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

Sat Dec 24 12:11:50 PST 2011

The Fourth Circuit reversed and remanded Lux v. Rodrigues earlier this
summer, overruling a prior opinion of the court that had upheld a provision
of Virginia law requiring the petition circulator to be an eligible voter
for the office sought. The opinion didn't resolve the issue, it simply
indicated the prior opinion of the court was no longer binding.
(Disclosure: I represented Lux while a member of Jim Bopp's firm).

The facts of the case were unique in that Lux was a Virginia resident, he
just didn't reside in the congressional district in which he wanted to run
as a candidate.

The Libertarian party brought a similar challenge, but challenged the
restriction on non-Virginia circulators. I don't know what ever became of
that case.

It will be interesting to see how Perry and Gingrich proceed. I also
understand that Huntsman circulated petitions, but failed to gather the
requisite 10,000, and opted not to turn them in. To my knowledge, neither
Santorum or Bachmann made an organized effort to even try and meet the
requirement.

On Sat, Dec 24, 2011 at 1:48 PM, Goldfeder, Jerry H. <jgoldfeder at stroock.com
> wrote:

>  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*> wrote:
>
>   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*
> *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*< *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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