Perry et al v. Judd et al Opposition To Motion For Injunction

8/3/2019 Perry et al v. Judd et al Opposition To Motion For Injunction

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Record No. 12-1067

_________________________________

United States Court of Appeals

For the Fourth Circuit

_________________________________

THE HONORABLE RICK PERRY,Plaintiff-Appellant-Movant

THE HONORABLE NEWT GINGRICH, THE HONORABLE JON

HUNTSMAN, JR., AND THE HONORABLE RICK SANTORUM,Intervenor-Plaintiffs,

v.

CHARLES JUDD, KIMBERLY BOWERS, AND DON PALMER,members of the Virginia Board of Elections, in their official capacities,

Defendants-Appellees-Respondents.

________________

Appeal from the United States District Court

for the Eastern District of Virginia

Richmond Division

_________________

RESPONSE TO GOVERNOR PERRY'S EMERGENCY MOTION

FOR INJUNCTION PENDING APPEAL

KENNETH T.CUCCINELLI,II

Attorney General of Virginia

E.DUNCAN GETCHELL,JR.

(VSB#14156)

Solicitor General of Virginia

[email protected]

WESLEYG.RUSSELL,JR.(VSB #38756)

Deputy Attorney General

JOSHUAN.LIEF

(VSB #37094)

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

900 East Main Street

Richmond, Virginia 23219Telephone: (804) 786-2436

Counsel for Charles Judd, Kimberly

Bowers and Don Palmer


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................. iiI. INTRODUCTION AND STATEMENT OF FACTS .................... 1II. GOVERNOR PERRY'S MOTION IS GOVERNED BY AN

INDISPUTABLY CLEAR STANDARD. ...................................... 4III. GOVERNOR PERRY IS CLEARLY GUILTY OF LACHES AND

HIS RIPENESS ARGUMENT TO THE CONTRARY IS

FOUNDED ON AN ERROR OF LAW. ........................................ 5IV. ADDITIONAL REASONS FOR DENYING THE RELIEF

REQUESTED ............................................................................. 10A. Under Any Standard Governor Perry Lacked Standing When

He Filed His Suit. .............................................................. 10B. It Is Not Indisputably Clear That Governor Perry Is Entitled

To Prevail On The Merits. ................................................ 13

C. It Is Not Indisputably Clear That Governor Perry Will SufferIrreparable Harm From The Residency RequirementIn The Absence Of An Injunction. .................................... 15

D. The District Court's Findings Of Harm In Support Of ItsLaches Findings Defeats Any Claim That It Is Indisputably

Clear That The Balance Of Equities And The Public Interest

Favor An Injunction On Appeal. ....................................... 16CONCLUSION .................................................................................... 17CERTIFICATE OF SERVICE ............................................................. 19


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TABLE OF AUTHORITIES

Page

CasesAm. Party of Tex. v. White, 415 U.S. 767 (1974) ................................. 15

Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................................... 15

Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) ................................. 13

Brown v. Gilmore, 533 U.S. 1301 (2001) (Rehnquist, C.J., in chambers)

............................................................................................................ 5

Buckley v. American Constitutional Law Foundation, 525 U.S. 182

(1999) .......................................................................................... 13, 14

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ............... 9

Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982) ........ 7

Communist Party of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist,

J., in chambers) .................................................................................. 5

Hart v. Secretary of State, 715 A.2d 165 (Me. 1998) ........................... 14

Initiative & Referendum Ins. v. Jaeger, 241 F. 3d 614 (8th Cir. 2001)14

Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C,

1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999) ...................... 14

Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011

U.S. Dist. LEXIS 23383 (D.N.J. March 7, 2011) ............................. 12

Jenness v. Fortson, 403 U.S. 431 (1971) ............................................. 16

Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008) ........... 8

Kean v. Clark, 56 F. Supp.2d 719 (S.D. Miss. 1999)........................... 14

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................... 11, 12

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .............................. 9


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Lux v. Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers) 5, 15

Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va. 2010) ................... 13

Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................... 7

Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir.

1997) ................................................................................................... 9

Mirant Potomac River, LLC v. EPA, 577 F.3d 223 (4th Cir. 2009) .... 11

Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ..................... 15

Muntaqim v. Coombe, 449 F.3d 371 (2d Cir. 2006) (en banc) (per

curiam) .............................................................................................. 11

Nader v. Keith, 385 F. 3d 729 (7th Cir. 2004) ....................................... 7

Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312 (1986)

(Scalia, J., in chambers) ..................................................................... 5

Public Citizen v. Miller, 813 F. Supp. 821 (N.D. Ga. 1993), aff'd, 992

F.2d 1548 (11th Cir. 1993) ................................................................. 6

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ............. 12, 13

Smith v. Bd. of Election Commrs for the City of Chi., 587 F. Supp. 1136

(N.D. Ill. 1984) .................................................................................... 7

Storer v. Brown, 415 U.S. 724 (1974) .................................................. 15

Va. Soc'y for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) .......... 8

Westermann v. Nelson, 409 U.S. 1236 (1972) (Douglas, J., in chambers)

.......................................................................................................... 17

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................ 4

Wis. Right to Life State PAC v. Barland, No. 11-2623, 2011 U.S. App.

LEXIS 24566 (7th Cir. Dec. 12, 2011) ................................................ 8


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StatutesVa. Code Ann. 24.2-545(B) ................................................................ iv


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I. INTRODUCTION AND STATEMENT OF FACTSGovernor Perry recites that he "filed this lawsuit because he

believes he was unconstitutionally restricted from having his name

appear alongside others on the ballot for the Republican primary for the

Commonwealth of Virginia." (Doc. 3-1). However, what keeps him off

the ballot is the "plainly constitutional," (Case 3:11-cv-00856-JAG Doc.

73 at 12), requirement of Va. Code Ann. 24.2-545(B) that a

presidential primary candidate obtain 10,000 valid signatures statewide

with at least 400 in each of Virginia's eleven congressional districts.

While Governor Perry now complains about the statutory requirement

that each petition circulator be voter eligible somewhere in Virginia,

rather than having challenged that requirement at a time when success

would have allowed him to use nonresident circulators, he attempted to

comply with the requirement by hiring a private vendor. Furthermore,

at this late date, the district court necessarily found that "the Court can

only speculate whether [Perry and others] would have been placed on

the ballot" had they been permitted to use out-of-state circulators. (Id.)

With respect to timing, Governor Perry's campaign was permitted

to "collect the requisite signatures for ballot access between July 1, 2011


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and December 22, 2011." (Id. at 10). Although Governor Perry declared

for the presidency on August 13, 2011 and "filed his Statement of

Candidacy with the Federal Election Commission on August 15, 2011,"

he only "signed and affirmed . . . his Declaration of Candidacy for the

Commonwealth of Virginia on October 13, 2011." (Id. at 6). Governor

Perry's national campaign manager, Joe Allbaugh, testified that he

joined the campaign October 23, 2011 and that thereafter the vendor

was hired. This was necessarily less than two months before the

petitions were due even though the Perry campaign "knew the rules in

Virginia many months ago." (Id. at 1). As the district court put it: "In

essence, they played the game, lost, and then complained that the rules

were unfair." (Id. at 2).1

1The conjectural nature of Governor Perry's claim is emphasized by an odd

circumstance. Governor Perry personally certified 11,911 signatures to the State

Board of Elections on December 23, 2011 (Defendants' Ex. 6) (App. A), despite

now acknowledging that approximately 6,000 signatures were filed. (Case 3:11-

cv-00856-JAG Doc. 73 at 6 n.4). According to his campaign manager, Governor

Perry based his certification upon a claim of the vendor. The unexpected

hospitalization of the vendor's Virginia agent left the campaign unable to determine

whether the other 5,911 signatures were in fact collected. Hence, it may be that the

circulator limitations did not even conjecturally prevent the Perry campaign from

collecting 10,000 signatures. It is entirely possible that the critical number of

signatures were simply lost.


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With respect to harm to defendants and the public interest if

names were to be added to the ballot at this late date, the district court

found the following with ample evidentiary support:

This lack of diligence has significantly

harmed the defendants. The Board established a

reasonable, necessary, and comprehensive

schedule of tasks leading to the primary election.

Among those tasks is the printing of absentee

ballots. To comply with federal law, absentee

ballots must be distributed on or before January

21, 2012. To meet this deadline, the Board set atimetable for the localities to design ballots, order

them from printers, proofread mock-ups, receive

them, and mail them out. By January 13, 2011,

the date of the preliminary injunction hearing,

the local boards should have received absentee

ballots, and begun the process of mailing them

out. The filing of this suit, however, has changed

the Board's careful scheduling into a chaotic

attempt to get absentee ballots out on time. Thisalone amounts to damage that satisfies the laches

requirements. Don Palmer, the Secretary of the

State Board of Elections, testified without

contradiction that printing ballots is complex and

requires a number of technical steps to imbed

information into the ballots themselves and to

program computers to count them. He also

testified that, as of this date, absentee ballots

cannot be prepared before they must be available.

(Id. at 12) (footnote and citation omitted).

Governor Perry does two things in his Emergency Motion. First,

he asks this Court to conclude that the district court "abused its


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discretion" in finding laches. (Doc. 3-1 at 6). Second, he seeks the

benefit in this Court of the district court's weighing of the four factors

set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 19

(2008).2 (Doc. 3-1 at 5, 12-13). These arguments misapprehend the

standard applicable to emergency motions for injunction on appeal.

II. GOVERNOR PERRY'S MOTION IS GOVERNEDBY AN INDISPUTABLY CLEAR STANDARD.

"TheAll Writs Act, 28 U.S.C. 1651(a), is the only source of . . .

authority to issue . . . an injunction" preventing "the enforcement of a

presumptively valid state statute." Brown v. Gilmore, 533 U.S. 1301,

1303 (2001) (Rehnquist, C.J., in chambers). "Such an injunction is

appropriate only if 'the legal rights at issue are indisputably clear.'"

(citing Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S.

1312, 1313 (1986) (Scalia, J., in chambers)) (quoting Communist Party

2The only way to reconcile the district court's weighing of the Winter factors in

favor of Governor Perry on the residency requirement with its ruling that "[n]o one

can seriously argue that the [10,000 signature] rule is unduly burdensome" is to

view the ruling on the residency voter eligibility requirement as a hypothetical or

advisory statement of what the district court would have done had a timely

challenge been mounted against that requirement. This conclusion is reinforced by

the district court's recognition that in the world as we find it "[t]he Court . . . cannot

fashion relief that does not include compliance with the 10,000 signature

requirement." (Case 3:11-cv-000856-JAG Doc. 73 at 20).


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of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist, J., in chambers).

Gilmore, 533 U.S. at 1303.

The indisputably clear standard can be frustrated by a dissent in

the case under review, Gilmore, 533 U.S. at 1303, by express

reservation of an issue in an opinion of the Supreme Court, Lux v.

Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers), and by a

circuit split on the issue. Id. To meet the indisputably clear standard

the law must be clearly settled, and on the issue advanced by Governor

Perry here, it is not.

III. GOVERNOR PERRY IS CLEARLY GUILTY OFLACHES AND HIS RIPENESS ARGUMENT TO THE

CONTRARY IS FOUNDED ON AN ERROR OF LAW.

Governor Perry claims that he is not guilty of laches because his

First Amendment claim against the circulator limitations was not ripe

until he failed to be included on the ballot. (Doc. 3-1 at 8-9). The

district court rightly rejected this argument, saying:

Here, the plaintiffs claim a loss of their

First Amendment rights of free speech and

association. Any injury arose when theCommonwealth limited the categories of people

who could spread their message, by banning

petition circulators from out-of-state. The first

day the plaintiffs were unable to communicate


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their message effectively was the first day they

could circulate petitions.

(Case 3:11-cv-00856-JAG Doc. 73 at 10).

Governor Perry's authorities are not to the contrary. In Public

Citizen v. Miller, 813 F. Supp. 821, 827 (N.D. Ga. 1993), aff'd, 992 F.2d

1548 (11th Cir. 1993), laches was not found where a suit challenging a

majority vote requirement was not brought until after an election in

which the candidate supported by the challengers failed to receive a

majority of votes although he did receive a plurality. The analysis

rested on the consideration that the claim would not have been clearly

ripe before the election because the contingency was not reasonably

certain to occur. Here, the claimed injury, an inability to have non-

Virginians circulate petitions, was not contingent, but rather occurred

as soon as Governor Perry declared his candidacy.

Nor is it true that even if "Movant's injuries began when he first

filed his candidacy, he cannot be charged with a lack of diligence prior

to submitting his petition signatures, as he reasonably expected to be

able to acquire the number required by section 24.2-545(B) of the

Virginia Code." (Doc. 3-1 at 9) (citing Smith v. Bd. of Election Commrs


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for the City of Chi., 587 F. Supp. 1136, 1142 (N.D. Ill. 1984)) (citing

Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982)).

This is not even the law in the Seventh Circuit. Nader v. Keith,

385 F. 3d 729, 736 (7th Cir. 2004) (denying a motion for preliminary

injunctive relief against similar ballot access requirements inter alia,

that the "suit [was] filed so gratuitously late in the campaign season . . .

only a little more than four months before the election," noting that the

plaintiff "could easily have filed suit at the same time he declared his

candidacy, and "[t]here would be no question of his standing to seek

such relief in advance of the submission or even collection of any

petitions.") (emphasis added).

The courts of appeals, including the Fourth Circuit, have held

repeatedly that First Amendment challenges to election laws brought

well in advance of their application are ripe for judicial review. See

Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (holding that a pre-

enforcement challenge to Virginia's open primary laws as violating

"plaintiffs' First Amendment rights to freely associate" was "fit for

judicial review" despite the law not being capable of being applied for

two years because it "present[ed] a purely legal question" and the


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hardships favored early resolution, because the "primary election likely

would be resolved before an action brought" post-enforcement "could

reach final decision."); see also, Wis. Right to Life State PAC v. Barland,

No. 11-2623, 2011 U.S. App. LEXIS 24566, at *17-*19 (7th Cir. Dec. 12,

2011) (restating the rule that "in challenges to laws that chill protected

speech, the hardship of postponing judicial review weighs heavily in

favor of hearing the case" and holding that the First Amendment

challenge to a state election law was "ripe for judicial resolution");Kan.

Judicial Review v. Stout, 519 F.3d 1107, 1116, 1118 (10th Cir. 2008)

(holding that "[t]he principle that one does not have to await the

consummation of threatened injury to obtain preventive relief is

particularly true in the election context" in finding a First Amendment

challenge to state law restricting petition circulation ripe for judicial

review (internal quotation marks omitted)); cf. Va. Soc'y for Human Life

v. FEC, 263 F.3d 379, 389-90 (4th Cir. 2001) (holding that a challenge to

an FEC regulation of political speech was "ripe for review" because the

regulation required the plaintiff "'to adjust its conduct immediately'"

(quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990)));

Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129, 132, 133


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(8th Cir. 1997) (holding that a "pre-enforcement challenge to [an FEC

regulation was] suitably ripe. . . . because [the regulation] allegedly

chill[ed] protected First Amendment activity."); Chamber of Commerce

v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (holding that a "party has

standing to challenge, pre-enforcement, . . . the constitutionality of a

statute if First Amendment rights are arguably chilled, so long as there

is a credible threat of prosecution," and, accordingly, rejecting a

ripeness argument because "[t]he issue presented is a relatively pure

legal one that subsequent enforcement proceedings will not elucidate").

Governor Perry's claim that defendants have suffered no prejudice

(Doc. 3-1 at 10-12) is demonstrably wrong given the detailed finding of

the district court quoted in the Introduction. Supra at I, 1-2. Governor

Perry's argument - offered without supporting citations - that the

ballots had not been printed as of the date of the district court hearing

(Doc. 3-1 at 10-11) is contrary to the uncontroverted testimony of

Donald L. Palmer that almost one hundred percent of jurisdictions had

printed some ballots and that reprinting would cost hundreds of

thousands of dollars, threaten disruption, and ensure that some early

and handicapped voters would not have access to ballots when they


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applied for them. The argument that Governor Perry only delayed two

business days in bringing suit simply recycles his erroneous ripeness

argument, and thus, is similarly incorrect.

IV. ADDITIONAL REASONS FOR DENYINGTHE RELIEF REQUESTED

A. Under Any Standard Governor Perry LackedStanding When He Filed His Suit.

As the district court observed, to have standing "a litigant must

demonstrate: (1) a distinct and palpable injury, (2) a fairly traceable

causal connection between the claimed injury and the challenged

conduct, and (3) a substantial likelihood that the injury is redressable

by the relief requested." (Case 3:11-cv-00856-JAG Doc. 73 at 13)

(citations omitted). It is well established that a claimed injury is not

redressable if it is caused by a legal act as in the case of requiring

10,000 signatures or is caused by the actions of a third party as

with the possibility that the vendor obtained 10,000 valid signatures

but lost almost half of them. Governor Perry is not being denied a place

on the ballot because of the circulator residency/voter eligibility

requirement. He is being denied a place on the ballot because he did

not meet the constitutionally sound requirement of submitting 10,000

valid signatures by the constitutionally valid deadline. This


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circumstance made his claim nonredressable at the time suit was filed.

See Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th Cir.

2009) (No standing because injury "flow[ed] from Virginia's

Nonattainment Provisions" and hence could "not be fairly traced to

EPA's approval of Virginia's CAIR SIP"); Muntaqim v. Coombe, 449

F.3d 371, 376 (2d Cir. 2006) (en banc) (per curiam) (holding that an

inmate's "inability to vote in New York arises from the fact that he was

a resident of California, not because he was a convicted felon subject to

the application of New York Election Law," and thus that "he has

suffered no 'invasion of a legally protected interest'" as a result of his

felon status, because "there is no causal connection between New York

Election Law . . . and [the inmate's] inability to vote in New York, and a

favorable decision of this Court on his claim that New York Election

Law . . . violates the VRA would do nothing to enfranchise him."

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)));

Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011

U.S. Dist. LEXIS 23383, at *15-17 (D.N.J. Mar. 7, 2011) (holding that

certain plaintiffs lacked standing to challenge the constitutionality of a

federal gambling prohibition on the ground "that a favorable ruling


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would not redress plaintiffs' asserted injury. If PASPA were found

unconstitutional, New Jersey law would still prohibit the sports

gambling activities plaintiffs and their members seek to legalize."). See

also, Lewis, 518 U.S. at 357, 360 (The scope of injunctive relief for a

constitutional violation may not exceed the scope of the violation itself.).

Because his failure to obtain 10,000 signatures is sufficient to keep him

from being on the ballot independently of any other factor, he lacks

standing to challenge the independent requirement that petition

witnesses reside in the Commonwealth.

Similarly, if the vendor was the source of the injury, Governor

Perry also lacks standing. There must be "a causal connection between

the injury and the conduct complained of -- the injury has to be 'fairly

trace[able] to the challenged action of the defendant, and not . . . the

result [of] the independent action of some third party not before the

court.'" Lujan, 504 U.S. at 560-61 (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 41-42 (1976));Bishop v. Bartlett, 575 F.3d 419,

421-22, 425 (4th Cir. 2009) (holding that a party "challeng[ing] the

process by which a proposed state constitutional amendment was placed

before voters" suffered an injury in fact by being deprived of the right to


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vote before his local government "issue[d] bonds for [a] certain . . .

development project[]," but failed to show that the denial of his right to

vote was caused by the process by which the constitutional amendment

was ratified, rather than the vote of his fellow citizens, which

constituted '"the independent action of some third party not before the

court.'" (quoting E. Ky. Welfare Rights Org., 426 U.S. at 41-42)). Thus,

if the vendor Governor Perry chose caused him not to obtain 10,000

valid signatures for medical reasons, the Governor lacks standing to

challenge the requirement that petition witnesses reside in the

Commonwealth.

B. It Is Not Indisputably Clear That Governor Perry IsEntitled To Prevail On The Merits.

Plaintiff in Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va.

2010), challenged a circulator/witness requirement for congressional

elections that such persons be voter qualified within the congressional

district. The Supreme Court inBuckley v. American Constitutional Law

Foundation, 525 U.S. 182, 195 n.16, 197 (1999), had expressly reserved

the question of whether a state residency requirement was a valid anti-

fraud device because it insured that petition circulators were within the

subpoena power of the state. 528 U.S. at 197. The Eighth Circuit had


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also upheld a state residency requirement in Initiative & Referendum

Ins. v. Jaeger, 241 F. 3d 614, 615-17 (8th Cir. 2001) (citing Kean v.

Clark, 56 F. Supp. 2d 719, 728-29, 732-34 (S.D. Miss. 1999) and

Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C,

1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999)); seealso Hart v.

Secretary of State, 715 A.2d 165, 168 (Me. 1998) (upholding state

residency requirements). Finally, the Supreme Court in American

Constitutional Law Foundation assumed in strong dicta that state voter

eligibility requirements were valid proxies for the elimination of felons,

illegal aliens, and minors from the circulator pool. 525 U.S. at 195 n.16.

When Lux sought an emergency injunction on appeal, it was

denied in the Fourth Circuit without opinion. Chief Justice Roberts in

chambers denied an injunction on appeal against the district residency

requirement based upon the Supreme Court's reservation of the

question of state residency inAmerican Constitutional Law Foundation

and the circuit split. Together these defeated any showing that

entitlement to relief was indisputably clear. Lux, 131 S. Ct. at 6-7.

Because we are dealing with the very type of state residency

requirement reserved by the Court in American Constitutional Law


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Foundation and because the circuit split persists, Governor Perry

cannot satisfy the indisputably clear standard for likelihood of success

on the merits.

C. It Is Not Indisputably Clear That Governor Perry WillSuffer Irreparable Harm From The Residency

Requirement In The Absence Of An Injunction.

In the first place, there is no free-standing constitutional right to

be on the ballot. Munro v. Socialist Workers Party, 479 U.S. 189, 194

(1986) ("States have an 'undoubted right to require candidates to make

a preliminary showing of substantial support in order to qualify for a

place on the ballot.'" (quotingAnderson v. Celebrezze, 460 U.S. 780, 788-

89 n. 9 (1983)));Am. Party of Tex. v. White, 415 U.S. 767, 788-89 (1974)

("requiring independent candidates to evidence a 'significant modicum

of support' is not unconstitutional." (footnote omitted)); Storer v. Brown,

415 U.S. 724, 732 (1974) ("'There is surely an important state interest

in requiring some preliminary showing of a significant modicum of

support before printing the name of a political organization's candidate

on the ballot -- the interest, if no other, in avoiding confusion, deception,

and even frustration of the democratic process at the general election.'"

(quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971))). And, because it


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is not indisputably clear that the circulator restrictions are invalid

but it is clear that the 10,000 signature requirement is valid

Governor Perry cannot satisfy the irreparable harm requirement.

D. The District Court's Findings Of Harm In Support OfIts Laches Findings Defeats Any Claim That It Is

Indisputably Clear That The Balance Of Equities And

The Public Interest Favor An Injunction On Appeal.

There is uncontraverted evidence incorporated into the district

court's findings on laches that Governor Perry's "lack of diligence has

significantly harmed the defendants." (Case 3:11-cv-00856-JAG Doc. 73

at 11). If a single dissent is sufficient to defeat the indisputably clear

standard, then this finding of significant harm likewise defeats it.

This is not altered by the sparse analysis of the balance of the

equities and the public interest found in the opinion of the district

court. (Id. at 20-21). The statement that "[a]n injunction enjoining the

Commonwealth from enforcing a regulation that the Court has

determined is likely to be found unconstitutional cannot qualify as a

harm, (Id. at 21)," is not legally correct in the face of unexcused delay

and threatened disruption. Westermann v. Nelson, 409 U.S. 1236, 1236-

37 (1972) (Douglas, J., in chambers) (denying injunction "not because

the cause lacks merit but because orderly election processes would


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likely be disrupted by so late an action."). Nor does the district court's

statement truly reflect context. An injunction that set at naught the

valid 10,000 signature requirement would be an obvious harm.

Furthermore, the statement that the "'right to vote freely for the

candidate of one's choice is of the essence of a democratic society'" (Case

3:11-cv-00856-JAG Doc. 73 at 21), has no contextual relationship with

the valid 10,000 signature requirement. Once again, we must view the

district court's Winter factor analysis as hypothetical and advisory.

Indeed, the district court concludes that analysis with this statement:

"Had the case been timely filed, the Court would have ordered the

defendants not to enforce the residency requirement for petition

circulators, and the plaintiffs could have tried, with the expanded pool

of campaign workers, to get the 10,000 signatures." (Id. at 22). Taken

in context, it is clear that both the balance of the equities and the public

interest favor defendants and not Governor Perry.

CONCLUSION

All relevant and material considerations support denial of

Governor Perry's motion. Accordingly, the Court should deny the

motion for the reasons stated above.


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Respectfully submitted,

CHARLES JUDD, KIMBERLY

BOWERS and DON PALMER, in their

official capacities

/s/

E. Duncan Getchell, Jr.

Solicitor General of Virginia

(VSB No. 14156)

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-7240Telephone(804) 371-0200Facsimile

[email protected]

Counsel for Defendants Judd,

Bowers and Palmer


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CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of January, 2012, I

electronically filed the foregoing upon the United States Court of

Appeals for the Fourth Circuit via the Courts CM/ECF system, which

will send notice of such filing to the following, who are registered

CM/ECF users:

Hugh M. Fain, III

M. F. Connell Mullins, Jr.

Edward Everett Bagnell, Jr.

Spotts Fain P.C.

411 East Franklin Street

Suite 600

Richmond, Virginia 23219

Phone: (804) 697-2040

Fax: (804) 697-2140

[email protected]

[email protected]

[email protected] for The Honorable Rick Perry

Charles Michael Sims

LeClairRyan, A Professional Corporation

P.O. Box 2499

Richmond, VA 23218-2499

Tel: (804) 783-2003

[email protected]

Counsel for Pat Mullins, in his official capacity as Chairman of theRepublican Party of Virginia

Lee Elton Goodman

LeClairRyan, P.C.

1101 Connecticut Avenue, NW


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Suite 600

Washington, D.C. 20036

Phone: (202) 659-4140

[email protected]

Counsel for Pat Mullins, in his official capacity as Chairman of theRepublican Party of Virginia

I further certify that some of the participants in the case are not

registered CM/ECF users. I will mail one copy of the foregoing

document by First-Class Mail, on the first non-holiday to the following

non-CM/ECF participants:

Joseph M. Nixon (pro hac vice)

James E. Trainor, III (pro hac vice pending)

Martin D. Beirne (pro hac vice pending)

Beirne, Maynard & Parsons, L.L.P.

1300 Post Oak Boulevard

Suite 2500

Houston, TX 77056

Phone: (713) 623-0887

Fax: (713) [email protected]

[email protected]

[email protected]

Counsel for The Honorable Rick Perry

Stefan C. Passantino

J. Randolph Evans

Benjamin P. Keane

McKenna Long & Aldridge, LLP1900 K St. NW

Washington, DC 20009

Tel: 202-496-7500

Fax: 202-496-7756

Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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J. Christian Adams

Election Law Center, PLLC

300 N. Washington St., Suite 405Alexandria, VA 22314

Tel: 703-963-8611

Fax: 703-740-1773

[email protected]

Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich

Craig Engle

Arent Fox LLP

1050 Connecticut Avenue, NWWashington, DC 20036-5339

Tel: 202-857-6000

Fax: 202-857-6395

Counsel for Plaintiff-Intervenor The Honorable Jon Huntsman, Jr.

Cleta Mitchell

Foley & Lardner LLP

3000 K Street, N.W.

Suite 600Washington, DC 20007-5109

Tel: 202-672-5300

Fax: 202-672-5399

Counsel for Plaintiff-Intervenor Rick Santorum

/s/

E. Duncan Getchell, Jr.

Counsel for Respondents

Perry et al v. Judd et al Opposition To Motion For Injunction

Documents

Transcript of Perry et al v. Judd et al Opposition To Motion For Injunction