Discuss as:

Virginia judge upholds ballot-access law

UPDATED 4:45 p.m. ET

A federal judge on Friday tossed out a challenge to the constitutionality of Virginia's law governing access to the state's primary election ballot.

The ruling is a setback for the four Republican candidates who failed to qualify for the state's March 6th primary -- Rick Perry, Newt Gingrich, Jon Hunstsman, and Rick Santorum. 

The Virginia law contains the nation's strictest requirement for number and geographic origin of signatures.  And it specifies that petitions to gather signatures can be circulated only by Virginia residents, denying candidates the opportunity to use out-of-state volunteers.  


Federal Judge John Gibney said Friday that they challengers have a point and might have prevailed on their claim that the residency requirement for circulating petitions is unconstitutional. But he said they waited too long to raise it.
Knowing full well what the state's requirements where, he said, they nonetheless circulated petitions in accordance with the state law. "They waited until after the time to gather petitions had ended and they had lost the political ballot to be on the ballot," Gibney said.

"In essence, they played the game, lost, and then complained that the rules were unfair," he said. Some legal experts predicted just this outcome, because a long-standing legal doctrine bars lawsuits under such circumstances.

What's more, the judge said, the state is far along in the election process. Ordering the state now to put the challengers on the ballot "would deprive Virginia of its rights not only to conduct the primary in an orderly away but also to insist that a candidate show broad support," Gibney wrote in a legal opinion accompanying his order.

Gibney discounted the challenge to the number of signatures the state requires. But he said the candidates have a better argument regarding the ban on allowing non-Virginia residents to circulate petitions.

That provision, the judge said, "directly infringes on the First Amendment rights of candidates, voters, petition circulators, and political parties" to spread their message.

Lawyers for the four candidates said nothing after the ruling about a possible appeal, and their odds of prevailing diminish each day as deadlines come and go to prepare for the primary.

Professor Richard Hasen of the University of California at Irvine Law School, who predicted in December that the judge would conclude the claim was filed too late, said the decision at least provides a foundation if other candidates chose to take up the fight in a future election year.

"This Pyrrhic victory for Perry will help future candidates in Virginia, assuming it is upheld on appeal," Hasen said.