There is a "strong likelihood" that part of Virginia's ballot access requirements will be ruled unconstitutional, a federal judge said Tuesday, handing a preliminary victory to Republican presidential candidates trying to get onto the state's March 6 primary ballot.
Texas Gov. Rick Perry and several other candidates are contesting state law saying petition circulators must be residents of Virginia. Mr. Perry, along with former House Speaker Newt Gingrich, former Pennsylvania Sen. Rick Santorum and former Utah Gov. Jon Huntsman Jr. are also challenging requirements that candidates must gather 10,000 signatures, and 400 from each of the state's 11 congressional Districts, to appear on the ballot.
"The authorities make clear that circulating petitions is a form of protected speech, and that the Commonwealth has a heavy burden to justify the restriction on speech by showing not only that the limitation achieves a valid state interest but also that the limitation is no broader in scope than necessary to achieve that purpose," wrote Judge John A. Gibney Jr. in a temporary order.
Texas Rep. Ron Paul and former Massachusetts Gov. Mitt Romney were the only two candidates to qualify for the ballot.
The state Board of Elections had marked Jan. 21 as the deadline to issue ballots. Because it takes local election officials time to prepare and print them, however, the attorney general's office had placed the deadline at Jan. 9.
The judge recognized the tight time frame but wrote that it would be possible to get the ballots mailed in time.
"The incremental inconvenience to the electoral officials is heavily outweighed by the public interest in the voting rights of citizens," he wrote.
Lest the campaigns start celebrating, Judge Gibney made clear that the order should not be interpreted as an indication of how the he will rule at a hearing Friday. Both sides still have to file briefs, and he must weigh what the exact remedy would be if the law is found to be unconstitutional.
In a flurry of paperwork, Judge Gibney on Monday ordered the state board to instruct local electoral boards not to mail or order any absentee ballots until after the hearing — an order that was appealed to the 4th U.S. Circuit Court of Appeals by Virginia Attorney General Kenneth T. Cuccinelli II on Tuesday.
Judge Gibney then responded with the temporary order outlining his more detailed constitutional explanation. The state then appealed that order to the 4th Circuit as well.
Virginia Gov. Bob McDonnell voiced concern Tuesday about the ballots getting out in time.
"There's a federal law that says you've got to have those out 45 days in advance," he said. "We've got incredible warriors from Virgina that are in Afghanistan, places all over the world — they deserve the right to participate in this primary election."
The ballot-access saga has garnered headlines in recent weeks. Mr. Cuccinelli had indicated support to change the state's law in time to get more candidates on the ballot but backed off a day later, saying it would be unfair this late in the process and that he supported a change for future elections only.
The Republican presidential candidates won an unlikely ally in their battle Tuesday: The American Civil Liberties Union filed a brief supporting their lawsuit.
"Non-residents who wish to circulate petitions for a candidate are deprived of the ability to do so," said ACLU of Virginia Executive Director Kent Willis. "Voters are deprived of the information and ideas that these circulators would provide. And the Republican Party is unfairly limited in its choices for a nominee when valid candidates are unable to obtain the required signatures."
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