Perry v. Judd

• Decision Date: 13 January 2012
• Docket Number: Civil Action No. 3:11–CV–856–JAG.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: The Honorable Rick PERRY, Plaintiff, and The Honorable Newt Gingrich, The Honorable Jon Huntsman, Jr., and The Honorable Rick Santorum, Intervenors, v. Charles JUDD, Member of the Virginia State Board of Elections, in his official capacity, et al., Defendants.

840 F.Supp.2d 945

The Honorable Rick PERRY, Plaintiff,andThe Honorable Newt Gingrich, The Honorable Jon Huntsman, Jr., and The Honorable Rick Santorum, Intervenors,

v.Charles JUDD, Member of the Virginia State Board of Elections, in his official capacity, et al., Defendants.

Civil Action No. 3:11–CV–856–JAG.

United States District Court,

E.D. Virginia,

Richmond Division.

Jan. 13, 2012.

Hugh McCoy Fain, III, Spotts Fain PC, Richmond, VA, for Plaintiff.

MEMORANDUM OPINION

JOHN A. GIBNEY JR., District Judge.

This matter is before the Court on the plaintiff and intervenor-plaintiffs' (collectively, the “plaintiffs”) motion for a preliminary injunction. The plaintiffs are candidates seeking the Republican nomination for President of the United States. Under Virginia law, they failed to obtain the required number of petition signatures to place their names on the ballot for the Republican primary election. Now, they ask the Court for a preliminary injunction ordering that they be listed on the ballot. The plaintiffs argue that Virginia's rules limiting who can circulate candidate petitions and requiring 10,000 signatures violate the First and Fourteenth Amendments to the Constitution.

The equitable doctrine of laches bars the plaintiffs' request for a preliminary injunction. They knew the rules in Virginia many months ago; the limitations on circulators affected them as soon as they began to circulate petitions. The plaintiffs could have challenged the Virginia law at that time. Instead, they waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot; then, on the eve of the printing of absentee ballots, they decided to challenge Virginia's laws. In essence, they played the game, lost, and then complained that the rules were unfair.

Ordinarily, the decision on laches would preclude further analysis of the case. The Court recognizes, however, that the parties may well seek appellate review of this matter. In order to allow a complete review on appeal, the Court will also analyze the merits of the plaintiffs' claims.

I. Parties and Proceedings

The original plaintiff in this case is Rick Perry (“Perry”), a Republican candidate for the presidency. Three other Republican candidates have intervened as plaintiffs—Newt Gingrich (“Gingrich”), Rick Santorum (“Santorum”), and Jon Huntsman, Jr. (“Huntsman”).

The defendants are Charles Judd, Kimberly Bowers, and Don Palmer, the members of the Virginia State Board of Elections (collectively, the “Board”). Pat Mullins (“Mullins”), Chairman of the Republican Party of Virginia, is also a defendant.

Perry filed this lawsuit challenging the petition requirements on December 27, 2011. Gingrich, Santorum, and Huntsman intervened on January 4, 2012. The Court ordered expedited briefing, and, on January 13, 2012, held an evidentiary hearing on the motion for preliminary relief.

The plaintiffs raise claims arising under the First and Fourteenth Amendments to the Constitution. They attack Virginia's rule that only people eligible to register to vote may circulate petitions for signatures to place a candidate on the ballot. The plaintiffs contend that the limitation on who may seek signatures restricts their rights of free speech and association, because fewer people can advocate them as candidates.

The plaintiffs also challenge Virginia's statute requiring statewide candidates to obtain 10,000 signatures, including 400 from each congressional district, to secure a place on the ballot. They claim the number of signatures is too burdensome and, therefore, unconstitutional. Finally, the plaintiffs argue that Virginia's election procedures violate the Voting Rights Act. ¹

II. Law Governing Preliminary Injunctive Relief

The requirements for preliminary injunctive relief are well established. Such relief is appropriate when the plaintiffs establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the plaintiffs' favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346–47 (4th Cir.2009), vacated on other grounds,––– U.S. ––––, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). As the Fourth Circuit explained in Real Truth About Obama,Winter requires that the plaintiffs make a clear showing that they will likely succeed on the merits at trial. Real Truth About Obama, Inc., 575 F.3d at 346.

The traditional purpose of a preliminary injunction is to prohibit an action. Preliminary injunctions are meant to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.2003). Mandatory injunctive relief, however, alters the status quo by commanding or requiring a party to perform a positive act. In this case, the plaintiffs request that the Court require the Board to add their names to the primary ballot, which is a positive act that alters the status quo. The Fourth Circuit has viewed mandatory relief with caution, explaining that it “should be granted only in those circumstances when the exigencies of the situation demand such relief.” Id. at 526 (citing Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.1980)). “[A] mandatory preliminary injunction must be necessary both to protect against irreparable harm in a deteriorating circumstance created by the defendant and to preserve the court's ability to enter ultimate relief on the merits of the same kind.” Id.

Laches is an equitable doctrine that precludes relief when a plaintiff has delayed bringing suit to the detriment of the defendant. The doctrine applies with particular force in the context of preliminary injunctions against governmental action, where litigants try to block imminent steps by the government. “Equity demands that those who would challenge the legal sufficiency of administrative decisions concerning time sensitive public ... projects do so with haste and dispatch.” Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75, 80 (4th Cir.1989); see Equity in Athletics, Inc. v. Dep't of Educ., 504 F.Supp.2d 88, 100–01 (W.D.Va.2007) (delay in bringing suit is a factor to be considered in granting preliminary relief); Marshall v. Meadows, 921 F.Supp. 1490, 1494 (E.D.Va.1996) (“The Fourth Circuit is especially mindful of laches in the context of an impending vote.”).

III. The Virginia Statutory Scheme

The Virginia Code grants to the Board the authority to make rules and regulations and provide information consistent with election laws. SeeVa.Code § 24.2–103(A). Under Va.Code § 24.2–545, the Board has the responsibility to create the form for receiving primary petition signatures. The form prescribed by the Board requires petitions to be collected after July 1, 2011. Significantly for this case, the petition must be circulated by a registered voter or someone eligible to vote in Virginia, who signs the petition in the presence of a notary.²

The candidate must file petitions with the Board signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in Virginia, who attest that they intend to participate in the primary. SeeVa.Code § 24.2–545(B). All presidential candidates seeking the nomination of a national party must also complete a Consent/Declaration Form, formally certifying their desire to run in Virginia.

Thereafter, the Board turns the petitions over to the party conducting a primary.³ The party then certifies to the Board which candidates have qualified to appear on the presidential primary ballot. Finally, the Board conducts a drawing to determine the order in which the names appear on the ballot.

IV. Statement of the Material Facts

All parties have filed extensive memoranda supporting their respective positions. The Court heard oral argument and conducted an evidentiary hearing on the preliminary injunction motion. The parties have also agreed that the Court should consider the affidavits and exhibits filed with the Court. Based on the evidence presented, the Court has determined that the following narrative represents the material facts of this case for the purpose of resolving the motion.

The plaintiffs are candidates for the office of President of the United States. Each plaintiff satisfies the requirements of the Constitution to be President of the United States.

Perry declared himself a candidate for president on August 13, 2011. He filed his Statement of Candidacy with the Federal Election Commission on August 15, 2011. Perry signed and affirmed, in the presence of a notary as required by Va.Code § 24.2–545, his Declaration of Candidacy for the Commonwealth of Virginia on October 13, 2011. On December 22, 2011, Perry submitted to the Board petitions containing fewer than 10,000 signatures.⁴ On December 23, 2011, Republican Party Chairman Mullins made a preliminary determination and publicly announced that Perry had not submitted enough petition signatures.

Gingrich declared his candidacy for the presidency on May 11, 2011. He filed his Statement of Candidacy with the Federal Election Commission on May 16, 2011, and submitted his Declaration of Candidacy for the Commonwealth of Virginia on December 22, 2011. On December 22, 2011, Gingrich also submitted his petition signatures. Gingrich claims that he submitted 11,050 signatures. The Board states that less than 10,000 of the submitted signatures were valid, but does not know the precise number of signatures submitted. On December 23, 2011, Mullins publically announced that Gingrich had not qualified to appear on the ballot.

Huntsman declared his candidacy for the presidency on June 21, 2011....