Appeals court rejects Va. ballot access provision

Thursday, May 30, 2013

RICHMOND, Va.  — Virginia’s law prohibiting out-of-state residents from circulating petitions for third-party presidential candidates is unconstitutional, a federal appeals court ruled Wednesday.

The unanimous decision by a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld U.S. District Judge John A. Gibney’s ruling last year that the residency requirement is an impermissible restraint on political speech.

The Libertarian Party of Virginia and Pennsylvania professional petition circulator Darryl Bonner challenged the provision, which is part of a state law that says any political party that fails to get 10 percent of the vote cast in either of the last two statewide elections must submit petitions containing at least 10,000 signatures to get a presidential candidate on the general election ballot. At least 400 signatures must be from each of the state’s 11 congressional districts.

Lawyers for the state Board of Elections argued that without the law, it would be too difficult to prosecute nonresident petition circulators who commit election fraud.

The plaintiffs did not dispute that the state has a compelling interest in combatting voter fraud but said it was required to impose the least restrictive alternative. One such solution, they said, would be requiring out-of-state circulators to sign an agreement to comply with any civil or criminal subpoena.

The 8th U.S. Circuit Court of Appeals affirmed a North Dakota provision similar to Virginia’s, but other federal courts have endorsed measures like the one proposed by the Virginia plaintiffs. The Richmond-based appeals court also liked the idea.

“Simply stated, the Board has produced no concrete evidence of persuasive force explaining why the plaintiffs’ proposed solution, manifestly less restrictive of their First Amendment rights, would be unworkable or impracticable,” appeals court Judge Robert King wrote.

ACLU of Virginia attorney Rebecca Glenberg, who represented the plaintiffs, said she was pleased that the appeals court “recognized that the petition process is an important form of free speech and that people from out of state have a right to contribute to the political dialogue in Virginia.”

The state could appeal the panel’s decision to the full appeals court or the U.S. Supreme Court. Brian Gottstein, a spokesman for Attorney General Kenneth Cuccinelli, said the office is working with the electoral board to evaluate the options.

“The attorney general feels the commonwealth has a compelling state interest in preventing election law violations, and limiting petition circulators to Virginia residents serves that interest,” he said. “If fraud or other violations occur in the petition process, Virginia circulators would be under the commonwealth’s jurisdiction.”

In his opinion, King acknowledged the state’s concern that consent to Virginia’s jurisdiction would not guarantee access because signature collectors would still have to be located and brought to the state.

“There are no guarantees in life, however, and it is hardly an iron-clad proposition that a similarly situated resident witness will be amenable to service and comply with a lawfully issued subpoena,” he wrote.

In a similar case last year, Texas Gov. Rick Perry challenged a related Virginia law that imposes the residency requirement for petition circulators in primary elections. Perry filed the lawsuit after failing to submit enough signatures to get on Virginia’s Republican presidential primary ballot. Gibney said in that case that the residency mandate was probably unconstitutional, but ruled that Perry filed the lawsuit too late to allow for a remedy that would not disrupt the election.

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