Court Says Residency Restriction on Petition Circulators for Third-Party Presidential Candidates is Unconstitutional

Virginia law violates free speech and association, court says in ACLU case

Richmond, VA – A federal district court judge yesterday struck down a Virginia law imposing a state residency requirement on persons who petition for third-party presidential candidates to appear on the general election ballot.  The court issued its ruling, without recourse to a trial, stating that the statute violates the First Amendment.

“We are very pleased with the court’s decision,” said ACLU of Virginia Legal Director Rebecca K. Glenberg.  “This ruling affirms that people from out of state may greatly contribute to the political discourse in Virginia. The judge recognized that the state’s prohibition on non-residents petitioning in Virginia reduces the total amount of political speech in the state, and voters are the worse off for it.”

“Petitioning on behalf of a presidential candidate is an exercise of political speech protected by the First Amendment,” added Glenberg.  “We argued that the state had no basis for restricting this right to people who live in Virginia and we’re pleased that the court agreed.”

The ACLU represents the Libertarian Party of Virginia and Darryl Bonner, a non-Virginia resident who often circulates petitions on behalf of Libertarian Party candidates in other states.

Virginia Code Section 24.2-543 requires “non-party” presidential candidates who wish to be listed on a general election ballot to gather at least 400 signatures from each congressional district and a total of 10,000 from the entire state.   Individuals are considered to be non-party candidates if they or the organization they represent received less than 10 percent of the total vote cast in either of the two preceding statewide elections.  The signatures must be witnessed by state residents.

In his opinion granting summary judgment to the plaintiffs, Judge John A. Gibney, Jr. wrote: “The First Amendment places a premium on political speech, particularly speech about political change. . . . By imposing a state residency requirement on petition circulators, the Board [of Elections] deprives non-residents of a means to engage in core political speech and reduces the quantity of such speech available to its residents.”  The court also ordered the Board of Elections to cease enforcement of the residency requirement.

The defendants in the case, members of the Virginia State Board of Elections, also filed a motion for summary judgment, asking the court to dismiss the case.  That motion was denied.

A similar issue arose earlier this year when Republican presidential hopeful Rick Perry challenged a related Virginia law imposing state residency requirements on individuals who circulate petitions for presidential primary candidates.  In that case, a federal judge said that Perry had filed his lawsuit too late to expect a court remedy, but also opined that the residency restrictions were likely unconstitutional.

“Yesterday’s opinion does not specifically deal with the residency requirement for candidates seeking a place on the presidential primary ballot, as in the Rick Perry case, but the same principles apply,” said Glenberg.  “We hope that as a result of this decision, the State Board of Elections will cease enforcement of that provision as well.”

A copy of the plaintiffs’ brief in support of their motion for summary judgment, filed on June 21, may be found online at https://acluva.org/wp-content/uploads/2012/06/20120621LibertarianPartySummaryJudgment.pdf

Judge Gibney’s opinion may be found at https://acluva.org/wp-content/uploads/2012/07/20120730LibertarianPartyCaseDistrictCourtSJOpinion.pdf.

ACLU of Virginia Contact: Rebecca Glenberg, Legal Director, 804-644-8022