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Why Rick Perry is Right to Appeal the Virginia Ballot Access Decision

Published on January 15, 2012, by in General.

As noted earlier, on January 13, a U.S. District Court Judge ruled that the Virginia ballot access law for presidential primaries is almost certainly unconstitutional, but that Rick Perry, Newt Gingrich and Rick Santorum should not be put on the ballot because of “laches.” “Laches” means the plaintiffs failed to file the lawsuit in time, or otherwise are themselves responsible for defeating their own lawsuit, due to some procedural legal error. The Virginia decision says the lawsuit was filed too late.

However, other precedents do not agree with the “laches” decision. In every other ballot access case in which the state defended itself by arguing that a ballot access lawsuit had been filed too late, the judge ruled that this is not a proper defense of the state law if at the time of the court hearing, the ballots had not been printed. In Nader 2000 Primary Committee v Hechler, 112 F.Supp.2d 575 (2000), the case most on-point with the Perry lawsuit, Ralph Nader did not file his lawsuit until September 7, only 61 days before the general election of November 7. The judge put Nader on the ballot, even though the state argued that Nader was guilty of laches. The key was that the West Virginia ballots, for the most part, had not been printed yet. The Nader West Virginia decision was won partly because the state had unconstitutionally barred out-of-state circulators. Nader did not submit enough valid signatures, but he still was put on the ballot.

Other cases in which a ballot access lawsuit was filed late, but the court still ordered the candidate put on the ballot, despite the “laches” argument made by the state, are McInerney v Wrightson, 421 F.Supp. 726 (Delaware 1976); McCarthy v Askew, 421 F.Supp. 1193 (Florida 1976); and Brown v Davidson, an unreported state court case in Colorado in 2004, won by Walt Brown, the Socialist Party presidential nominee.

The U.S. Supreme Court seems to have established the precedent that “laches” only apply if, by the time the lawsuit has a hearing on injunctive relief, the ballots have already been printed. In Williams v Rhodes, the U.S. Supreme Court put George Wallace on the ballot, because at the time he asked for relief from the U.S. Supreme Court in 1968, Ohio had not yet printed its ballots. The U.S. Supreme Court, in the same year, did decline to put the Socialist Labor Party on the Ohio ballot, on the grounds that the SLP had not asked for injunctive relief until after the ballot-printing process had started. For news on the Perry appeal, see this Politico article.

12 Responses

  1. Joe Average

    BULLSHIT, He didn’t follow the rules and requirements. If he/they could not follow them I can imagine how well they would follow the Constitution. Thanks but no thanks.

  2. BuckMulligan

    HAHAHAHAHAHAHA! :sigh::

  3. Matt

    “almost certainly unconstitional” does not equal a judicial finding that the law in indeed unconstitional. Until a judge is willing to formally declare it to be so, it is proper for the law to be followed as it is written.

    And as has been said, Romney had no problem finding out about the law and following it. Ron Paul had no problem finding out about the law and finding it. I see no reason why the others should be given a pass when it clearly wasn’t an insurmountable challenge.

  4. I think Parry (with an A for ahole) was too busy asking Jesus for the presidency instead of participating in the process. Hopefully those like him will skip the hospital and the science behind it the next time they are sick.

    Come on Christians, prove your faith, pray for healing or stop talking about your moral high ground.

  5. If George Wallace in 1968 had “followed the rules and requirements”, he could not have been on the ballot in Ohio, Alaska, and Idaho. If John B. Anderson had “followed the rules and requirements” he would have been off the ballot in 10 states. If Harry Browne had not “followed the rules and requirements”, he would have been off the ballot in West Virginia, Arizona, and Florida. But, in practice, all 3 of these candidates appeared on the ballot in all 50 states, thanks to successful lawsuits.

    As everyone who regularly reads this blog surely knows, there are a great many unjust ballot access laws. Passively “following the rules and requirements” and abstaining from lawsuits, would encourage the state legislatures to pass even more bad laws.

    Although Ross Perot did not need to file any ballot access lawsuits in 1992, he benefited hugely from John B. Anderson’s winning lawsuits against early petition deadlines. Perot didn’t even think about running for President until February 1992. Illinois’ legislature was about to change the petition deadline for independent presidential candidates and new parties to December of the year before the election, and then Anderson won in the U.S. Supreme Court against early petition deadlines, and the Illinois legislature dropped the bill. But if Anderson had never sued, even Perot could not have run in 1992 and been on the ballot in all states.

  6. Mark Seidenberg

    Richard,

    Please go into more of the issues in Alaska, Ohio, Idaho, as related to Wallace 1868 election.

    Thank you,

    Mark Seidenberg, Chairman, American Independent Party

  7. Alaska and Idaho had no procedures for George Wallace to get on the ballot. Idaho had repealed them all in 1966. Alaska had come into the union in 1958 and the old territorial election laws had no provision for ballot access for president, because territories don’t vote for president. The legislature just didn’t bother to add any such procedures when Alaska became a state.

    Ohio required a petition of 433,100 signatures due in February of the election year. Even Wallace couldn’t do that.

  8. RJ

    So much for the rule of law.

  9. Demo Rep

    The 1787 Constitution is in effect 24/7.

    Too difficult for SCOTUS and the lower Fed and State courts to undertand.

    See Federalist 80-82 – Fed courts having jurisdiction the SAME as the U.S.A. Congress and Executive Branch with the Const exceptions – Impeachments, etc.

  10. Demo Rep

    Due to MORON stuff in the so-called brains of judges in the various courts, such courts do NOT ***ROUTINELY* STOP UN-constitutional elections (before or during such elections) or order a repeat of UN-constitutional elections (after the elections are done) — regardless of ANY costs involved.

    MAJOR brain damage in the courts since 4 July 1776.

    P.R. and nonpartisan App.V. — to END the chaos.

  11. ETJB

    I can understand the argument that Parry did not follow the ballot access rules and regulations and thus should not be on the ballot. They key issue here is; are these rules and regulations Constitutional?

  12. Demo Rep

    # 7 For younger fans – the MORON UN-EQUAL ballot access stuff started in 1968 in SCOTUS in the Williams v. Rhodes (OH Wallace case).

    a mere 43 years ago — like centuries now.

    Too many brain dead JUNK opinions to count since 1968 in SCOTUS and the lower Fed/State courts.

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