[EL] Breaking News (Perry lawsuit against Va); more news

Tue Dec 27 16:29:20 PST 2011

I think Fred is correct. You can either:
(1) Bring a pre-enforcement suit, alleging that you would like to use out
of state circulators; or
(2) File suit after submitting a sufficient number of signatures, assuming
that the number of signatures excluded as out-of-state are sufficient to
qualify you for the ballot.

I was counsel in Lux before leaving Jim's firm to advise the Cain campaign.
The facts were more analogous to the second scenario. The State Board of
Elections refused to check his signatures because he failed to submit the
threshold number of signatures after his petitions were excluded.

A couple of points about the Lux case, should the court address the merits:

1. The 4th Circuit just reversed and remanded the Lux case. The district
court held that it was bound by Libertarian Party v. Davis (1984). The
circuit court ruled that it had been overruled by Meyer and ACLF, and
remanded for consideration of the constitutional issue.

2.  As Rick noted, the Chief Justice did issue a chamber opinion, noting
the interesting constitutional issue. Lux was running for Congress, but did
not live in the Congressional district and was barred by a similar
provision that requires the circulator to be an eligible voter for the
office sought.

3.  The overwhelming weight of authority favors Perry. Only the 8th circuit
has upheld a state residency requirements. The 6th, 7th, 9th, and 10th
circuits have all found them unconstitutional.

One final point on the laches argument. I've seen at least one
interpretation of the statute that suggests that the residency requirement
does not apply to the presidential preference petitions. If that is the
case, then Perry should be free to raise it after the state party asserted
it as a grounds for striking petitions. (There is also a suggestion that
the state party published rules regarding how it planned to review
petitions on the filing deadline, the first time it has done so).

Should be interesting to see how this plays out.

-Scott F. Bieniek
sbieniek at bienieklaw.com

2011/12/27 Fredric Woocher <fwoocher at strumwooch.com>

> **
>  Can someone with more knowledge of the facts in Virginia clarify the
> following for me:
>
> Did Perry (or Gingrich) submit signatures gathered by out-of-state
> circulators and have those signatures disqualified in sufficient numbers to
> have resulted in the petitions not qualifying, or is the claim simply that
> they would have been able to submit more signatures if the allegedly
> unconstitutional restriction had not existed and they had not abided by it?
>
> Perry's complaint seems to be ambiguous in this regard (probably
> intentionally), but If the claim is the latter, then I think the issue
> isn't just one of laches, but of a failure to state a claim, since he has
> not in fact submitted a sufficient number of signatures by the prescribed
> deadline.  On the other hand, if the claim is the former -- that signatures
> were wrongly disqualified pursuant to an unconstitutional condition imposed
> on the circulators -- then I don't believe laches should be a valid
> defense:  the claim was brought the moment it became ripe in that the
> injury was caused by enforcing the unconstitutional restriction.
>
> Fredric D. Woocher
> Strumwasser & Woocher LLP
> 10940 Wilshire Blvd., Ste. 2000
> Los Angeles, CA 90024
> fwoocher at strumwooch.com
> (310) 576-1233
>
>
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
> *Sent:* Tuesday, December 27, 2011 3:43 PM
> *To:* law-election at UCI.EDU
> *Subject:* [EL] Breaking News (Perry lawsuit against Va); more news
>
>  Breaking News: Rick Perry Files Suit to Get on Va. Ballot<http://electionlawblog.org/?p=27091>
> Posted on December 27, 2011 3:40 pm <http://electionlawblog.org/?p=27091>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> You can access the complaint here<http://www.rickperry.org/content/uploads/2011/12/Perry-VA-Ballot-Access.pdf>.
> The complaint focuses on Virginia’s ban on out-of-state circulators of
> petitions.  As I told<http://www.washingtonpost.com/politics/gingrich-faces-long-odds-to-compete-in-virginia-presidential-primary/2011/12/25/gIQAErmnHP_story.html>the
> *Washington Post* in connection with a possible suit by Newt Gingrich on
> the same grounds, such a suit now faces long odds both legally and
> politically.  The initial hurdle is one of *laches*, the failure to bring
> suit *before* filing time.  This is an emergency of Perry’s (and
> Gingrich’s) own making.  Surely they knew of the requirement earlier.
>
> I fully expect the defendants to raise the laches defense.  On the merits
> (should a court reach it), the courts are mixed on the residency
> requirement for petition circulators, though there is law that could help
> Perry.   Perhaps most relevant is this in-chambers opinion<http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/Roberts-order-Lux-9-30-101.pdf>of Chief Justice Roberts in
> *Lux v. Rodrigues*.  The Chief found that a related aspect of Virginia’s
> law could well be unconstitutional under recent Supreme Court precedent,
> and that Fourth Circuit authority to the contrary may no longer be good
> law, but he still denied the complaining candidate extraordinary injunctive
> relief.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27091&title=Breaking%20News%3A%20Rick%20Perry%20Files%20Suit%20to%20Get%20on%20Va.%20Ballot&description=>
>  Posted in ballot access <http://electionlawblog.org/?cat=46>, primaries<http://electionlawblog.org/?cat=32>
> | Comments Off
>  “The Canvass: Special Edition: Expert Predictions for 2012″<http://electionlawblog.org/?p=27088>
> Posted on December 27, 2011 1:05 pm <http://electionlawblog.org/?p=27088>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here<http://www.ncsl.org/LegislaturesElections/ElectionsCampaigns41/CNVTheCanvassJanuary2011/tabid/23988/Default.aspx>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27088&title=%E2%80%9CThe%20Canvass%3A%20Special%20Edition%3A%20Expert%20Predictions%20for%202012%E2%80%B3&description=>
>  Posted in election administration <http://electionlawblog.org/?cat=18> | Comments
> Off
>  “Provoking a Virginia election law legal battle: How Gingrich and Perry
> could still get on the Virginia primary ballot”<http://electionlawblog.org/?p=27085>
> Posted on December 27, 2011 12:42 pm <http://electionlawblog.org/?p=27085>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The Northern Virginia Lawyer blogs<http://northernvirginialawyer.blogspot.com/2011/12/provoking-virginia-election-law-legal.html>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27085&title=%E2%80%9CProvoking%20a%20Virginia%20election%20law%20legal%20battle%3A%20How%20Gingrich%20and%20Perry%20could%20still%20get%20on%20the%20Virginia%20primary%20ballot%E2%80%9D&description=>
>  Posted in ballot access <http://electionlawblog.org/?cat=46>, primaries<http://electionlawblog.org/?cat=32>
> | Comments Off
>  Toobin on South Carolina and Preclearance<http://electionlawblog.org/?p=27082>
> Posted on December 27, 2011 12:34 pm <http://electionlawblog.org/?p=27082>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here<http://www.newyorker.com/online/blogs/comment/2011/12/eric-holders-legacy.html?mbid=social_retweet>,
> at the *New Yorker*‘s Daily Comment blog.
>
> I will have more to say on South Carolina and the VRA soon.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27082&title=Toobin%20on%20South%20Carolina%20and%20Preclearance&description=>
>  Posted in voter id <http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off
>  “Absentee Ballots Key to Florida Primary”<http://electionlawblog.org/?p=27078>
> Posted on December 27, 2011 11:03 am <http://electionlawblog.org/?p=27078>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *Miami Herald*<http://www.miamiherald.com/2011/12/26/2562421/absentee-ballots-key-to-florida.html>:
> “More Florida Republicans — about 370,000 — already have requested absentee
> ballots for the Jan. 31 primary than the number of Republicans who voted in
> the 2008 Iowa and New Hampshire contests combined.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27078&title=%E2%80%9CAbsentee%20Ballots%20Key%20to%20Florida%20Primary%E2%80%9D&description=>
>  Posted in absentee ballots <http://electionlawblog.org/?cat=53> | Comments
> Off
>  “D.C. panel issues decision defining preclearance standards”<http://electionlawblog.org/?p=27076>
> Posted on December 27, 2011 11:01 am <http://electionlawblog.org/?p=27076>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> This item<http://blog.chron.com/kuffsworld/2011/12/d-c-panel-issues-decision-defining-preclearance-standards/>appears at the Kuff’s World blog of the
> *Houston Chronicle.*
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27076&title=%E2%80%9CD.C.%20panel%20issues%20decision%20defining%20preclearance%20standards%E2%80%9D&description=>
>  Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
> “How the Virginia Republican Party Could Expand Voter Choice in its 2012
> Presidential Primary” <http://electionlawblog.org/?p=27073>
> Posted on December 27, 2011 10:59 am <http://electionlawblog.org/?p=27073>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Richard Winger explains<http://www.ballot-access.org/2011/12/27/how-the-virginia-republican-party-could-expand-voter-choice-in-its-2012-presidential-primary/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27073&title=%E2%80%9CHow%20the%20Virginia%20Republican%20Party%20Could%20Expand%20Voter%20Choice%20in%20its%202012%20Presidential%20Primary%E2%80%9D&description=>
>  Posted in primaries <http://electionlawblog.org/?cat=32> | Comments Off
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
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