A panel of the Richmond-based U.S. 4th Circuit Court of Appeals has rejected Texas Gov. Rick Perry’s bid to get on Virginia’s March 6 Republican primary ballot.
Perry, former Pennsylvania Sen. Rick Santorum, former House speaker News Gingrich and former Utah governor Jon Hunstman Jr. had failed to qualify for the ballot and sued the Virginia Board of Elections and the state GOP.
On Friday, U.S. District Judge John A. Gibney Jr. agreed with Perry’s contention that Virginia’s requirement that ballot petition circulators be Virginia residents was unconstitutional.
But the judge said Perry should have filed the suit while collecting the required 10,000 signatures, which Perry failed to do by last month's deadline. Perry appealed Gibney’s ruling over the weekend and today a three-judge panel of the appeals court also turned him down.
Perry can request the full Court of Appeals to hear the question or go to the U.S. Supreme Court, though time is running out for both options, said Carl Tobias, a professor at the University of Richmond law school. A Perry spokesman said an an appeal is being considered.
Perry, noted the judges, “had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would not have created the disruption that this last-minute lawsuit has.”
The three-judge panel wrote Perry’s request goes against repeated U.S. Supreme Court admonitions that federal courts not upend the "orderly electoral processes" at the eleventh hour.
“The requirements have been on the books for years. If we were to grant relief, we would encourage candidates for president who knew the requirements and failed to satisfy them to seek at a tardy and belated hour to change the rules of the game,” wrote the panel.
Virginia Attorney General Ken Cuccinelli, representing the board of elections, said in a statement, “I am pleased with the 4th Circuit ruling and that Virginia’s orderly election process will be able to move forward.”
Cuccinelli initially said he was open to emergency legislation meant to get additional candidates on the ballot for the primary. He announced Jan. 1 that he had reconsidered and believed that an immediate change would be unfair to the two candidates who did qualify -- former Massachusetts Gov. Mitt Romney and Texas Rep. Ron Paul.
The appeals court agreed that the unsuccessful candidates had waited too long to challenge.
"We cannot grant... this extraordinary remendy," the court said in its opinion.
Ray Sullivan, a Perry spokesman, said the candidate is weighing his options for appeal. "We are proud to fight for the rights of Virginia voters to be able to make a meaningful decision and cast their ballots for the candidate of their choice.'
"This appellate ruling only affirms the trial court's assertion that the state's process of printing ballots should not be disrupted," said Sullivan. He added that, "An orderly ballot access process is important, but of little significance if viable candidates are unconstitutionally kept off the ballot. The trial judge's holding that the statute is unconstitutional is not disturbed."
(This has been a breaking news update. Check back for more details as they become available. Read more in tomorrow's Richmond Times-Dispatch.)
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