[EL] why "laches" argument is weak in Virginia

[Richard Winger]

Rick Perry filed his lawsuit against the Virginia presidential primary ballot access law on December 27, 2011.  That was 70 days before the March 6, 2012 primary.  Judge Gibney kept him off the ballot only because he filed the lawsuit too late.

However, in the litigation against New York state's presidential primary ballot access restrictions in 2000, the lawsuit was filed 76 days before New York state's primary, and that lawsuit succeeded.  It was Molinari v Powers, and it resulted in placing John McCain, Steve Forbes, and Alan Keyes on the Republican presidential primary ballot.  There isn't much difference between 70 days and 76 days.

In 1976, Morris Udall sued over Indiana presidential primary rules.  He fought the congressional district distribution requirement.  Although he lost in the 3-judge court, 2-1, no one accused him of laches in the decision.  He filed the case on March 16, and the primary was May 4.  He filed his lawsuit only 49 days before the primary.

Also in 1976, Eugene McCarthy, an independent presidential candidate, filed his lawsuit against Florida ballot access restrictions on August 26, 1976, and the election was November 2, 1976.  That was only 68 days.  The state accused McCarthy of laches, but McCarthy won the case, was put on the ballot, and the judge said he was not guilty of laches.  McCarthy v Askew, 420 F Supp 775.

Judge Gibney's decision on laches seems to be motivated more by moral indignation than by any pragmatic considerations.  After all, Judge Gibney himself had told Virginia elections officials not to print or mail any absentee ballots until January 13, the hearing date.  Presumably his instructions were obeyed.  So what are the pragmatic considerations that say "laches" should apply?

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
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