RICHMOND – A federal judge on Friday ruled that Virginia does not have to add to its March primary ballot the names of four Republican presidential candidates who failed to qualify for the ballot on their own.
District Court Judge John Gibney refused to grant a preliminary injunction that would force the state to include Texas Gov. Rick Perry, former House Speaker Newt Gingrich, former Sen. Rick Santorum or former Utah Gov. Jon Huntsman to the ballot in a battleground state expected to play a pivotal role in the 2012 election.
The ruling means only two candidates – former Massachusetts Gov. Mitt Romney and Rep. Ron Paul of Texas – will be on Virginia’s primary ballot, competing for the state’s 49 convention delegates.
Perry lawyer Joe Nixon said he’s made no decision about whether to appeal Gibney’s decision.
“The voters of Virginia have been disenfranchised and deprived of a legitimate opportunity to cast their vote for national candidates,” Nixon said.
Gibney, ruling on a lawsuit filed by Perry and joined by the other candidates, said a state law that prohibits non-state residents from gathering voter signatures on candidate petitions was likely unconstitutional. But the judge had no issue with the state law requiring candidates to collect 10,000 voter signatures to qualify for the ballot, a threshold the presidential candidates said was too onerous to meet.
Instead, Gibney questioned whether the campaigns made a good-faith effort to reach the Virginia requirement, the same standard all statewide candidates must meet.
Santorum and Huntsman didn’t even bother to file signature petitions in Virginia. Gingrich said he had enough signatures, but didn’t make the ballot because many of the names collected by a contractor he hired were fraudulent. Perry, who also hired an outside firm to collect the signatures, turned in only 6,000 names.
Lawyers for the Republican candidates insisted the 10,000-signature requirement was unduly burdensome compared to other states and that they were handcuffed by state law only allowing residents to collect signatures.
Gibney agreed that it was unfair to ask campaigns to only use in-state circulators but noted that none of the candidates made it an issue until after the state deadline to submit petitions. He added it was likely they would have won an injunction allowing their campaigns to use out-of-state petitioners if they hadn't waited until after the deadline to sue.
"In essence, they played the game, they lost and then they complained about the rules," Gibney said.
Friday’s hearing offered some insight into how the various presidential campaigns, revealing just how late in the game candidates began worrying about getting on Virginia’s ballot.
Lawyers for the Republican candidates called staffers from all four campaigns to testify to how difficult, and costly, it is to make Virginia's ballot. Perry national campaign Chairman Joe Allbaugh said Perry paid a Utah-based firm $91,000 to collect signatures in states that required them. About $47,000 was spent collecting signatures in Virginia, though the firm secured only 6,000 signatures.
Rachel Robinson, who joined Gingrich's campaign in November to organize ballot-access efforts, said an in-state firm was hired for $84,500 to handle the petitions, but Gingrich’s petitions fell short when the firm handed in 1,500 fraudulent signatures.
A Huntsman staffer testified the campaign received three bids in mid-November to collect signatures in Virginia and the cheapest was $98,000. The campaign only spent $80,000 to $90,000 to get on ballots in all other states combined.
Santorum’s campaign didn’t begin gathering signatures until December, six months after the campaigns are allowed to start, a campaign volunteer testified. The campaign collected about 8,300 signatures but state election officials wouldn’t accept them, he said.
While the campaigns complained about the cost of meeting Virginia’s requirement, Gibney focused on how long the candidates waited before they started gathering the signatures they needed.
"I was shocked to learn Perry didn't have a campaign (chairman) until at least October," Gibney said.
Gibney was concerned that the elections process would be thrown into disarray if he allowed the candidates onto the ballot. State and federal laws require election officials to send out absentee ballots for disabled and overseas military residents no later than 45-days before an election, or Jan. 21.
Secretary of State Board of Elections Donald Palmer testified that most localities already printed their ballots and there would be significant costs and mandated deadlines would be missed if the four candidates were added.
Gibney cautioned that the courts were not in a position to determine a how many signatures should be required for ballot access.
"Who am I to decide that 10,000 is excessive but 9,000 isn't," Gibney said.
State GOP chairman Pat Mullins, a defendant in the case, expressed regret that “more Republican candidates are not on our primary ballot,” but insisted the party was merely following state law to verify all petition signatures.