U.S. District Court Says Virginia Residency Requirement is Almost Certainly Unconstitutional, but Denies Injunctive Relief Because Lawsuit was Filed Too Late

On January 13, U.S. District Court Judge John A. Gibney issued a 22-page opinion in Perry v Judd, 3:11-cv-856. He refused to order the Virginia Board of Elections to place any more presidential candidates on the Republican presidential primary ballot, for the sole reason that they filed the lawsuit too late. However, he said the residency requirement for circulators “is highly unlikely to withstand the First Amendment challenge.” Also, “the court agrees with the rationale in Nader v Brewer (Nader v Brewer is a 9th circuit opinion in which the Arizona ban on out-of-state circulators was struck down).”

On page 17 of the order, the judge said “The Board contends that the residency requirement is necessary to protect the Commonwealth’s ability to subpoena petition circulators…The Board has done nothing to demonstrate how such a requirement would fail, beyond stating that ‘direct subpoena authority is more effective than an undertaking to be subject to out-of-state jurisdiction.’ Moreover, the Court is skeptical that subpoena power over out-of-state circulators is a compelling state interest — the critical signature on the petition is not that of the circulator, but that of the voter. For these reasons, the Court believes that the residency requirement for petition circulators will likely be declared unconstitutional, and that the plaintiffs will ultimately prevail.”


U.S. District Court Says Virginia Residency Requirement is Almost Certainly Unconstitutional, but Denies Injunctive Relief Because Lawsuit was Filed Too Late — No Comments

  1. Hmmm. How come there are notary publics — for mere things like wills, land sales, candidate qualification affidavits, etc. etc. ???

    One more MORON judge ??? Duh.

  2. There is a notary requirement in Virginia.

    Getting registered Virginia voters to do all the collecting is a problem. Didn’t Paul Jacob’s criminal conspiracy in case in OK get thrown out because the law was unconstitutional?

    I need to read the decision. Could be some good stuff.

  3. #2, it all depends on your definition of “win”. If “win” means getting rid of the out-of-state circulator ban, it is a win. If “win” means more candidates put on the ballot, it is not a win for those candidates or for the voters who wanted to vote for them.

  4. Can corporate “persons” circulate petitions even if they’re not residents?

    Richard – come to think of it, how would the residency of corporate “persons” be established, anyway? Diver’s license? Copy of a phone bill?

    Personally, I hope corporate “persons” aren’t allowed to circulate petitions. There’s nothing more creepy than being approached by a corporate “person” when you’re on your way into the supermarket. They’re…I don’t know…so…so…impersonal, don’t you think?

  5. Virginia law says that the circulator must be registered to vote in Virginia or qualified to register to vote, so a corporate “person” could not meet that requirement. Circulator’s statements on the completed pages must also be notarized.

    The same registered or qualified to register requirement applies to petition circulators for Virginia statewide elections. For district (or local) offices, the circulators must also be registered or eligible to register to vote for the office (i.e. in the election district).

    I understand, to a degree, the free speech/no borders argument for the office of president (even though the primary does not nominate anyone, just bind state delegates, to be selected in June, on the first ballot at the national convention in August unless released earlier). I’m curious as to whether Mr. Winger and the readers here believe that the election district resident requirement for circulators of petitions for other offices is potentially “unconstitutional” — and why. Thank you.

  6. #6, petitioning is protected free speech activity. Governments can’t take away free speech rights based on where the speaker lives. Campaign consultants, campaign treasurers, people who make telephone calls to voters, are all free to live anywhere. Why should we single out petitioners and worry about where they live?

  7. 6 –

    I’d like to expand on Richard’s excellent point. The USSC has told us that corporate “persons” can purchase as much free speech as they desire. Super PAC’s have already purchased over $30 million in free speech, and that’s just to sort out which of a few Republican wannabes get to go home early. Now just imagine how much “free speech” will be purchased by corporate “persons” by the time we get through the general election. If corporate “persons” eventually purchase oh, say a quarter or a half billion dollars worth of “free speech” by November of this year, do you really think anyone will give a rat’s ass whether some paid “circulator” crossed a state line to pick up a few signatures for Rick Perry or Michele Bachman in 2011? It would be like a cop issuing a parking ticket to a car illegally parked in New Orleans just after Katrina hit.

    I suggest you join Richard and embrace the new American political reality, which is that corporate “persons” can now purchase our legislators and our chief execs, although perhaps not a eagerly as he has. It’s now a free market of ideas – just make sure you bring enough cash to shop for the people who share your ideas.

    Oh wait, I see you’re not a corporate “person.”

    Never mind.

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