Republican presidential candidate and Texas Gov. Rick Perry has appealed a federal judge’s ruling that bars him and three other GOP contenders from appearing on Virginia’s March 6 primary ballot.
In a motion filed Sunday with the U.S. Court of Appeals for the 4th Circuit, Mr. Perry’s attorneys argue that the U.S. District Court in Richmond abused its discretion Friday when it ruled Mr. Perry’s lawsuit was filed unreasonably late in the proceedings.
“Candidates for the presidency are focused on running for president, not on fighting legal battles to pre-emptively hold state election laws unconstitutional,” the attorneys wrote.
Attorneys for former House Speaker Newt Gingrich filed a notice of appeal Saturday in U.S. District Court but did not take immediate action for relief, as did Mr. Perry’s. The 4th Circuit ordered the state to file a response to Mr. Perry’s emergency motion for injunction by Monday.
In the ruling Friday, federal District Court Judge John A. Gibney Jr. delivered a judicial spanking to Mr. Perry and the other candidates — Mr. Gingrich, former Pennsylvania Sen. Rick Santorum, and former Utah Gov. Jon Huntsman Jr. — saying their complaint amounted to sour grapes.
“They knew the rules in Virginia many months ago,” Judge Gibney said in turning down the request to reopen the process. “They waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot. Then, on the eve of the printing of absentee ballots, they decided to challenge Virginia’s laws. In essence, they played the game, lost, then complained that the rules were unfair.”
The judge’s decision allows absentee ballots to go out as planned with Texas Rep. Ron Paul and former Massachusetts Gov. Mitt Romney as the only GOP presidential candidates listed. Mr. Perry’s appeal asks for an injunction placing his name on the ballot, or another barring the state from ordering, printing or mailing ballots before the court makes a decision on the appeal.
The four candidates had argued against the constitutionality of Virginia’s requirement that candidates secure 10,000 signatures, including 400 from each of the state’s 11 congressional districts. The rules also require those gathering the signatures be Virginia residents.
Mr. Perry and Mr. Gingrich failed to meet the signature requirement; Mr. Santorum and Mr. Huntsman failed to meet the deadline.
Judge Gibney said that but for the timing, he would have ruled in favor of the challenge to the residency requirement, but still would have upheld the 10,000-signature rule.
Joseph M. Nixon, counsel for Mr. Perry, argued that the case dealt with voting rights, the “cornerstone of democracy.” He said the residency requirement for ballot-gatherers was a violation of free political speech.
“The purpose of speech is to affect the outcome of how we choose to govern ourselves,” he said. “The process is meaningless if the list of candidates is unconstitutionally and arbitrarily restricted.”
E. Duncan Getchell Jr., Virginia solicitor general, argued that the defendants failed to demonstrate they were likely to succeed on the merits of the case, a prerequisite for a temporary injunction that would place them on the ballot.
The state also would have violated the statutes in a consent decree with the Justice Department had it added more names to the ballot, he argued.
Mr. Romney’s campaign has argued that the other GOP campaigns — with the exception of Mr. Paul’s — are not built for the long, national campaign that the Republican presidential primary is supposed to entail, pointing to ballot access as a key test.
Mr. Huntsman, for example, failed to get on the ballot for Arizona’s Feb. 28 primary, though the state borders Utah where he governed for four years. And the state’s requirements are so lax that nearly two dozen other candidates managed to make it.
The campaigns for Mr. Perry and Mr. Gingrich hired petition-gathering firms to aid them in the process in Virginia, but the Huntsman campaign did not after learning the cost would be in the range of $100,000.
Judge Gibney, at times, seemed incredulous to the argument that if candidates were added, new ballots couldn’t be printed in a timely manner.
Donald Palmer, secretary of the state Board of Elections, said that some of the reprinted ballots wouldn’t be ready in 14 days. Military and overseas absentee ballots must be sent out at least 45 days before the election, putting the deadline at Jan. 21.
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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