Jan. 14 (Bloomberg) -- Texas Governor Rick Perry waited too long to challenge the eligibility requirements for Virginia’s primary ballot and he and three other Republican presidential candidates won’t appear on it, a judge ruled.
U.S. District Judge John A. Gibney Jr. in Richmond yesterday denied a challenge by the GOP candidates, who argued Virginia’s primary rules requiring those seeking to have their names placed on the ballot submit 10,000 signatures from valid Virginia voters are improper and unconstitutional.
“In essence, they played the game, lost and then complained that the rules were unfair,” Gibney said in court.
Virginia’s rule requiring petition circulators to be eligible voters is probably unconstitutional, Gibney said. Still, he told the candidates’ lawyers that they waited almost six months from the day signatures could be collected to file a lawsuit, a delay he called “unreasonable.” Adding the names to the March 6 ballot now would jeopardize the state’s primary process, the judge said.
“If they had brought suit in a timely manner, then the plaintiffs may have been able to gather the required signatures,” Gibney said. “As it stands now, we can only speculate.”
Gibney said he expects his ruling to be appealed to the U.S. Court of Appeals in Richmond.
“We are disappointed with this result that disenfranchises Virginia voters,” Joseph Nixon, a lawyer for the Perry campaign, said in an e-mailed statement. “The judge confirmed that the statute is unconstitutional, but did not remedy the situation.”
He said Perry hasn’t decided whether to appeal.
Republican candidates Rick Santorum, Newt Gingrich and Jon Huntsman, who joined the suit, were also barred from the primary because of their failure to get enough signatures from qualified Virginia voters. They, with Perry, argued that Virginia’s rule requiring petition circulators to be eligible voters in the state violates “freedoms of speech and association protected by the First and Fourteenth Amendments” of the U.S. Constitution.
Former U.S. Senator Santorum of Pennsylvania, asked about the ruling while shaking hands with voters at a candidate forum in Duncan, South Carolina, said he didn’t know whether he would file an appeal.
‘Life Goes On’
“Life goes on,” said Gingrich, also campaigning in Duncan. He told reporters he would look to offset the primary in Virginia with strong performances in other states. “I think we’ll be fine,” he said.
The final outcome of the case in Virginia, where former Massachusetts Governor Mitt Romney and U.S. Representative Ron Paul of Texas are the only Republicans on the ballot, may have little influence on the course of this year’s presidential primary race. After winning Iowa and New Hampshire, Romney is ahead in public opinion surveys in South Carolina, which holds its primary Jan. 21, and in Florida, where voters will go to the polls Jan. 31.
Romney victories in both states may clear the field, except for Paul, well before Virginia comes up on the presidential primary calendar on March 6.
Virginia Attorney General Kenneth Cuccinelli, in an e-mailed statement, said he was “pleased that the district court is allowing Virginia’s orderly election to move forward.”
Cuccinelli argued in court papers that materials for the primary needed to go to the printer immediately to meet legal deadlines for getting ballots to absentee and overseas voters.
He noted that yesterday’s ruling was on the request for an injunction and that the lawsuit will move forward.
Perry’s lawsuit, filed Dec. 27, sought a temporary order to halt Virginia officials from printing the ballots, or to require them to include his name on them.
Perry also argued that changes to ballot access made in May weren’t cleared under the Voting Rights Act and challenged the state’s interpretation of the signature rules.
During yesterday’s hearing, campaign advisers to the candidates testified that Virginia’s ballot requirements are burdensome and expensive.
Joe Allbaugh, a former George W. Bush administration official who is now senior adviser to the Perry campaign, told Gibney the campaign will spend about $91,000 to get on primary ballots nationally. The failed effort in Virginia will account for about $45,000 of that sum, he said.
Perry submitted “over 6,000 petition signatures” deemed valid by state officials, according to a court filing by the Texas governor.
While former House Speaker Gingrich submitted 11,050 signatures to the Virginia State Board of Elections, less than 10,000 were verified as registered voters, according to a filing by the candidates.
Santorum submitted more than 8,000 signatures. Former Utah Governor Huntsman didn’t file papers declaring his candidacy in Virginia because he couldn’t meet the signature requirement, according to the filing.
Donald Palmer, secretary of Virginia’s elections board, testified yesterday that almost all 134 Virginia jurisdictions already had printed the Republican primary ballots, which were “at least enough to get through the first two weeks of absentee voting.”
Palmer said the total amount allocated for the primary election in Virginia is $3 million. He said a change at this point would cost possibly “several hundred thousand” dollars.
Virginia’s lawyer, E. Duncan Getchell Jr., questioned the campaigns’ witnesses on when they had begun seeking to obtain the required 10,000 signatures.
Under Virginia’s rules, those seeking to have their names added to the primary ballot can begin seeking signatures on July 1.
Jerry Kilgore, a former Virginia Attorney General, told Gibney that he became the Virginia chairman of the Perry campaign in October. Rachel Robinson, ballot access coordinator for the Gingrich campaign, testified that she didn’t start managing the collection of signatures until November. Santorum’s efforts didn’t start until December, according to his coordinator, Mark Tate.
“I was shocked that nobody was working on these issues until late,” Gibney said at one point during the hearing.
If Gibney’s ruling stands, Paul may have an opportunity in Virginia to see the anti-Romney vote consolidate around his candidacy, which would probably give him a share of the state’s 49 convention delegates.
Paul has vowed to remain in the race until the end as he did in the 2008 primary. His campaign is unique in that he has a base of libertarian supporters who have shown an ability to raise money quickly and in large sums. After putting out a call for contributions on Dec. 16, the Texas doctor collected $4 million in a day.
Perry, who came in fifth in Iowa and sixth in New Hampshire, has said he will reassess his campaign after the South Carolina contest.
An Insider Advantage poll released Jan. 11 showed Romney ahead in South Carolina with 23 percent, Gingrich in second with 21 percent, Santorum at 14 percent, Paul at 20 percent, and Perry with 5 percent support. Santorum, who came in second in Iowa, fell to fifth in New Hampshire.
Gingrich yesterday opened an office in Orlando, Florida and intends to begin airing advertisements there after the South Carolina primary, said Jose Mallea, the campaign’s Florida director.
The case is Perry v. Judd, 3:11-cv-00856, U.S. District Court, Eastern District of Virginia (Richmond).
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