As noted earlier, on January 13, a U.S. District Court Judge ruled that the Virginia ballot access law for presidential primaries is almost certainly unconstitutional, but that Rick Perry, Newt Gingrich and Rick Santorum should not be put on the ballot because of “laches.” “Laches” means the plaintiffs failed to file the lawsuit in time, or otherwise are themselves responsible for defeating their own lawsuit, due to some procedural legal error. The Virginia decision says the lawsuit was filed too late.
However, other precedents do not agree with the “laches” decision. In every other ballot access case in which the state defended itself by arguing that a ballot access lawsuit had been filed too late, the judge ruled that this is not a proper defense of the state law if at the time of the court hearing, the ballots had not been printed. In Nader 2000 Primary Committee v Hechler, 112 F.Supp.2d 575 (2000), the case most on-point with the Perry lawsuit, Ralph Nader did not file his lawsuit until September 7, only 61 days before the general election of November 7. The judge put Nader on the ballot, even though the state argued that Nader was guilty of laches. The key was that the West Virginia ballots, for the most part, had not been printed yet. The Nader West Virginia decision was won partly because the state had unconstitutionally barred out-of-state circulators. Nader did not submit enough valid signatures, but he still was put on the ballot.
Other cases in which a ballot access lawsuit was filed late, but the court still ordered the candidate put on the ballot, despite the “laches” argument made by the state, are McInerney v Wrightson, 421 F.Supp. 726 (Delaware 1976); McCarthy v Askew, 421 F.Supp. 1193 (Florida 1976); and Brown v Davidson, an unreported state court case in Colorado in 2004, won by Walt Brown, the Socialist Party presidential nominee.
The U.S. Supreme Court seems to have established the precedent that “laches” only apply if, by the time the lawsuit has a hearing on injunctive relief, the ballots have already been printed. In Williams v Rhodes, the U.S. Supreme Court put George Wallace on the ballot, because at the time he asked for relief from the U.S. Supreme Court in 1968, Ohio had not yet printed its ballots. The U.S. Supreme Court, in the same year, did decline to put the Socialist Labor Party on the Ohio ballot, on the grounds that the SLP had not asked for injunctive relief until after the ballot-printing process had started. For news on the Perry appeal, see this Politico article.