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January 17, 2012

The Fourth Circuit Was Not Receptive to Perry's Appeal to Get Him On the Ballot

Last Friday, a district court judge rejected Perry's lawsuit, later joined by Gingrich, Santorum, and Huntsman (hah), to get on the Virginia ballot. The Fourth Circuit super-expedited the challenge and issued its order today denying the lawsuit (PDF).

Just like the district court, the Fourth Circuit panel held that Perry had waited too long to bring the lawsuit. There's a doctrine in equity called "unclean hands." The short version is that if you want the courts to force somebody else to do something, particularly something burdensome, you better be pretty damn squeaky clean. You certainly can't have acted in a manner to increase the burden on the other party before raising your claims to the court.

Despite the fact [Perry] was able to bring these constitutional challenges for over four months before the filing deadline of December 22, 2011, Movant waited until the eleventh hour to pursue his claims. . . . Moreover, Movant had every incentive to challenge the requirement at that time. Success in an early constitutional challenge would have allowed Movant to maximize the number of his petition circulators and minimize the amount of time it took to acquire the requisite 10,000 signatures.

Nevertheless, he chose to sit on his right to challenge this provision until after he had been denied a place on the ballot. This deliberate delay precludes the possibility of equitable relief. For “equity ministers to the vigilant, not to those who sleep upon their rights.”

The panel found that Perry also can't win because he could only speculate that he would have acquired the 10,000 signatures required to be on the ballot if he'd been able to use non-resident petition circulators. Remember, he didn't challenge the 10,000-signature requirement as unconstitutional (and it's clearly not), just the requirement that the circulators be residents of the state of Virginia. It's pure speculation that he would have reached the 10,000-signature threshold and the court won't entertain it. Perry had months to raise an objection and use any circulators he wanted. More unclean hands.

The other problem was that the delays caused by such a late lawsuit are making it questionable whether the county elections boards could even get the ballots printed and mailed on time. Under federal law, military ballots are supposed to be mailed 45 days in advance of the election, which means they have to go in the mail Saturday at the latest. Because Perry waited until after the ballot petition deadline to sue it's made it very unlikely that ballots are going to be mailed on time. That's even more unclean hands.

Notably, the Fourth Circuit did not rule on the constitutionality of the residency requirement because it's entirely irrelevant to whether Perry can force the State of Virginia to put him on the ballot at this late date.

Perry's campaign says it's mulling its options. He could petition for rehearing by the same panel, or petition for rehearing en banc by the whole court. But for someone whose major fault in the case is delay, that will probably not be viewed well. His final option, of course, would be to petition the Supreme Court.

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posted by Gabriel Malor at 06:09 PM

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