Va. petition-circulator law struck down

Wednesday, August 1, 2012

RICHMOND, Va. — Virginia’s law prohibiting out-of-state residents from circulating petitions on behalf of third-party presidential candidates is unconstitutional, a federal judge ruled.

U.S. District Judge John A. Gibney said the restriction violates the First Amendment and is not narrowly tailored to promote the compelling state interest of preventing election fraud.

“The First Amendment places a premium on political speech, particularly speech about political change,” Gibney wrote in his July 30 opinion. By imposing a state residency requirement on petition circulators, he wrote, Virginia “deprives non-residents of a means to engage in core political speech and reduces the quantity of such speech available to its residents.”

The ruling is a victory for the Libertarian Party of Virginia and Darryl Bonner, a professional petition circulator from Pennsylvania, who want to use non-residents to gather signatures to get a presidential candidate on the November general election ballot. The deadline for submitting petitions is Aug. 24.

Rebecca K. Glenberg, an American Civil Liberties Union attorney who represented Bonner and the Libertarian Party in the lawsuit, was pleased with Gibney’s decision.

“This ruling affirms that people from out of state may greatly contribute to the political discourse in Virginia,” she said yesterday.

Attorney General Kenneth Cuccinelli, a Republican, will ask the judge to put his decision on hold while the state appeals, spokesman Brian Gottestein said.

“He feels the commonwealth has a compelling state interest in preventing election law violations, and limiting of petition circulators to Virginia residents serves that interest because circulators would be under the commonwealth’s jurisdiction if fraud or other violations occurred in the petition process,” Gottstein said in an e-mail.

Gibney’s decision invalidated a law that says any political party that fails to get 10% of the votes 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, and only Virginia residents can circulate petitions.

The judge agreed that Virginia has an interest in maintaining the integrity of elections but said there’ was no proof that allowing non-residents to circulate petitions increased fraud.

The Virginia State Board of Elections “fails to allege a single instance of voter fraud in Virginia involving a non-resident,” Gibney wrote in  Libertarian Party of Virginia v. Judd.

The judge also said the state’s concern about having jurisdiction over petition circulators lacked merit. Other courts have held that states can require non-resident circulators to submit to their subpoena power as a prerequisite to gathering signatures, Gibney said, and the board “has failed to demonstrate how such a requirement would be insufficient.”

In a similar case this 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 requirement was probably unconstitutional, but ruled that Perry filed the lawsuit too late to allow for a remedy that would not disrupt the election.

Glenberg said she hoped the board would drop enforcement of that law, even though it was not specifically affected by this week’s ruling.

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