On January 17, the 4th circuit issued an order in Perry v Judd, 12-1067, agreeing with the U.S. District Court that Rick Perry, Newt Gingrich, Rick Santorum, and Jon Huntsman filed their lawsuit against the Virginia ballot access law for presidential primaries too late. Here is the 22-page order. The order says nothing about the constitutionality of the law, but merely says that the lawsuit should have been filed earlier.
The three judges who issued the order are J. Harvie Wilkinson, a Reagan appointee; G. Steven Agee, a Bush Jr. appointee; and Albert Diaz, an Obama appointee. The order does not show which judge is the author.
The judges had to stretch to find any U.S. Supreme Court authority to support the idea that the case was filed too late. The order mentions Williams v Rhodes, but that is a strange citation for this case. George Wallace did not file his 1968 ballot access lawsuit against the Ohio law until July 29, 1968. The petition deadline in Ohio was February 7, 1968. So Wallace waited almost six months after the legal deadline to file in the U.S. District Court, and the U.S. Supreme Court still put him on the ballot. The Perry order doesn’t mention that the U.S. Supreme Court put Wallace on the ballot; instead it points out that in that same case, the U.S. Supreme Court refused to put the Socialist Labor Party on the ballot. But the only reason the SLP didn’t get on the Ohio ballot in 1968 was that it had asked the U.S. Supreme Court for relief after the ballots were already being printed. By contrast, Perry did file his lawsuit before the Virginia ballots were printed.
The Virgina 4th circuit order also mentions Fulani v Hogsett, a 7th circuit opinion in which the 7th circuit felt that Lenora Fulani had filed her 1988 Indiana lawsuit too late. But Fulani v Hogsett was not a case in which a candidate was trying to get on the ballot. It was a case in which Fulani sued to remove George H. W. Bush and Michael Dukakis from the November 1988 ballot, on the grounds that they had failed to submit the names of their presidential elector candidates by the legal deadline. Thanks to Rick Hasen for the link.