RICHMOND, Va. — A federal judge Friday refused to add Texas Gov. Rick Perry and three other candidates to Virginia’s Republican presidential primary ballot, ruling they waited too long to challenge the state’s ballot-qualifying law.
After a nearly four-hour hearing, U.S. District Judge John Gibney said if the candidates thought the law was unconstitutional, they should have challenged it when they first began their campaigns in the state rather than waiting until after they failed to qualify.
“In essence, they played the game, they lost, then they complained about the rules,” Gibney said.
Joseph Michael Nixon, an attorney for Perry, said no immediate decision was made on whether to appeal. Perry sued last month after failing to submit enough signatures to get on the ballot.
Former House Speaker Newt Gingrich, former Pennsylvania Sen. Rick Santorum and former Utah Gov. Jon Huntsman also failed to qualify and later joined Perry’s lawsuit.
Only former Massachusetts Gov. Mitt Romney and Texas Rep. Ron Paul qualified for the March 6 primary ballot.
Virginia requires candidates to obtain the signatures of 10,000 registered voters, including 400 from each of the state’s 11 congressional districts, to get on the ballot. The law also allows only Virginia residents to circulate petitions.
Perry claimed the residency requirement violated his free-speech and free-association rights by limiting the number of people who could carry his message in Virginia.
Gibney agreed that the provision is probably unconstitutional, although he did not strike it down because the only question before him was the candidates’ request for a preliminary injunction — not a trial on the merits.
“It’s clearly a form of protected speech,” Gibney said of the right to circulate petitions.
The judge said that had the plaintiffs brought their lawsuit earlier, he or another judge could have issued an order allowing the use of nonresident petition circulators, and perhaps the candidates would have gathered enough signatures to qualify.
Gibney disagreed, however, with the plaintiffs’ claim that the 10,000-signature threshold — the highest in the nation — is overly burdensome and serves no compelling state interest.
“This requirement keeps marginal candidates and crackpots off the ballot,” Gibney said.
Ballot rules
Virginia’s ballot-access rules are considered the toughest in the nation. Candidates must collect 10,000 signatures, with at least 400 from each of the state’s 11 congressional districts. Also, all people circulating petitions for candidates must be residents of the state. Virginia’s presidential primary is on March 6.
