[EL] grounds for Gingrich and/or Perry to sue for Virginia ballot access

Sat Dec 24 10:48:14 PST 2011

Your analysis is well done. Unfortunately, depending upon the circuit, and the factual circumstances, it's sometimes a long way from A to B. Having said that, my default arguments are always informed by and predicated upon an expansive democratic principle. So, I say: Buckley of course applies! Have a good holiday.

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212 806 5857
917 680 3132
jgoldfeder at stroock.com
www.stroock.com/goldfeder

From: Flavio Komuves [mailto:fkomuves at optonline.net]
Sent: Saturday, December 24, 2011 01:38 PM
To: Goldfeder, Jerry H.
Cc: rhasen at law.uci.edu <rhasen at law.uci.edu>; law-election at uci.edu <law-election at uci.edu>
Subject: Re: [EL] grounds for Gingrich and/or Perry to sue for Virginia ballot access

The Buckley line of cases goes beyond initiatives, and has been applied to nominating petitions,  Krislov v. Rendour, 226 F.3d 851 (7th Cir. 2000); Lerman v. Board of Elections, 232 F.3d 135 (2d Cir. 2000); Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D. Pa. 2002), as well as to recall petitions, Bogaert v. Land, 572 F. Supp. 2d 883 (W.D. Mich.), appeal dismissed, 543 F.3d 862 (6th Cir. 2008).

Gingrich or Perry would face difficulties, however, in challenging their exclusion from the ballot.  First, the Fourth Circuit has not applied Buckley in a broad manner.  See, e.g., Lux v. Rodrigues, 131 S. Ct. 5, 177 L. Ed. 2d 1045 (2010) (Roberts, C.J., in chambers) and Lux v. Judd, 651 F.3d 396 (4th Cir. 2011).

Moreover, Buckley by its terms reserved judgment on whether a state could enforce an in-state requirement for circulators.  At least one court has struck an in-state requirement, but it's not within the Fourth Circuit.  See Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008).

Finally, I haven't seen any accounts suggesting that Perry or Gingrich submitted petitions circulated by out of staters that were then stricken (as occurred in Lerman).  In otherwise, any challenge would posit the hypothetical that had there been no valid ban, the campaigns could and would have gotten out of staters to collect signatures in sufficient numbers to get them on the ballot.  This seems like the kind of challenge that should have been raised before the filing deadline, not after.

On Sat, Dec 24, 2011 at 1:18 PM, Goldfeder, Jerry H. wrote:

 I meant the constitutional challenge should NOT be different, but experience teaches that court often treat state law restrictions in the candidate context more deferentially than  in the Initiative context. Maslow (2d Circuit); Lopez-Torres (Supreme Ct).

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212 806 5857
917 680 3132
jgoldfeder at stroock.com
www.stroock.com/goldfeder

From : Goldfeder, Jerry H. [mailto:jgoldfeder at stroock.com]
Sent : Saturday, December 24, 2011 01:08 PM
To : 'rhasen at law.uci.edu' <rhasen at law.uci.edu>
Cc : 'law-election at uci.edu' <law-election at uci.edu>
Subject : Re: [EL] grounds for Gingrich and/or Perry to sue for Virginia ballot access

Should be; but as we know courts often are quite deferential to state election laws/regulations. Look at Second Circuit's recent ruling in Maslow, which relates to NY's law re circulators.

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212 806 5857
917 680 3132
jgoldfeder at stroock.com
www.stroock.com/goldfeder

From : Hasen, Richard [mailto:rhasen at law.uci.edu]
Sent : Saturday, December 24, 2011 01:04 PM
To : Goldfeder, Jerry H.
Cc : richardwinger at yahoo.com <richardwinger at yahoo.com>; law-election at uci.edu <law-election at uci.edu>
Subject : Re: [EL] grounds for Gingrich and/or Perry to sue for Virginia ballot access

Would the logic of the constitutional challenge be any different?

Rick Hasen

Sent from my iPhone. Please excuse typos.

On Dec 24, 2011, at 9:56 AM, "Goldfeder, Jerry H." < jgoldfeder at stroock.com<javascript:parent.wgMail.openComposeWindow('jgoldfeder at stroock.com')>> wrote:

<javascript:parent.wgMail.openComposeWindow('jgoldfeder at stroock.com')>
<javascript:parent.wgMail.openComposeWindow('jgoldfeder at stroock.com')>
As Richard knows, the Colorado Buckley case relates to Initiatives, not candidates.

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212 806 5857
917 680 3132
jgoldfeder at stroock.com<javascript:parent.wgMail.openComposeWindow('jgoldfeder at stroock.com')>
www.stroock.com/goldfeder<http://www.stroock.com/goldfeder>

From : Richard Winger [mailto:richardwinger at yahoo.com]
Sent : Saturday, December 24, 2011 12:20 PM
To : law-election at uci.edu<javascript:parent.wgMail.openComposeWindow('law-election at uci.edu')>< law-election at uci.edu<javascript:parent.wgMail.openComposeWindow('law-election at uci.edu')>>
Subject : [EL] grounds for Gingrich and/or Perry to sue for Virginia ballot access

Either Rick Perry or Newt Gingrich or both are free to sue Virginia State Board of Elections over the Virginia state law that wouldn't let out-of-state circulators work on their presidential primary petitions.

In 2000, Ralph Nader won injunctive relief against Illinois and West Virginia, after complaining that his petitions might have succeeded without the ban on out-of-state circulators.  The Nader decision isn't reported but was Nader 2000 Primary Committee v Illinois  State Board of Elections, northern district, 00-cv-4401.  The West Virginia case is reported and is Nader 2000 Primary Committee v Hechler, 112 F Supp 2d 575 (s.d. W.V. 2000).

The US Supreme Court decision from 1999, Buckley v American Constitutional Law Foundation, suggests that bans on out-of-state circulators are unconstitutional, although it didn't settle that issue completely.  It did strike down a Colorado law that said circulators  must be registered voters.  525 US 182.  Since then, bans on out-of-state circulators have been thrown out in the 6th, 7th, 9th, and 10th circuits, and in lesser courts in certain states not in those particular circuits.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
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