Lux v. Judd

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation651 F.3d 396
Docket NumberNo. 10–1997.,10–1997.
PartiesHerb LUX; Stephen Cruse; Andrew Mikel; Eugene Foret, Plaintiffs–Appellants,v.Charles E. JUDD; Kimberly T. Bowers; Donald Palmer, members of the Virginia State Board of Elections, in their official capacities, Defendants–Appellees.
Decision Date06 July 2011

651 F.3d 396

Herb LUX; Stephen Cruse; Andrew Mikel; Eugene Foret, Plaintiffs–Appellants,
Charles E. JUDD; Kimberly T. Bowers; Donald Palmer, members of the Virginia State Board of Elections, in their official capacities, Defendants–Appellees.

No. 10–1997.

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2011.Decided: July 6, 2011.

[651 F.3d 397]

ARGUED: Jared Haynie, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellants. Earle Duncan Getchell, Jr., Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: James Bopp, Jr., Scott F. Bieniek, Josiah Neeley, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellants. Kenneth T. Cuccinelli, II, Attorney General of Virginia, Stephen M. Hall, Assistant Attorney General, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees.Before DUNCAN and AGEE, Circuit Judges, and DAVID C. NORTON, Chief United States District Judge for the District of South Carolina, sitting by designation.

[651 F.3d 398]

Affirmed in part, reversed in part, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge NORTON joined.
DUNCAN, Circuit Judge:

This case arises out of Herb Lux's unsuccessful attempt to run for Congress in Virginia's Seventh Congressional District. In 2010, Lux's application for ballot placement as an independent candidate was denied due to his failure to comply with the state's requirement that each petition signature in support of his candidacy be witnessed by a district resident. Lux, and his supporters Stephen Cruse, Andrew Mikel, and Eugene Foret (collectively “plaintiffs”), sued representatives of the Virginia State Board of Elections in their official capacities (collectively “the Board”), urging that the residency requirement violated their First and Fourteenth Amendment rights. The district court dismissed their complaint, relying in large part on our analysis in Libertarian Party of Virginia v. Davis, 766 F.2d 865 (4th Cir.1985). For the reasons described below, we hold that the limited rationale underlying Davis has been superseded by subsequent Supreme Court decisions, and remand for further proceedings.


We briefly review the undisputed facts. Under Virginia law, prospective independent candidates for the U.S. House of Representatives (“the House”) must file declarations of candidacy with the State Board of Elections. See Va.Code Ann. § 24.2–505(A). Such candidates must also file petitions in support of their inclusion on the ballot signed by 1000 “qualified voters.” 1 Id. at § 24.2–506. At issue here is section 24.2–506's additional requirement that each of those signatures be “witnessed by a person who is himself a qualified voter, or qualified to register to vote, for the office for which he is circulating the petition.” Id.

In 2010, Lux tried to run as an independent candidate for Virginia's Seventh Congressional District's House seat. Lux is a Virginia resident, but did not live in the Seventh District. As a nonresident of the Seventh District, Lux was not qualified to vote in that district's House election and was consequently barred by section 24.2–506 from witnessing petition signatures in support of his candidacy.2

Lux received and read a “candidate packet” that explained the “qualified voter” requirement for petition witnesses. J.A. 196. However, due to “confusion” on his part, he nevertheless personally circulated and witnessed sixty-three petitions in support of his candidacy, and collected approximately 1063 signatures. Id. District residents—including Cruse, Mikel, and Foret—circulated and witnessed an additional fifteen candidate petitions on Lux's behalf, and collected a total of about 151 signatures. Lux submitted all seventy-

[651 F.3d 399]

eight petitions, as well as his timely declaration of candidacy, to the State Board of Elections on June 8, 2010.

On June 21, the Board sent Lux a letter informing him that, because he did not live in the Seventh District, it would not count any petition signatures that he had personally collected and witnessed. The letter further noted that even if all the remaining signatures witnessed by district residents were verified, Lux would still not meet the 1000–signature threshold necessary to appear on the ballot. Two days later, the Board issued a final ruling confirming that, with the petitions Lux had witnessed excluded, he had failed to provide sufficient signatures to qualify as a House candidate from Virginia's Seventh District.


On July 13, 2010, plaintiffs sued the Board in the federal district court for the Eastern District of Virginia. Their one-count complaint alleged that section 24.2–506's district-residency requirement for petition witnesses violated their rights to freedom of speech and association under the First and Fourteenth Amendments. Plaintiffs sought a declaration that the residency requirement was unconstitutional. They also asked for preliminary and permanent injunctive relief against the Board's enforcement of the requirement, as well as attorney's fees.

The Board opposed plaintiffs' request for a preliminary injunction and, in early August, moved to dismiss their complaint under Fed.R.Civ.P. 12(b)(6). Recognizing the time constraints posed by the looming filing deadline for the November election, the parties consolidated their motions for preliminary relief and disposition. In late August 2010, the district court denied plaintiffs' motion for a preliminary injunction and granted the Board's motion to dismiss.

In a comprehensive memorandum decision that relied in significant part on our decision in Davis, the district court held that plaintiffs had failed to state a plausible claim for relief. The district court focused in particular on Davis's analysis of a statute that established ballot-access conditions in presidential elections for organizations that did not qualify as political parties under Virginia law; among these conditions was a residency requirement for petition witnesses similar to the provision at issue here. As the district court explained, Davis held that that requirement passed constitutional muster, as it served the “important purpose” of ensuring a threshold level of popular support, by mandating at least one in-district “activist” willing to “shoulder the burden of witnessing signatures.” J.A. 235 (quoting Davis, 766 F.2d at 869–70). Citing, inter alia, “the weight of [this circuit's] contrary jurisprudence,” the district court found that plaintiffs could not plausibly argue that the residency requirement violated their constitutional rights. J.A. 238.

On August 27, 2010, plaintiffs timely appealed. They subsequently sought injunctive relief, which we denied on September 15, 2010.

Plaintiffs then applied for an injunction from the U.S. Supreme Court. On September 30, 2010, Chief Justice Roberts, in his capacity as Circuit Justice for this circuit, declined to grant relief. See Lux v. Rodrigues, –––U.S. ––––, 131 S.Ct. 5, 7, 177 L.Ed.2d 1045 (2010) (Roberts, Circuit Justice). Chief Justice Roberts acknowledged that plaintiffs “may very well be correct” that Davis had been undermined by subsequent Supreme Court decisions. Id. at 6. However, given that at least one of the Supreme Court cases on which Lux relied differentiated between the registration requirements before it and the sort of

[651 F.3d 400]

residency requirement applied here, the Chief Justice found that Lux had not satisfied his burden of showing a right to relief that was “indisputably clear.” Id. at 6–7.

Against that background, we turn to consideration of the arguments presented. As a threshold matter, the Board raises two distinct jurisdictional challenges. First, it contends that Cruse, Mikel, and Foret lack standing, as they cannot show a cognizable injury. Second, it urges that Lux's own claim has been rendered moot. We consider each argument in turn.


Article III standing requires plaintiffs to demonstrate, inter alia, “an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Doe v. Obama, 631 F.3d 157, 160 (4th Cir.2011). The Board contends that Cruse, Mikel, and Foret have not suffered a cognizable injury. It specifically argues that, as district residents, the three coplaintiffs were free to circulate petitions on Lux's behalf and, ultimately, to vote for him as a write-in candidate. Plaintiffs respond that the Board's refusal to count the petitions Lux had witnessed harmed all three coplaintiffs, as they “had worked and associated together for the very purpose of helping their preferred candidate appear on the ballot.” Reply Br. at 11.

While we are not unsympathetic to Lux's supporters' frustration, they cannot show they suffered any cognizable harm arising out of the residency requirement. The Board duly counted the signatures collected by Cruse, Mikel, and Foret, and section 24.2–506 did not prevent them from casting write-in votes for Lux in the congressional election. On these facts, Lux's coplaintiffs' “abstract, generalized interest” in seeing his name on the ballot cannot “meet the requirement that an injury be concrete and particularized.” Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir.2009); see also 13A C.A. Wright, et al., Federal Practice &...

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