intend to avail themselves of

Virginia's Republican Presidential Primary in the future, all three counts of the Amended
Complaint, requesting equitable relief, are now moot or will be before the action reaches

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decision. Furthermore, because intervenor Huntsman has withdrawn his candidacy, his claims
are currently moot.
3.

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

4.

The 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 Amended 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 Judd,
Bowers and Palmer
Kenneth T. Cuccinelli, II
Attorney General of Virginia

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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]

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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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