Record No.

12-1067 _________________________________ United States Court of Appeals For the Fourth Circuit _________________________________ THE HONORABLE RICK PERRY,
Plaintiff-Appellant-Movant

THE HONORABLE NEWT GINGRICH, THE HONORABLE JON HUNTSMAN, JR., AND THE HONORABLE RICK SANTORUM,
Intervenor-Plaintiffs,

v. CHARLES JUDD, KIMBERLY BOWERS, AND DON PALMER,

members of the Virginia Board of Elections, in their official capacities, Defendants-Appellees-Respondents. ________________
Appeal from the United States District Court for the Eastern District of Virginia Richmond Division

_________________ RESPONSE TO GOVERNOR PERRY'S EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL
KENNETH T. CUCCINELLI, II Attorney General of Virginia E. DUNCAN GETCHELL, JR. (VSB #14156) Solicitor General of Virginia dgetchell@oag.state.va.us WESLEY G. RUSSELL, JR. (VSB #38756) Deputy Attorney General JOSHUA N. LIEF (VSB #37094) Senior Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, Virginia 23219 Telephone: (804) 786-2436 Counsel for Charles Judd, Kimberly Bowers and Don Palmer

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................. ii I. II. III. INTRODUCTION AND STATEMENT OF FACTS .................... 1 GOVERNOR PERRY'S MOTION IS GOVERNED BY AN INDISPUTABLY CLEAR STANDARD. ...................................... 4 GOVERNOR PERRY IS CLEARLY GUILTY OF LACHES AND HIS RIPENESS ARGUMENT TO THE CONTRARY IS FOUNDED ON AN ERROR OF LAW. ........................................ 5 ADDITIONAL REASONS FOR DENYING THE RELIEF REQUESTED ............................................................................. 10 A. B. C. Under Any Standard Governor Perry Lacked Standing When He Filed His Suit............................................................... 10 It Is Not Indisputably Clear That Governor Perry Is Entitled To Prevail On The Merits. ................................................ 13 It Is Not Indisputably Clear That Governor Perry Will Suffer Irreparable Harm From The Residency Requirement In The Absence Of An Injunction. .................................... 15 The District Court's Findings Of Harm In Support Of Its Laches Findings Defeats Any Claim That It Is Indisputably Clear That The Balance Of Equities And The Public Interest Favor An Injunction On Appeal. ....................................... 16

IV.

D.

CONCLUSION .................................................................................... 17 CERTIFICATE OF SERVICE............................................................. 19

TABLE OF AUTHORITIES Page Cases Am. Party of Tex. v. White, 415 U.S. 767 (1974) ................................. 15 Anderson v. Celebrezze, 460 U.S. 780 (1983) ...................................... 15 Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) ................................. 13 Brown v. Gilmore, 533 U.S. 1301 (2001) (Rehnquist, C.J., in chambers) ............................................................................................................ 5 Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) .......................................................................................... 13, 14 Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)............... 9 Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982) ........ 7 Communist Party of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist, J., in chambers) .................................................................................. 5 Hart v. Secretary of State, 715 A.2d 165 (Me. 1998)........................... 14 Initiative & Referendum Ins. v. Jaeger, 241 F. 3d 614 (8th Cir. 2001)14 Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C, 1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999)...................... 14 Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011 U.S. Dist. LEXIS 23383 (D.N.J. March 7, 2011) ............................. 12 Jenness v. Fortson, 403 U.S. 431 (1971) ............................................. 16 Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008) ........... 8 Kean v. Clark, 56 F. Supp.2d 719 (S.D. Miss. 1999)........................... 14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................... 11, 12 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .............................. 9 ii

Lux v. Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers) 5, 15 Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va. 2010) ................... 13 Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................... 7 Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129 (8th Cir. 1997) ................................................................................................... 9 Mirant Potomac River, LLC v. EPA, 577 F.3d 223 (4th Cir. 2009) .... 11 Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ..................... 15 Muntaqim v. Coombe, 449 F.3d 371 (2d Cir. 2006) (en banc) (per curiam).............................................................................................. 11 Nader v. Keith, 385 F. 3d 729 (7th Cir. 2004) ....................................... 7 Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312 (1986) (Scalia, J., in chambers) ..................................................................... 5 Public Citizen v. Miller, 813 F. Supp. 821 (N.D. Ga. 1993), aff'd, 992 F.2d 1548 (11th Cir. 1993) ................................................................. 6 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ............. 12, 13 Smith v. Bd. of Election Commrs for the City of Chi., 587 F. Supp. 1136 (N.D. Ill. 1984) .................................................................................... 7 Storer v. Brown, 415 U.S. 724 (1974) .................................................. 15 Va. Soc'y for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) .......... 8 Westermann v. Nelson, 409 U.S. 1236 (1972) (Douglas, J., in chambers) .......................................................................................................... 17 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................ 4 Wis. Right to Life State PAC v. Barland, No. 11-2623, 2011 U.S. App. LEXIS 24566 (7th Cir. Dec. 12, 2011)................................................ 8

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Statutes Va. Code Ann. 24.2-545(B) ................................................................ iv

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I.

INTRODUCTION AND STATEMENT OF FACTS

Governor Perry recites that he "filed this lawsuit because he believes he was unconstitutionally restricted from having his name appear alongside others on the ballot for the Republican primary for the Commonwealth of Virginia." (Doc. 3-1). However, what keeps him off the ballot is the "plainly constitutional," (Case 3:11-cv-00856-JAG Doc. 73 at 12), requirement of Va. Code Ann. 24.2-545(B) that a presidential primary candidate obtain 10,000 valid signatures statewide with at least 400 in each of Virginia's eleven congressional districts. While Governor Perry now complains about the statutory requirement that each petition circulator be voter eligible somewhere in Virginia, rather than having challenged that requirement at a time when success would have allowed him to use nonresident circulators, he attempted to comply with the requirement by hiring a private vendor. Furthermore, at this late date, the district court necessarily found that "the Court can only speculate whether [Perry and others] would have been placed on the ballot" had they been permitted to use out-of-state circulators. (Id.) With respect to timing, Governor Perry's campaign was permitted to "collect the requisite signatures for ballot access between July 1, 2011 1

and December 22, 2011." (Id. at 10). Although Governor Perry declared for the presidency on August 13, 2011 and "filed his Statement of Candidacy with the Federal Election Commission on August 15, 2011," he only "signed and affirmed . . . his Declaration of Candidacy for the Commonwealth of Virginia on October 13, 2011." (Id. at 6). Governor Perry's national campaign manager, Joe Allbaugh, testified that he joined the campaign October 23, 2011 and that thereafter the vendor was hired. This was necessarily less than two months before the

petitions were due even though the Perry campaign "knew the rules in Virginia many months ago." (Id. at 1). As the district court put it: "In essence, they played the game, lost, and then complained that the rules were unfair." (Id. at 2).1

The conjectural nature of Governor Perry's claim is emphasized by an odd circumstance. Governor Perry personally certified 11,911 signatures to the State Board of Elections on December 23, 2011 (Defendants' Ex. 6) (App. A), despite now acknowledging that approximately 6,000 signatures were filed. (Case 3:11cv-00856-JAG Doc. 73 at 6 n.4). According to his campaign manager, Governor Perry based his certification upon a claim of the vendor. The unexpected hospitalization of the vendor's Virginia agent left the campaign unable to determine whether the other 5,911 signatures were in fact collected. Hence, it may be that the circulator limitations did not even conjecturally prevent the Perry campaign from collecting 10,000 signatures. It is entirely possible that the critical number of signatures were simply lost. 2

With respect to harm to defendants and the public interest if names were to be added to the ballot at this late date, the district court found the following with ample evidentiary support: This lack of diligence has significantly harmed the defendants. The Board established a reasonable, necessary, and comprehensive schedule of tasks leading to the primary election. Among those tasks is the printing of absentee ballots. To comply with federal law, absentee ballots must be distributed on or before January 21, 2012. To meet this deadline, the Board set a timetable for the localities to design ballots, order them from printers, proofread mock-ups, receive them, and mail them out. By January 13, 2011, the date of the preliminary injunction hearing, the local boards should have received absentee ballots, and begun the process of mailing them out. The filing of this suit, however, has changed the Board's careful scheduling into a chaotic attempt to get absentee ballots out on time. This alone amounts to damage that satisfies the laches requirements. Don Palmer, the Secretary of the State Board of Elections, testified without contradiction that printing ballots is complex and requires a number of technical steps to imbed information into the ballots themselves and to program computers to count them. He also testified that, as of this date, absentee ballots cannot be prepared before they must be available. (Id. at 12) (footnote and citation omitted). Governor Perry does two things in his Emergency Motion. First, he asks this Court to conclude that the district court "abused its 3

discretion" in finding laches.

(Doc. 3-1 at 6).

Second, he seeks the

benefit in this Court of the district court's weighing of the four factors set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 19 (2008).2 (Doc. 3-1 at 5, 12-13). These arguments misapprehend the standard applicable to emergency motions for injunction on appeal. II. GOVERNOR PERRY'S MOTION IS GOVERNED BY AN INDISPUTABLY CLEAR STANDARD.

"The All Writs Act, 28 U.S.C. 1651(a), is the only source of . . . authority to issue . . . an injunction" preventing "the enforcement of a presumptively valid state statute." Brown v. Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers). "Such an injunction is

appropriate only if 'the legal rights at issue are indisputably clear.'" (citing Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)) (quoting Communist Party

The only way to reconcile the district court's weighing of the Winter factors in favor of Governor Perry on the residency requirement with its ruling that "[n]o one can seriously argue that the [10,000 signature] rule is unduly burdensome" is to view the ruling on the residency voter eligibility requirement as a hypothetical or advisory statement of what the district court would have done had a timely challenge been mounted against that requirement. This conclusion is reinforced by the district court's recognition that in the world as we find it "[t]he Court . . . cannot fashion relief that does not include compliance with the 10,000 signature requirement." (Case 3:11-cv-000856-JAG Doc. 73 at 20). 4

of Ind. v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist, J., in chambers). Gilmore, 533 U.S. at 1303. The indisputably clear standard can be frustrated by a dissent in the case under review, Gilmore, 533 U.S. at 1303, by express reservation of an issue in an opinion of the Supreme Court, Lux v. Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers), and by a circuit split on the issue. Id. To meet the indisputably clear standard the law must be clearly settled, and on the issue advanced by Governor Perry here, it is not. III. GOVERNOR PERRY IS CLEARLY GUILTY OF LACHES AND HIS RIPENESS ARGUMENT TO THE CONTRARY IS FOUNDED ON AN ERROR OF LAW. Governor Perry claims that he is not guilty of laches because his First Amendment claim against the circulator limitations was not ripe until he failed to be included on the ballot. (Doc. 3-1 at 8-9). The district court rightly rejected this argument, saying: Here, the plaintiffs claim a loss of their First Amendment rights of free speech and association. Any injury arose when the Commonwealth limited the categories of people who could spread their message, by banning petition circulators from out-of-state. The first day the plaintiffs were unable to communicate

their message effectively was the first day they could circulate petitions. (Case 3:11-cv-00856-JAG Doc. 73 at 10). Governor Perry's authorities are not to the contrary. In Public Citizen v. Miller, 813 F. Supp. 821, 827 (N.D. Ga. 1993), aff'd, 992 F.2d 1548 (11th Cir. 1993), laches was not found where a suit challenging a majority vote requirement was not brought until after an election in which the candidate supported by the challengers failed to receive a majority of votes although he did receive a plurality. The analysis

rested on the consideration that the claim would not have been clearly ripe before the election because the contingency was not reasonably certain to occur. Here, the claimed injury, an inability to have nonVirginians circulate petitions, was not contingent, but rather occurred as soon as Governor Perry declared his candidacy. Nor is it true that even if "Movant's injuries began when he first filed his candidacy, he cannot be charged with a lack of diligence prior to submitting his petition signatures, as he reasonably expected to be able to acquire the number required by section 24.2-545(B) of the Virginia Code." (Doc. 3-1 at 9) (citing Smith v. Bd. of Election Commrs

for the City of Chi., 587 F. Supp. 1136, 1142 (N.D. Ill. 1984)) (citing Citation v. Cycle Co., Inc. v. Yorke, 693 F.2d 691 (7th Cir. 1982)). This is not even the law in the Seventh Circuit. Nader v. Keith, 385 F. 3d 729, 736 (7th Cir. 2004) (denying a motion for preliminary injunctive relief against similar ballot access requirements inter alia, that the "suit [was] filed so gratuitously late in the campaign season . . . only a little more than four months before the election," noting that the plaintiff "could easily have filed suit at the same time he declared his candidacy, and "[t]here would be no question of his standing to seek such relief in advance of the submission or even collection of any petitions.") (emphasis added). The courts of appeals, including the Fourth Circuit, have held repeatedly that First Amendment challenges to election laws brought well in advance of their application are ripe for judicial review. See Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (holding that a preenforcement challenge to Virginia's open primary laws as violating "plaintiffs' First Amendment rights to freely associate" was "fit for judicial review" despite the law not being capable of being applied for two years because it "present[ed] a purely legal question" and the

hardships favored early resolution, because the "primary election likely would be resolved before an action brought" post-enforcement "could reach final decision."); see also, Wis. Right to Life State PAC v. Barland, No. 11-2623, 2011 U.S. App. LEXIS 24566, at *17-*19 (7th Cir. Dec. 12, 2011) (restating the rule that "in challenges to laws that chill protected speech, the hardship of postponing judicial review weighs heavily in favor of hearing the case" and holding that the First Amendment challenge to a state election law was "ripe for judicial resolution"); Kan. Judicial Review v. Stout, 519 F.3d 1107, 1116, 1118 (10th Cir. 2008) (holding that "[t]he principle that one does not have to await the consummation of threatened injury to obtain preventive relief is particularly true in the election context" in finding a First Amendment challenge to state law restricting petition circulation ripe for judicial review (internal quotation marks omitted)); cf. Va. Soc'y for Human Life v. FEC, 263 F.3d 379, 389-90 (4th Cir. 2001) (holding that a challenge to an FEC regulation of political speech was "ripe for review" because the regulation required the plaintiff "'to adjust its conduct immediately'" (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990))); Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129, 132, 133

(8th Cir. 1997) (holding that a "pre-enforcement challenge to [an FEC regulation was] suitably ripe. . . . because [the regulation] allegedly chill[ed] protected First Amendment activity."); Chamber of Commerce v. FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995) (holding that a "party has standing to challenge, pre-enforcement, . . . the constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a credible threat of prosecution," and, accordingly, rejecting a ripeness argument because "[t]he issue presented is a relatively pure legal one that subsequent enforcement proceedings will not elucidate"). Governor Perry's claim that defendants have suffered no prejudice (Doc. 3-1 at 10-12) is demonstrably wrong given the detailed finding of the district court quoted in the Introduction. Supra at I, 1-2. Governor Perry's argument - offered without supporting citations - that the ballots had not been printed as of the date of the district court hearing (Doc. 3-1 at 10-11) is contrary to the uncontroverted testimony of Donald L. Palmer that almost one hundred percent of jurisdictions had printed some ballots and that reprinting would cost hundreds of thousands of dollars, threaten disruption, and ensure that some early and handicapped voters would not have access to ballots when they

applied for them. The argument that Governor Perry only delayed two business days in bringing suit simply recycles his erroneous ripeness argument, and thus, is similarly incorrect. IV. A. ADDITIONAL REASONS FOR DENYING THE RELIEF REQUESTED Under Any Standard Governor Standing When He Filed His Suit. Perry Lacked

As the district court observed, to have standing "a litigant must demonstrate: (1) a distinct and palpable injury, (2) a fairly traceable causal connection between the claimed injury and the challenged conduct, and (3) a substantial likelihood that the injury is redressable by the relief requested." (Case 3:11-cv-00856-JAG Doc. 73 at 13)

(citations omitted). It is well established that a claimed injury is not redressable if it is caused by a legal act as in the case of requiring 10,000 signatures or is caused by the actions of a third party as with the possibility that the vendor obtained 10,000 valid signatures but lost almost half of them. Governor Perry is not being denied a place on the ballot because of the circulator residency/voter eligibility requirement. He is being denied a place on the ballot because he did not meet the constitutionally sound requirement of submitting 10,000 valid signatures by the constitutionally valid deadline. 10 This

circumstance made his claim nonredressable at the time suit was filed. See Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th Cir. 2009) (No standing because injury "flow[ed] from Virginia's

Nonattainment Provisions" and hence could "not be fairly traced to EPA's approval of Virginia's CAIR SIP"); Muntaqim v. Coombe, 449 F.3d 371, 376 (2d Cir. 2006) (en banc) (per curiam) (holding that an inmate's "inability to vote in New York arises from the fact that he was a resident of California, not because he was a convicted felon subject to the application of New York Election Law," and thus that "he has suffered no 'invasion of a legally protected interest'" as a result of his felon status, because "there is no causal connection between New York Election Law . . . and [the inmate's] inability to vote in New York, and a favorable decision of this Court on his claim that New York Election Law . . . violates the VRA would do nothing to enfranchise him." (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))); Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011 U.S. Dist. LEXIS 23383, at *15-17 (D.N.J. Mar. 7, 2011) (holding that certain plaintiffs lacked standing to challenge the constitutionality of a federal gambling prohibition on the ground "that a favorable ruling

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would not redress plaintiffs' asserted injury.

If PASPA were found

unconstitutional, New Jersey law would still prohibit the sports gambling activities plaintiffs and their members seek to legalize."). See also, Lewis, 518 U.S. at 357, 360 (The scope of injunctive relief for a constitutional violation may not exceed the scope of the violation itself.). Because his failure to obtain 10,000 signatures is sufficient to keep him from being on the ballot independently of any other factor, he lacks standing to challenge the independent requirement that petition witnesses reside in the Commonwealth. Similarly, if the vendor was the source of the injury, Governor Perry also lacks standing. There must be "a causal connection between the injury and the conduct complained of -- the injury has to be 'fairly trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.'" Lujan, 504 U.S. at 560-61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)); Bishop v. Bartlett, 575 F.3d 419, 421-22, 425 (4th Cir. 2009) (holding that a party "challeng[ing] the process by which a proposed state constitutional amendment was placed before voters" suffered an injury in fact by being deprived of the right to

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vote before his local government "issue[d] bonds for [a] certain . . . development project[]," but failed to show that the denial of his right to vote was caused by the process by which the constitutional amendment was ratified, rather than the vote of his fellow citizens, which constituted '"the independent action of some third party not before the court.'" (quoting E. Ky. Welfare Rights Org., 426 U.S. at 41-42)). Thus, if the vendor Governor Perry chose caused him not to obtain 10,000 valid signatures for medical reasons, the Governor lacks standing to challenge the requirement that petition witnesses reside in the Commonwealth. B. It Is Not Indisputably Clear That Governor Perry Is Entitled To Prevail On The Merits.

Plaintiff in Lux v. Rodrigues, 736 F. Supp. 2d 1042 (E.D. Va. 2010), challenged a circulator/witness requirement for congressional elections that such persons be voter qualified within the congressional district. The Supreme Court in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 195 n.16, 197 (1999), had expressly reserved the question of whether a state residency requirement was a valid antifraud device because it insured that petition circulators were within the subpoena power of the state. 528 U.S. at 197. The Eighth Circuit had 13

also upheld a state residency requirement in Initiative & Referendum Ins. v. Jaeger, 241 F. 3d 614, 615-17 (8th Cir. 2001) (citing Kean v. Clark, 56 F. Supp. 2d 719, 728-29, 732-34 (S.D. Miss. 1999) and Initiative & Referendum Inst. v. Secretary of State, No. Civ. 98-104-B-C, 1999 U.S. Dist. LEXIS 22071 (D. Me. Apr. 23, 1999)); see also Hart v. Secretary of State, 715 A.2d 165, 168 (Me. 1998) (upholding state residency requirements). Finally, the Supreme Court in American

Constitutional Law Foundation assumed in strong dicta that state voter eligibility requirements were valid proxies for the elimination of felons, illegal aliens, and minors from the circulator pool. 525 U.S. at 195 n.16. When Lux sought an emergency injunction on appeal, it was denied in the Fourth Circuit without opinion. Chief Justice Roberts in chambers denied an injunction on appeal against the district residency requirement based upon the Supreme Court's reservation of the question of state residency in American Constitutional Law Foundation and the circuit split. Together these defeated any showing that

entitlement to relief was indisputably clear. Lux, 131 S. Ct. at 6-7. Because we are dealing with the very type of state residency requirement reserved by the Court in American Constitutional Law

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Foundation and because the circuit split persists, Governor Perry cannot satisfy the indisputably clear standard for likelihood of success on the merits. C. It Is Not Indisputably Clear That Governor Perry Will Suffer Irreparable Harm From The Residency Requirement In The Absence Of An Injunction.

In the first place, there is no free-standing constitutional right to be on the ballot. Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986) ("States have an 'undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot.'" (quoting Anderson v. Celebrezze, 460 U.S. 780, 78889 n. 9 (1983))); Am. Party of Tex. v. White, 415 U.S. 767, 788-89 (1974) ("requiring independent candidates to evidence a 'significant modicum of support' is not unconstitutional." (footnote omitted)); Storer v. Brown, 415 U.S. 724, 732 (1974) ("'There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot -- the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.'" (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971))). And, because it

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is not indisputably clear that the circulator restrictions are invalid but it is clear that the 10,000 signature requirement is valid Governor Perry cannot satisfy the irreparable harm requirement. D. The District Court's Findings Of Harm In Support Of Its Laches Findings Defeats Any Claim That It Is Indisputably Clear That The Balance Of Equities And The Public Interest Favor An Injunction On Appeal.

There is uncontraverted evidence incorporated into the district court's findings on laches that Governor Perry's "lack of diligence has significantly harmed the defendants." (Case 3:11-cv-00856-JAG Doc. 73 at 11). If a single dissent is sufficient to defeat the indisputably clear standard, then this finding of significant harm likewise defeats it. This is not altered by the sparse analysis of the balance of the equities and the public interest found in the opinion of the district court. (Id. at 20-21). The statement that "[a]n injunction enjoining the Commonwealth from enforcing a regulation that the Court has determined is likely to be found unconstitutional cannot qualify as a harm, (Id. at 21)," is not legally correct in the face of unexcused delay and threatened disruption. Westermann v. Nelson, 409 U.S. 1236, 123637 (1972) (Douglas, J., in chambers) (denying injunction "not because the cause lacks merit but because orderly election processes would 16

likely be disrupted by so late an action."). Nor does the district court's statement truly reflect context. An injunction that set at naught the valid 10,000 signature requirement would be an obvious harm. Furthermore, the statement that the "'right to vote freely for the candidate of one's choice is of the essence of a democratic society'" (Case 3:11-cv-00856-JAG Doc. 73 at 21), has no contextual relationship with the valid 10,000 signature requirement. Once again, we must view the district court's Winter factor analysis as hypothetical and advisory. Indeed, the district court concludes that analysis with this statement: "Had the case been timely filed, the Court would have ordered the defendants not to enforce the residency requirement for petition circulators, and the plaintiffs could have tried, with the expanded pool of campaign workers, to get the 10,000 signatures." (Id. at 22). Taken in context, it is clear that both the balance of the equities and the public interest favor defendants and not Governor Perry. CONCLUSION All relevant and material considerations support denial of Governor Perry's motion. Accordingly, the Court should deny the

motion for the reasons stated above.

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Respectfully submitted, CHARLES JUDD, KIMBERLY BOWERS and DON PALMER, in their official capacities /s/ E. Duncan Getchell, Jr. Solicitor General of Virginia (VSB No. 14156) Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone (804) 371-0200 Facsimile dgetchell@oag.state.va.us Counsel for Defendants Judd, Bowers and Palmer

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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of January, 2012, I electronically filed the foregoing upon the United States Court of Appeals for the Fourth Circuit via the Courts CM/ECF system, which will send notice of such filing to the following, who are registered CM/ECF users: Hugh M. Fain, III M. F. Connell Mullins, Jr. Edward Everett Bagnell, Jr. Spotts Fain P.C. 411 East Franklin Street Suite 600 Richmond, Virginia 23219 Phone: (804) 697-2040 Fax: (804) 697-2140 hfain@spottsfain.com cmullins@spottsfain.com ebagnell@spottsfain.com Counsel for The Honorable Rick Perry Charles Michael Sims LeClairRyan, A Professional Corporation P.O. Box 2499 Richmond, VA 23218-2499 Tel: (804) 783-2003 charles.sims@leclairryan.com Counsel for Pat Mullins, in his official capacity as Chairman of the Republican Party of Virginia Lee Elton Goodman LeClairRyan, P.C. 1101 Connecticut Avenue, NW 19

Suite 600 Washington, D.C. 20036 Phone: (202) 659-4140 Lee.Goodman@leclairryan.com Counsel for Pat Mullins, in his official capacity as Chairman of the Republican Party of Virginia I further certify that some of the participants in the case are not registered CM/ECF users. I will mail one copy of the foregoing

document by First-Class Mail, on the first non-holiday to the following non-CM/ECF participants: Joseph M. Nixon (pro hac vice) James E. Trainor, III (pro hac vice pending) Martin D. Beirne (pro hac vice pending) Beirne, Maynard & Parsons, L.L.P. 1300 Post Oak Boulevard Suite 2500 Houston, TX 77056 Phone: (713) 623-0887 Fax: (713) 960-1527 jnixon@bmpllp.com ttrainor@bmpllp.com mbeirne@bmpllp.com Counsel for The Honorable Rick Perry Stefan C. Passantino J. Randolph Evans Benjamin P. Keane McKenna Long & Aldridge, LLP 1900 K St. NW Washington, DC 20009 Tel: 202-496-7500 Fax: 202-496-7756 Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich 20

J. Christian Adams Election Law Center, PLLC 300 N. Washington St., Suite 405 Alexandria, VA 22314 Tel: 703-963-8611 Fax: 703-740-1773 adams@electionlawcenter.com Counsel for Plaintiff-Intervenor The Honorable Newt Gingrich Craig Engle Arent Fox LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 Tel: 202-857-6000 Fax: 202-857-6395 Counsel for Plaintiff-Intervenor The Honorable Jon Huntsman, Jr. Cleta Mitchell Foley & Lardner LLP 3000 K Street, N.W. Suite 600 Washington, DC 20007-5109 Tel: 202-672-5300 Fax: 202-672-5399 Counsel for Plaintiff-Intervenor Rick Santorum /s/ E. Duncan Getchell, Jr. Counsel for Respondents

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