- The Washington Times - Thursday, December 29, 2011

RICHMOND — A noticeably skeptical federal judge has given the presidential campaign of Gov. Rick Perry and the state of Virginia a little more than a week to lay out their arguments in Mr. Perry’s lawsuit seeking to get his name onto the state’s March 6 primary ballot.

The tight time frame - Judge John A. Gibney, Jr. set a Jan. 13 date for a hearing - gives Mr. Perry’s team a chance to file notice of any witnesses and notify other campaigns to give them a chance to intervene. But it also keeps the clock ticking on the push to get him on the ballot.

Mr. Perry filed a lawsuit Tuesday against members of the state Board of Elections and the Republican Party of Virginia seeking an injunction against the state provision that signatures must be collected by eligible or registered qualified voters in the state. On Wednesday, he filed an emergency order to have his name placed on the ballot.

Neither Mr. Perry nor former House Speaker Newt Gingrich turned in the necessary number of signatures - 10,000 statewide and 400 from each congressional district - to qualify.

But Mr. Gibney put counsel for the plaintiff on the defensive at times during the approximately 40-minute hearing Thursday morning.

“Why is this case not in state court?” he said. “It looks to me like asking the federal government to get involved with state affairs, but here we are.”

Joseph M. Nixon, an attorney for Mr. Perry, responded that because of the national importance of the case and Virginia’s pre-clearance requirements under the Voting Rights Act of 1965, they decided to go straight to District Court.

Mr. Nixon argued later that Mr. Perry, not being a registered voter in Virginia, could not go out and engage in political free speech protected by the First and 14th amendments to the U.S. Constitution, adding that the case is about an issue that’s the “cornerstone of democracy.”

But Judge Gibney appeared unswayed.

“The Perry campaign has put themselves in a tight spot,” he said. “They come here after they lose the game, and then they complain about the rules.”

The state Board of Elections set the ballot order Wednesday. Texas Rep. Ron Paul will appear first and former Massachusetts Gov. Mitt Romney will be second.

But any challenge, either through legislation or litigation, must be done quickly. Virginia law requires that absentee ballots be mailed 45 days before the primary election - by Jan. 21. Solicitor General E. Duncan Getchell Jr. said Thursday that Jan. 9 was the actual deadline to allow ballots to be printed.

Judge Gibney, though, also questioned whether Virginia Attorney General Kenneth T. Cuccinelli II had a conflict in the case, pointing to recent statements the attorney general made saying he was hopeful the General Assembly would remedy the situation.

Mr. Getchell said there was no conflict, and the statement was one of policy, not of law. Judge Gibney on Thursday ordered a three-page statement from the attorney general regarding any potential conflicts.

Mr. Nixon, the attorney for the Texas governor, said afterward that he was encouraged by the proceedings. The fact that the judge ordered the case materials be sent to other campaigns to decide whether they want to intervene made it clear he viewed it as important, he said.

“They want to push to make sure that you give them everything they need,” he said, adding that Mr. Perry should be applauded for bringing the case forward on behalf of potentially aggrieved Virginians.

Still, Judge Gibney appeared skeptical about the timing.

“This is a case that probably should have been filed at the beginning of the campaign and not fter things soured for the Perry campaign,” he said during the hearing.



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