In the matter of Lux v. Judd, the Fourth Circuit today ruled that a portion of Va. Code § 24.2-506 may be unconstitutional. I wish I had a clearer ruling then that, but that is all we have . . .
Why couldn't Herb Lux be on the ballot?
Herb Lux, a candidate for Virginia's Seventh Congressional District, was kept off the ballot in 2010 despite submitting the proper declaration of candidacy form, and total number of signatures of voters within the district. It turns out that the petitions containing signatures of voters within the district must be witnessed by a resident of the district pursuant to Va. Code § 24.2-506. Herb Lux, witnessed all but 15% of the necessary signatures for him to be on the ballot. But Herb Lux was not a resident of the Seventh Congressional District. He was kept off the ballot in 2010, his federal case was dismissed, and today's ruling is the result of his appeal.
The argument below: relying on old precedent
Relying on old, but binding precedent, the District Court Judge determined that the residency requirement for witnessing signatures was Constitutional as it shows the government interest of requiring "some indication of geographic as well as numerical support." p. 11 (citing Libertarian Party of Va. v. Davis, 766 F.2d 865, 869-870 (4th Cir. 1985)). Since that time, two Supreme Court decisions, both analyzing Colorado law, determined that a residency requirement for witnessing signatures is not necessary to show geographic or numerical support when there is a requirement for a critical mass of signatures on the petitions themselves.
Today's ruling resolves few rights
The end result was that this case was reversed and remanded. The District Court Judge is to apply the proper standard of review, and take new evidence on the importance of the state interest in passing Va. Code § 24.2-506. The Commonwealth of Virginia may now present new arguments to support the Constitutionality of the statute just as long as the argument is not "proof of geographic or numerical support."
What does this mean for Herb Lux?
He did not get to run in 2010. He has been mired in litigation since July 13, 2010. He may still lose this case. It is not clear where Congressional lines for 2012 will be, so who knows if he can witness his own collected signatures.
A special thanks to Bopp, Coleson & Bostrom, of Terre Haute, Indiana for bringing exciting election law cases to the Commonwealth of Virginia, and for keeping the two party system on its toes. We hope to see them back in the Fourth Circuit soon perhaps filing an amicus brief in the Danielczyk case.