Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1209


January 2012

Don’t Let Ballot Access Litigation Disenfranchise Military Voters

By Captain Samuel F. Wright, JAGC, USN (Ret.)

7.0  Military Voting Rights

Perry v. Judd, No. 12-1067 (4th Cir. Jan. 17, 2012).

William Shakespeare wrote Hamlet in 1602.  In Act III, Scene 1 of that play, Prince Hamlet delivers his famous “to be or not to be” soliloquy contemplating suicide.  The soliloquy includes a litany of all that is wrong with human life, and “the law’s delays” is one item in a very long list.  Of course, that problem is much worse in the 21st Century than it was in the 17th.  But sometimes the courts can move very quickly, and this is an example of such a situation.

Virginia will hold its presidential primary on March 6, 2012.  The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires local election officials to send out absentee ballots by the 45th day before Election Day, for any primary, special, or general election for federal office.  See title 42, United States Code, section 1973ff-1(a)(8)(A) [42 U.S.C. 1973ff-1(a)(8)(A)].  This means that absentee ballots for the March 6 primary must be mailed by Saturday, January 21.  The idea is to ensure that the service member will have sufficient time to receive the absentee ballot, mark it, and return it on time to be counted, no matter where the service to our country has taken the member.

Virginia law provides somewhat onerous requirements for a candidate to qualify to be listed on the ballot.  For a statewide primary, as in this case, the candidate must submit a nominating petition signed by at least 10,000 Virginia registered voters, including at least 400 in each of the 11 congressional districts.  Each individual who circulates a nominating petition for a candidate must be a resident of Virginia. 

The deadline to file a nominating petition was set for December 22, 2011.  These rules have been in effect in Virginia for more than a decade, and multiple presidential candidates qualified for the ballot, in both major parties, in 2004 and 2008.  The Virginia State Board of Elections (VSBE) reiterated all these rules and established the December 22 filing deadline in a formal document published on May 25, 2011, almost seven months before the filing deadline.

On the December 22 filing deadline, former Massachusetts Governor Mitt Romney and Representative Ron Paul of Texas filed nominating petitions with the VSBE.  Their petitions were found to be sufficient, and they will be listed on the ballot.  Plaintiff Rick Perry (Governor of Texas) filed a petition with fewer than 10,000 signatures.  Intervening plaintiff Newt Gingrich (former Representative from Georgia and Speaker of the House) filed a petition with 11,050 signatures, but more than 1,050 of them were found to be invalid.  Only Romney and Paul will be listed on the ballot.

Perry filed suit in the United States District Court for the Eastern District of Virginia against the VSBE and its members, and also the Republican Party of Virginia, seeking an injunction requiring that his name be added to the ballot and that the absentee ballots not be mailed until his name was added.  Gingrich intervened in the suit, seeking the same relief for him.  After an expedited trial, the District Judge ruled against Perry and Gingrich based on the ancient equitable doctrine of laches, and Perry and Gingrich immediately appealed to the United States Court of Appeals for the 4th Circuit.[1]  The District Court decision was released on Friday, January 13.  Perry and Gingrich appealed on Sunday, January 15.  The Court of Appeals decision, affirming the District Court, was released on Tuesday, January 17.  This case sets a new record for judicial expedition.

The District Judge indicated that he was inclined to uphold the constitutionality of Virginia’s requirement for 10,000 signatures and at least 400 in each congressional district, but that he was deeply troubled concerning the constitutionality of the Virginia requirement that each person circulating petitions for a candidate be a resident of Virginia.  The District Judge held that he would not reach the merits of the Perry-Gingrich challenge to Virginia’s ballot qualification rules because of the equitable doctrine of laches.

In affirming the District Court, the 4th Circuit panel held:  

We cannot grant Movant’s [Perry’s] request for this extraordinary remedy [ordering the VSBE to add Perry’s name to the ballot].  We find it unnecessary to address whether Movant would likely succeed in his constitutional challenges because the district court was correct in concluding that the defense of laches bars the requested relief on the instant motion in any event.  Movant contends that the district court abused its discretion in determining that the doctrine of laches bars his motion for a preliminary injunction.  We do not agree.  An affirmative defense to claims for equitable relief, laches requires a defendant to prove two elements:  (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.  Costello v. United States, 365 U.S. 265, 282 (1961).  We believe that the Board [VSBE] was able to satisfy both elements of this defense.

Thanks to this quick judicial action, the absentee ballots for the March 6 primary are going out on January 21 as required.  The 4th Circuit has provided a template for resolving this issue in other states, as is likely to happen.  Litigation about ballot access and redistricting must not be permitted to result in the disenfranchisement of the brave young men and women who are away from home and prepared to lay down their lives in defense of our country.

ROA sends a Bravo Zulu to member Donald Palmer, a Commander in the Navy Reserve Judge Advocate General’s Corps, who serves as the Secretary (full-time administrator) of the VSBE.  Thank you also to Virginia Attorney General Ken Cuccinelli.  They eloquently brought to the attention of the District Court and Court of Appeals the unavoidable relationship between timely resolution of ballot access disputes and the effective enfranchisement of overseas voters.  All too often over the last seven or eight decades, courts have failed to notice that relationship.  For example, in 2004 the Arkansas Supreme Court enjoined county election officials from mailing out general election ballots, while the state’s high court was deciding whether Ralph Nader should be listed on the ballot as an independent candidate for President.  When the court finally decided that Nader should not be listed, and the ballots were finally mailed, Arkansans serving in places like Iraq were effectively disenfranchised. 

In litigation involving government agencies and processes (like elections), it is often the case that the rights and interests of persons who are not party to the litigation are inevitably affected by the outcome or by the pendency of the litigation.  Courts need to be made aware of these secondary and tertiary effects.  Where appropriate, the Service Members Law Center will file amicus curiae briefs to bring to the court’s attention the rights and interests of absent service members.  Please let me know if you are aware of a situation where such an amicus brief would be helpful.

[1] The 4th Circuit is the federal appellate court that sits in Richmond and hears appeals from district courts in Virginia, West Virginia, Maryland, North Carolina, and South Carolina.