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.

Nebraska State Senator Bill Avery has introduced LB 757, to change the definition of “political party”. Current law says it is a group that polled 5% for any statewide office at the last election. The bill would change this so that it is a group that had polled 5% for a statewide race at either of the last two elections.

The bill also clarifies that if a party runs candidates for U.S. House in all three districts, and they each get at least 5%, that also counts toward meeting the vote test. That had already been policy, but the bill makes it more explicit.

Senator Avery also introduced HB 759, which repeals the requirement that circulators be Nebraska residents. The bill provides that only persons age 18 and above may circulate petitions, and provides that any paid circulator must display an identification number while he or she is petitioning. The person who hires the paid circulator will assign unique identifying numbers for each circulator.

Many election law bills have been introduced in the new Virginia legislative session, but there seem to be no bills to ease ballot access, unless one counts the two bills already mentioned to permit write-ins in primaries. But there is a bill to make primary ballot access more difficult. Senator Mark Obenshain (R-Harrisonburg) has introduced SB 244, which establishes registration by party. It also seems to make it more difficult for parties to remain ballot-qualified, and it seems to make it more difficult for candidates to get on primary ballots, although the bill does not affect the presidential primary.

The bill seems to make it more difficult for a party to remain ballot-qualified by saying that qualified parties can’t maintain their status unless they have registration membership of 15% of the state registration. Then it makes ballot access more difficult for candidates in primaries, by requiring them to submit petitions of 1% of the number of registered voters in that party. Although the bill is not perfectly clear, it implies that only party members could sign a primary petition.

Virginia now has 5,138,037 registered voters. If even one-third of them register as Republicans, a statewide petition to get on the Republican primary ballot would then need 17,126 signatures, and probably only registered Republicans could sign. Current law requires 10,000 signatures for any statewide primary petition, and any registered voter can sign.

The deadline for bills to be introduced in 2012 has already passed. It was 5 p.m. on January 13.