With time running out for Virginia to finish printing ballots for its March 6 primary, lawyers for Rick Perry are asking a federal appeals court to either order state election officials to include his name or to stop preparing them until the court fight is over.
Perry and three other Republicans who failed to qualify for the ballot -- Newt Gingrich, Rick Santorum, and Jon Huntsman -- lost the first round of their legal battle on Friday, when a federal judge ruled that they came to court too late. They might well be right, said Judge John Gibney, that it's unconstitutional for Virginia to prevent out-of-state residents from gathering signatures to qualify for the ballot.
But Judge Gibney said the candidates waited too long to challenge the law. He said they knew the rules for circulating petitions as far back as last summer, but waited until late December to go to court.
Over the weekend, Perry's lawyers took the case to the 4th Circuit Court of Appeals in Richmond. It's unreasonable, they argue, to expect that Perry and the others would challenge the state's election rules in advance. "Candidates for the presidency are focused on running for president, not on fighting legal battles to pre-emptively hold state election laws unconstitutional," they said.
But Virginia authorities respond that Perry's campaign has been slow to pursue the issue from the beginning. They say that although he declared for president in August, his campaign did not hire a Virginia company to help gather signatures in the state until late October.
The state says the company might actually have gathered enough signatures, but then had problems of its own. The agent in charge of the petition effort, the state says, was suddenly hospitalized. "It is entirely possible that the critical number of signatures were simply lost," the state's legal brief says.
Lawyers for Gingrich said he, too, would challenge last week's ruling but have yet to file their appeal documents. And because Huntsman has dropped out of the race, he will likely abandon his challenge.