UPDATE: U.S. judge rules against presidential primary ballot challenge

UPDATE: 6:40 p.m.

A federal judge in Richmond on Friday turned down a bid by four Republican presidential candidates to get on Virginia’s March 6 primary ballot, ruling that while he agreed with them on a key issue, they waited too late to sue.

Texas Gov. Rick Perry, former Pennsylvania Sen. Rick Santorum, former House Speaker Newt Gingrich and former Utah Gov. Jon Huntsman challenged Virginia’s residency requirement for people who circulate ballot petitions.

Candidates must collect 10,000 signatures, at least 400 of them from each of the 11 congressional districts. As of the deadline last month, only former Massachusetts Gov. Mitt Romney and Rep. Ron Paul of Texas qualified.

Perry and the others complained that had there been no residency requirement, and had they not needed to gather such a large number of signatures, they could have used volunteers or vendors from elsewhere to meet access requirements.

U.S. District Judge John A. Gibney Jr. said Friday that he agreed the residency requirement is unconstitutional and felt they would prevail on that question if they pursued their case.

He also said he believed an injunction the candidates sought to gain access to the ballot was in the public interest. However, he said, they should have gone to court back when it would have done them some good.

“Had the plaintiffs filed a timely suit, the court would likely have granted preliminary relief,” said Gibney.

“In essence, they played the game, lost, and then complained that the rules were unfair,” Gibney said. Therefore, he said, he could not grant a preliminary injunction ordering them on the ballot.

The state is entitled to require 10,000 signatures as a means of keeping “fringe candidates and crackpots” off the ballot, said the judge. “I appreciate the seriousness of a federal court intervening in a state’s electoral process,” Gibney added.

“No one can seriously argue that the rule is unduly burdensome,” he said.

Following the hearing, Joseph Michael Nixon, a lawyer for Perry, said he would have to consult with his client on whether or not to appeal.

Nixon said he was pleased that Gibney agreed Virginia’s residency requirement is an infringement on free-speech rights. “Americans deserve the right to talk to Americans about who is going to be their president,” said Nixon.

He said that under the rule even Perry himself could not have collected petition signatures in Virginia.

The suit was field against the Virginia Board of Elections and Pat Mullins, chairman of the Republican Party of Virginia.

The board of elections said that adding more names to the ballot – many of which have already been printed – would be an expensive burden that could disrupt the election process.

E. Duncan Getchell, Virginia solicitor general, argued, among other things, that the candidates waited too long to challenge the residency requirement.

Officials say they need to mail out absentee ballots by Jan. 21 in order to get them out 45 days before the primary, as state law requires.

Attorney General Ken Cuccinelli, whose office defended the board, said in a prepared statement that, “I am pleased that the district court is allowing Virginia's orderly election process to move forward.

“The ruling today dealt only with the request for a preliminary injunction. The litigation is ongoing, and therefore, I will have no further comment,” he said.

Cuccinelli initially had said he was open to emergency legislation that would seek to get additional candidates on the March 6 ballot. He announced Jan. 1 that he had reconsidered his position, believing that changing the law now would be unfair to Romney and Paul, who qualified for the ballot.

Gov. Bob McDonnell remains disappointed that Virginia’s primary will not be more competitive, said his spokesman Tucker Martin. “He would have preferred to see more candidates on the March ballot. However, the rules regarding ballot access in the commonwealth are longstanding, clear and well-known.

But, said Martin “Today’s ruling does bring certainty to Virginia voters and ensures our military voters overseas will have the ability to exercise their constitutional rights.”

Mullins said, “We remain disappointed that more Republican candidates are not on our primary ballot. “As the judge ruled today, only two candidates met Virginia's legal requirements.

“Under the court's ruling, only Governor Romney and Congressman Paul will appear on the Republican primary ballot,” said Mullins.

ACLU of Virginia Executive Director Kent Willis, said, “For the ACLU, the most important part of the decision is the judge's recognition that the Virginia law violates the right of free speech.”

“This clearly unconstitutional law will now almost certainly be repealed by the General Assembly or struck down in court. Either way, its end is near,” said Willis.

The four candidates complained that they had to hire vendors, at $50,000 to $100,000 to collect signatures and get on the ballot in Virginia because the task is so daunting.

“Virginia has the most stringent ballot access requirements in the nation,” argued Nixon, a lawyer for Perry. The next closest state, Indiana, requires just 4,500 signatures and does not require people who circulate ballot petitions to live in the state.

 “Virginia, and Virginia alone, has a filing fee in excess of $50,000,” argued Nixon, referring to the cost of hiring a company to collect signatures.

The board of elections pointed out that many other candidates have met the requirements over the years. Nine qualified for Virginia’s  Democratic primary ballot in  2004, five of them -- including the Rev. Al Sharpton and Rep. Dennis Kucinich, D-Ohio -- who each received less than 4 percent of the vote.

Meanwhile, former Virginia Attorney General Anthony F. Troy has written to the board of elections that if it continues to enforce the residency requirement, he will seek legal action on behalf of one or more unidentified clients.