Friday, January 13, 2012

Virginia Ballot will only include Ron Paul and Mitt Romney

In an opinion of nearly unfettered legal accuracy Judge John A. Gibney  of the United States District Court for the Eastern District of Virginia ruled today that Rick Perry, Newt Gingrich, Rick Santorum and John Huntsman would not be added to the Virginia Republican primary ballot in 2012.  Opinion here.

In an attempt to get this published before the long weekend my summary will be brief. 

Laches control the day

Judge Gibney ruled against the excluded candidates based on the equitable doctrine of laches.

"Laches requires the proof of two elements: (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Slip Op. p. 9.

Regarding element one the Judge said "the candidates waited almost half a year before seeking judicial relief . . . [and] displayed an unreasonable and inexcusable lack of diligence."  Slip Op. p. 11.  Regarding element two the Judge said, "it is too late for the Court to allow [the candidates] to gather more signatures--the absentee ballots must go out now."  Slip Op. p. 12.

This is consistent with my warning on January 27, 2012, my analysis of the Perry lawsuit later that day, and my prediction from this morning.

This is the entire case, the rest of the opinion is surplusage for the parties to address on appeal.

Additional points

The Judge ruthlessly mocked my standing argument, although he utilized a hybrid version in the laches analysis.

For those interested look at the major 4th Circuit election law case on the issue of standing quoted in the brief, you may recognize some of the counsel of record.  Miller v. Brown, Slip Op. p. 12.

Finally Judge Gibney slams the argument that the 10,000 signature requirement is unconstitutional going so far as to mock Perry's counsel for not having even raised it for the preliminary injunction.  I took a more measured approach on January 27, but I still agree with all of Judge Gibney's harsh analysis on this point.

Ultimately this means there will be two candidates on the ballot in March.  Only two professional campaigns remain.

Updates to come later...

UPDATE: The 4th Circuit has already denied the emergency appeal.  Always good coverage from Richard Winger, here.


  1. So what about your much earlier comment that they were better off going to the Richmond local Circuit Court - as you suggested the issues surrounding VC 24.2-545 were the real issues and that going to Federal Court was a comparative exercise in wasted effort ?

  2. John[sic] Stewart,
    Just a couple days later I acknowledged that the facts were insufficient to pursue the Circuit Court remedy:

    This did not stop a citizen-litigator from filing, but he appears to have all but abandoned his lawsuit.

    Please say hello to Mr. Colbert for me.