FOURTH CIRCUIT REFUSES EMERGENCY BALLOT INJUNCTION[Posted January 17, 2012] A panel of the Fourth Circuit has issued a 22-page unpublished order, refusing to issue an injunction as requested by Texas Governor Rick Perry to have his name placed on the Virginia Republican primary ballot. The caption of the order in Perry v. Judd mentions the other three men who joined the suit – Newt Gingrich, Rick Santorum, and former candidate Jon Huntsman, Jr. – but only Perry specifically asked for the emergency relief; Gingrich indicated to the court that he supported Perry’s request.
The district court had found last week that no temporary restraining order or preliminary injunction could issue because of the equitable defense of laches. Specifically, Judge John Gibney in Richmond ruled that Perry had waited far too late to begin proceedings, and today the Fourth Circuit panel agrees. It finds that Perry had standing to sue as soon as he declared his candidacy for the presidency, back in August. Instead of filing suit then, and potentially expanding his base of potential petition gatherers, he waited until after the door had been closed on him in late December. The court finds no excuse for this delay.
But laches comprises two components, and the court still has to consider the district court’s finding that the respondents, members of the State Board of Elections, were prejudiced by the delay. The court affirms this ruling as well, noting the substantial effort that must go into the process of preparing, reviewing, approving, printing, and mailing ballots. The deadline for mailing out absentee ballots to servicemembers overseas, under federal law, is January 21. Go check your calendar – that’s four days from now. The appellate panel has little trouble agreeing that the Board would be prejudiced as a result of the delay.
The district court had also expressed an opinion on the underlying merits of the challenge, in order to ensure the opportunity for a full appellate review. He opined that one element of the Virginia statute (the requirement that only Virginia registered voters may circulate the petitions) might well fail a constitutional challenge on free-speech grounds. But the appellate court does not reach this ruling, agreeing that even if it were a meritorious challenge, it’s barred by laches.
Today’s panel consists of Judge Wilkinson and Judge Agee, both of Virginia, and Judge Diaz of South Carolina.