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.

Prediction: Perry ballot access lawsuit in Virginia will not result in favorable preliminary injunction

It is approximately 11:30 AM on Friday January 13, hopefully this prediction gets out before a ruling is made.

Although it appears that Judge Gibney believes that the petitioner residency requirement for signature gatherers in Virginia is unconstitutional (it is an open question in the 4th Circuit), I believe the preliminary injunction to get Perry, and the others on the ballot will be denied.

The main reason is that the relief requested is equitable, and Perry waited too long to bring the suit when he could have done so in the fall.

Prediction brought to you by your northern Virginia "non-domestic equity" practitioner.

Tuesday, January 10, 2012

Joe Morrissey wants to tax you for choosing plastic over paper

Desired partly by environmentalists, partly by people who like taxes, partly by the nanny-statists who think the government should intrude on everything in our lives, and partly by those who think that paper is so preferred over plastic that everyone should think like them, the plastic bag tax may be coming to Virginia.

Del. Joe Morissey (D - Highland Springs) (storied past ignored for purposes of this post) is proposing a $.20 tax on all plastic bags "provided to the consumer by retailers in grocery stores, convenience stores, or drug stores."  HB 124.  In addition to the tax, retailers are incentivized to impose the tax by allowing the retailer to keep a portion of the tax, and by suffering substantial penalties for failing to charge for plastic bags.

The odd result of this is that instead of charging for plastic, most stores in Virginia would likely convert to an all paper bag system.  No tax would need to be collected, and consumers would lose their choice among their shopping bag options.  Next they will regulate the shape and thickness of paper bags to ensure optimum recyclability and minimum landfill usage. 

I am sure the citizens of the Commonwealth of Virginia appreciate the government overreach in controlling our shopping habits.

Not to worry.  This is exactly the kind of bill that dies an early death in subcommittee.