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Libertarian Party of Virginia v. Judd

United States Court of Appeals, Fourth Circuit

May 29, 2013

Libertarian Party of Virginia; Darryl Bonner, Plaintiffs-Appellees,
v.
Charles Judd, in his official capacity as member of the Virginia State Board of Elections; Kimberly Bowers, in her official capacity as me mber of the Virginia State Board o f Elections; Don Palmer, in his official capacity as member of the Virginia State Board of Elections, Defendants-Appellants. Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting Appellees.

Argued: March 20, 2013

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:12-cv-00367-JAG)

ARGUED:

Earle Duncan Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.

Rebecca Kim Glenberg, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for Appellees.

ON BRIEF:

Kenneth T. Cuccinelli, II, Attorney General of Virginia, Michael H. Brady, Assistant Attorney General, Patricia L. West, Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.

J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Char-lottesville, Virginia, for Amicus Supporting Appellees.

Before KING, DIAZ, and FLOYD, Circuit Judges.

OPINION

KING, Circuit Judge:

In the spring of 2012, the Libertarian Party of Virginia (the "LPVA") began to circulate petitions throughout the Commonwealth in the hope of collecting enough signatures to place its national candidate for President of the United States on the ballot for the November general election. To achieve ballot access for its candidate, the LPVA was required to obtain the signatures of 10, 000 qualified Virginia voters, with each of the Commonwealth's eleven congressional districts contributing at least 400 signatures toward the total. See Va. Code § 24.2-543.[1] In accordance with Virginia law, signatures on nominating petitions must be witnessed either by the candidate personally, or by a person who is a "resident of the Commonwealth and who is not a minor or a felon whose voting rights have not been restored" (the "witness residency requirement" or the "requirement"). Id.

On May 14, 2012, the LPVA, joined by Darryl Bonner, a Pennsylvania Libertarian and professional petition circulator (collectively, the "plaintiffs"), filed the underlying action in the Eastern District of Virginia, seeking injunctive and declaratory relief pursuant to 42 U.S.C. § 1983. The plaintiffs' verified Complaint alleges that the witness residency requirement impermissibly burdens their rights to free speech and free association under the First Amendment, as made applicable to the Commonwealth by the Fourteenth Amendment. The named defendants are the three members of the Virginia State Board of Elections (collectively, the "Board"), sued in their official capacities as administrators of the Commonwealth's election laws.

The plaintiffs explain that the LPVA uses both paid professionals and unpaid volunteers to circulate nominating petitions and collect signatures. See Complaint ¶ 15.[2] Only two of those professionals are LPVA members, see id. ¶ 16, and are thus permitted, on the basis of their Virginia residency, to attest to the signatures they collect. In contrast, nonresident professionals like Bonner must work in tandem with a resident of Virginia, whose sole purpose is to function as a witness. While circulating petitions in Virginia for the Green Party during 2008, Bonner "found that being accompanied by a non-professional Virginia resident significantly slowed the process down and inhibited his ability to communicate effectively with potential signatories." Id. ¶ 19.[3]

Consequently, according to the plaintiffs, the witness residency requirement "reduces the pool of circulators available, " thereby rendering it more difficult for LPVA members "to disseminate their political views, to choose the most effective means of conveying their message, to associate in a meaningful way with the prospective solicitors for the purpose of eliciting political change, to gain access to the ballot, and to utilize the endorsement of their candidate" with respect to signature-collecting efforts. Complaint ¶ 21. Bonner is likewise adversely affected, the plaintiffs maintain, in that the requirement "restrict[s] the nature of support he can offer candidates, restrict[s] the type of speech he can engage in[, ] . . . and restrict[s] his right to associate with the LPVA and with the candidates and voters of Virginia." Id. ΒΆ 22. These deleterious effects cause the witness ...


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