Rick Perry v. Charles Judd , 471 F. App'x 219 ( 2012 )

Filed: 1/17/12
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1067
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.
ORDER
WILKINSON, AGEE, and DIAZ, Circuit Judges:
The Honorable Rick Perry (hereinafter Movant) has requested
this court in an emergency motion to issue an injunction
ordering Movant’s name “to appear alongside others on the ballot
for the Republican primary for the Commonwealth of Virginia, or
in the alternative, that this Court issue an injunction ordering
the Respondents not to order, print, or mail ballots prior to
the Court’s final consideration of this appeal.”1 On January 13,
2012, the district court denied the Movant’s emergency motion
for a temporary restraining order and preliminary injunction.
This court is required to act with the utmost expedition in
ruling upon the emergency motion for injunctive relief because
under the Uniformed and Overseas Citizens Absentee Voting Act,
respondents must mail requested absentee ballots to military and
overseas voters by Saturday, January 21, 2012. See 42 U.S.C.
§ 1973ff-1(a)(8)(A). For the reasons expressed herein, the
court denies the motion for the requested injunctive relief.
Movant had every opportunity to challenge the various
Virginia ballot requirements at a time when the challenge would
not have created the disruption that this last-minute lawsuit
has. Movant’s request contravenes repeated Supreme Court
admonitions that federal judicial bodies not upend the orderly
progression of state electoral processes at the eleventh hour.
Movant knew long before now the requirements of Virginia’s
election laws. There was no failure of notice. The
requirements have been on the books for years. If we were to
grant the requested relief, we would encourage candidates for
1
The Honorable Newt Gingrich, intervenor in the proceedings
below, has filed a notice of appeal. He has notified the court
that he supports Movant’s emergency motion, and our ruling
necessarily applies to him as well. No papers have been filed
by the Honorable John Huntsman or the Honorable Rick Santorum
regarding Movant’s emergency motion.
2
President who knew the requirements and failed to satisfy them
to seek at a tardy and belated hour to change the rules of the
game. This would not be fair to the states or to other
candidates who did comply with the prescribed processes in a
timely manner and it would throw the presidential nominating
process into added turmoil.
I.
A.
Like many states, Virginia has a comprehensive regulatory
scheme governing its various elections, including presidential
primary contests. Under the Commonwealth’s election laws, a
candidate seeking to participate in a Virginia presidential
primary is required to file with the Virginia State Board of
Elections (the Board) “petitions signed by at least 10,000
qualified voters, including at least 400 qualified voters from
each congressional district in the Commonwealth, who attest that
they intend to participate in the primary of the same political
party as the candidate . . . by the primary filing deadline.”
Va. Code Ann. § 24.2–545(B).
In addition to requiring 10,000 signatures from qualified
voters, Virginia law places restrictions on who can circulate
petitions. According to section 24.2-521 of the Virginia Code,
a “candidate for nomination by primary for any office shall be
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required to file with his declaration of candidacy a petition
for his name to be printed on the official primary ballot,” and
each signature on that petition must “have been witnessed by a
person who is himself a qualified voter, or qualified to
register to vote, for the office for which he is circulating the
petition.” Id. § 24.2–521. Among other requirements, one must
be “a resident of the Commonwealth” to be qualified to vote in
Virginia. Id. § 24.2–101. Consequently, only Virginia
residents can serve as petition circulators for the purposes of
a Virginia primary election campaign.
Virginia law also provides that the “requirements
applicable to a party’s primary shall be determined at least 90
days prior to the primary date and . . . approved by . . . the
State Board.” Id. § 24.2–545(A). The Board in turn is
empowered to “make rules and regulations and issue instructions
and provide information” that is consistent with the
Commonwealth’s election laws. Id. § 24.2-103. In keeping with
these provisions, the Board adopted a document entitled
“Deadlines, Duties and Ballot Access Requirements” for
Virginia’s 2012 presidential primary contest on May 25, 2011.
The document made clear that candidates were required to file
their “Consent/Declaration of Candidacy” as well as petitions by
December 22, 2011. In its “Petition Requirements,” the document
also reiterated that a candidate must provide on each page of
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the petitions “an affidavit signed under oath by the person who
circulated it that . . . s/he is registered, or eligible to be
registered, to vote in Virginia.”
Under this regulatory scheme, a wide array of candidates
has managed to access the Virginia primary ballot. In 2008, for
example, six candidates qualified for the Virginia Republican
primary ballot (Rudy Giuliani, Mike Huckabee, John McCain, Ron
Paul, Mitt Romney, and Fred Thompson). And nine candidates
qualified for the Virginia Democratic primary ballot in 2004
(Wesley Clark, Howard Dean, John Edwards, Dick Gephardt, John
Kerry, Dennis Kucinich, Lyndon LaRouche, Joe Lieberman, and Al
Sharpton). Although some of these candidates garnered a small
percentage of the primary vote, they all were able to comply
with Virginia’s 10,000 signature requirement as well as its
residency requirement for petition circulators.
B.
Movant filed his Statement of Candidacy with the Federal
Election Commission (FEC) on August 15, 2011, and signed and
affirmed his Declaration of Candidacy for the Commonwealth of
Virginia on October 13, 2011. On December 22, 2011, Movant
submitted petitions containing less than 10,000 signatures to
the Board.
Intervenor Gingrich filed his FEC Statement of Candidacy on
May 16, 2011. On December 22, 2011, he submitted his Virginia
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Declaration of Candidacy and his petition signatures.
Intervenor Gingrich claims that he submitted 11,050 signatures,
but the Board states that less than 10,000 of the submitted
signatures were valid.
Intervenor Huntsman filed his Statement of Candidacy with
the FEC on June 28, 2011. He did not file a Declaration of
Candidacy in Virginia or submit any signature petitions to the
Board. Intervenor Huntsman’s candidacy was withdrawn on January
16, 2012.
Intervenor Santorum filed his FEC Statement of Candidacy on
June 6, 2011. The parties disagree as to whether he submitted
his Virginia Declaration of Candidacy. Intervenor claims that
he submitted more than 8,000 signatures but that the Board
refused to accept them because he had not met the 10,000
signature threshold.
On December 22, 2011, the Board announced that Intervenors
Huntsman and Santorum had not submitted the requisite petitions
under Virginia Code § 24.2-545(B) and would not be certified for
the placement of their names on the presidential primary ballot.
The next day, December 23, 2011, Republican Party Chairman Pat
Mullins made a preliminary determination and publically
announced that Movant and Intervenor Gingrich had not submitted
enough valid petition signatures to be placed on the ballot. On
December 27, 2011, Movant filed a complaint for declaratory and
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injunctive relief against defendants-respondents Charles Judd,
Kimberly Bowers, and Don Palmer, members of the Board, as well
as Mullins. On January 4, 2012, Intervenors Gingrich, Huntsman,
and Santorum filed a motion to intervene, which the district
court granted. Movant and Intervenors (collectively,
plaintiffs) alleged that the Commonwealth’s residency
requirement for circulators and its 10,000 signatures
requirement violated their First Amendment freedoms of speech
and association and sought a preliminary injunction ordering the
defendants to certify them as candidates for the primary ballot.
C.
Following an evidentiary hearing, the district court denied
plaintiffs’ motion for a preliminary injunction on January 13,
2012. The court first determined that the equitable doctrine of
laches barred their request for relief. It found that
plaintiffs could have brought their constitutional challenge to
Virginia’s residency requirement for petition circulators as
soon they were able to circulate petitions in the summer of
2011, but instead chose to wait until after the December 22,
2011 deadline before seeking relief. The district court
concluded this delay “displayed an unreasonable and inexcusable
lack of diligence” on plaintiffs’ part that “has significantly
harmed the defendants.” Specifically, it determined that the
delayed nature of this suit had already transformed the Board’s
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orderly schedule for printing and mailing absentee ballots “into
a chaotic attempt to get absentee ballots out on time.” The
district court consequently held that laches barred their
request for relief.
While the district court noted that its “decision on laches
resolves the motion,” it nevertheless addressed the question of
whether plaintiffs would be entitled to preliminary injunctive
relief in the absence of laches in order to permit the parties
“a complete review on any appeal.” With respect to their
challenge to Virginia’s 10,000 signatures requirement, the
district court concluded that plaintiffs were unlikely to
succeed. Noting that the Commonwealth’s requirement was “a
minimal number” and that “much more onerous” numeric
requirements for accessing the ballot have been upheld
previously, the court concluded this election law was not
“unduly burdensome” on plaintiffs’ rights. The district court
found the residency requirement to be more troubling. It
determined that Virginia’s residency requirement for petition
circulators “is highly unlikely to withstand [plaintiffs’] First
Amendment challenge” based on its conclusion that the law likely
triggered strict scrutiny and was not narrowly tailored to
achieve a compelling state interest. The court nevertheless
admitted that it “cannot fashion relief that does not include
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compliance with the 10,000 signature requirement” and denied the
requested relief on laches grounds.
D.
On January 15, 2012, Movant filed an emergency motion with
this court seeking an injunction ordering the Board to place his
name on the ballot or, in the alternative, to delay the mailing
of absentee ballots until a final consideration of his motion
had occurred. Movant contends that the district court erred in
its application of laches and that he meets the requirements for
preliminary injunctive relief. His chief challenge continues to
be to Virginia’s circulator residency requirement, which he
contends unconstitutionally abridges his ability to engage in
political speech.
We review the district court’s denial of Movant’s request
for a preliminary injunction for “abuse of discretion, accepting
the court’s findings of fact absent clear error, but reviewing
its conclusions of law de novo.” Child Evangelism Fellowship of
Md., Inc. v. Montgomery County Pub. Sch., 373 F.3d 589, 593 (4th
Cir. 2004). We keep in mind that a preliminary injunction is
“an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). In
order to succeed, Movant “must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
9
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Id. at 20.
We also note that Movant seeks mandatory injunctive relief
here. Ordinarily, preliminary injunctions are issued to
“protect the status quo and to prevent irreparable harm during
the pendency of a lawsuit ultimately to preserve the court’s
ability to render a meaningful judgment on the merits.” In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.
2003). Movant, however, seeks to alter the status quo by having
a federal court order the Board to include his name on a primary
election ballot. But such “[m]andatory preliminary injunctive
relief in any circumstance is disfavored, and warranted only in
the most extraordinary circumstances.” Id. (citation omitted).
Consequently, our “application of th[e] exacting standard of
review [for preliminary injunctions] is even more searching
when” the relief requested “is mandatory rather than prohibitory
in nature.” Id.We cannot grant Movant’s request for this extraordinary
remedy. We find it unnecessary to address whether Movant would
likely succeed in his constitutional challenges because the
district court was correct in concluding that the defense of
laches bars the requested relief on the instant motion in any
event.
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II.
Movant contends that the district court abused its
discretion in determining that the equitable doctrine of laches
bars his motion for a preliminary injunction. We do not agree.
An affirmative defense to claims for equitable relief, laches
requires a defendant to prove two elements: “(1) lack of
diligence by the party against whom the defense is asserted, and
(2) prejudice to the party asserting the defense.” Costello v.
United States, 365 U.S. 265, 282 (1961). We believe that the
Board was able to satisfy both elements of this defense.
A.
We shall first consider the question of Movant’s lack of
diligence. Movant argues that the district court erred in
concluding that he was not diligent in pursuing his First
Amendment challenge to Virginia’s various election laws. To
prove a lack of diligence, the Board must show that Movant
“delayed inexcusably or unreasonably in filing suit,” White v.
Daniel, 909 F.2d 99, 102 (4th Cir. 1990), and that is
unquestionably what happened here.
Despite the fact he was able to bring these constitutional
challenges for over four months before the filing deadline of
December 22, 2011, Movant waited until the eleventh hour to
pursue his claims. As the district court found, Movant’s
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cognizable injury occurred no later than August 13, 2011, the
day on which he declared his candidacy for President. At that
point, the Commonwealth’s residency requirement prevented him
from using non-Virginian petition circulators. As a matter of
law, that requirement was ripe for First Amendment challenge.
See, e.g., Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)
(holding that a pre-enforcement First Amendment challenge to
Virginia’s open primary law “presents a purely legal question”
and is thus “fit for review”). Moreover, Movant had every
incentive to challenge the requirement at that time. Success in
an early constitutional challenge would have allowed Movant to
maximize the number of his petition circulators and minimize the
amount of time it took to acquire the requisite 10,000
signatures. Nevertheless, he chose to sit on his right to
challenge this provision until after he had been denied a place
on the ballot. This deliberate delay precludes the possibility
of equitable relief. For “equity ministers to the vigilant, not
to those who sleep upon their rights.” Texaco P.R., Inc. v.
Dep’t of Consumer Affairs, 60 F.3d 867, 879 (1st Cir. 1995).
Movant’s delay was not the result of a lack of notice or
clarity on the part of Virginia. The Commonwealth’s election
laws state in unmistakable terms that a “candidate for
nomination by primary for any office shall be required to
file . . . a petition for his name to be printed on the official
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primary ballot,” Va. Code Ann. § 24.2-521 (emphasis added), and
that “[s]uch petitions shall be filed with the State Board by
the primary filing deadline.” Id. § 24.2-545(B). The Board set
December 22, 2011 as the filing deadline for this primary on May
25, 2011. Furthermore, “[e]ach signature on the petition shall
have been witnessed by a person who is himself a qualified
voter, or qualified to register to vote, for the office for
which he is circulating the petition.” Id. § 24.2-521 (emphasis
added).
Amended in 2000, the circulator residency requirement has
been in place for over a decade and has governed multiple
presidential primaries. And plaintiffs’ own exhibits
demonstrate that the Board adopted a document entitled
“Deadlines, Duties and Ballot Access Requirements” on May 25,
2011, which stated that “[c]andidates wishing to participate in
the presidential primary must follow the procedures outlined
below,” including the “Petition Requirement[]” that they must
“provide an affidavit signed under oath by the person who
circulated it that . . . s/he is registered, or eligible to be
registered, to vote in Virginia.” (emphasis in original).
Virginia has done nothing to lead anyone astray with respect to
this requirement. The residency requirement for petition
circulators was unambiguous and available for all to see. Two
candidates had no difficulty discerning or fulfilling these
13
requirements, nor did multiple candidates in presidential
primaries in the past. If Movant believed this provision
violated the Constitution, he could and should have acted
expeditiously.
If we were to find Movant’s delay excusable, we would
encourage candidates to wait until the last minute to bring
constitutional challenges to state election laws. Once a
candidate learned he had been denied a place on the ballot, he
would take his disappointment to the courthouse and hapless
state election boards would be forced to halt their scheduled
election processes to wait for a ruling. Challenges that came
immediately before or immediately after the preparation and
printing of ballots would be particularly disruptive and costly
for state governments. See Dobson v. Dunlap, 576 F. Supp. 2d
181, 187 (D. Me. 2008) (applying laches to bar a constitutional
challenge to a state election law after noting that the state
had “invested approximately 225 person hours in designing,
preparing and proofing the paper ballots”). “[T]here must be a
substantial regulation of elections if . . . some sort of order,
rather than chaos, is to accompany the democratic processes,”
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), and we are
loath to reach a result that would only precipitate a more
disorderly presidential nominating process.
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What is more, by permitting candidates to wait until after
the ballot has been set to bring their challenges, we would
perforce leave to utter speculation the question of whether any
legal foundation exists for the ultimate remedy of adding a
candidate’s name to the ballot. The belated nature of Movant’s
suit, for instance, makes it all the more difficult to determine
with any confidence whether a particular injury is even
traceable to the allegedly unconstitutional residency
requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
590 (1992) (holding that in order to demonstrate standing, a
plaintiff must allege that its injury is “fairly traceable to
the defendant's allegedly unlawful conduct”). Movant failed to
submit petitions containing at least 10,000 signatures to the
Board under section 24.2–545(B) of the Virginia Code, a
requirement the district court noted would pass muster “even
under the strict scrutiny standard.” While Movant of course
predicts that he would have met the 10,000 signature threshold
if only he had been allowed to use non-Virginia residents to
gather signatures, such counterfactual speculation is not the
office of the federal judiciary. We have no inkling as to
whether Movant would have actually been able to secure 10,000
signatures, even if non-Virginia residents were able to
circulate his petitions. Inviting delayed challenges like the
one before us today would leave this court with only the most
15
infirm evidentiary basis upon which to grant the relief
requested.
Sanctioning Movant’s delay would not only necessitate such
speculation, it would also require federal courts to select
which candidates to place on state election ballots without
appropriate legal guidance. Here, Movant and Intervenors are
not similarly situated with respect to the numeric signature
requirement. In the district court proceedings, Movant claimed
to have submitted more than 6,000 signatures, whereas Intervenor
Santorum claimed to have submitted more than 8,000. Intervenor
Gingrich, by contrast, claimed to have submitted 11,050
signatures, less than 10,000 of which were deemed valid by the
Board. And Intervenor Huntsman, whose candidacy has now been
withdrawn, did not submit any signatures to the Board or even
submit a Declaration of Candidacy. If we were to grant relief
in these sorts of cases at all, we might be forced into the
unenviable enterprise of trying to decide which parties are more
deserving than others for purposes of ballot placement. The
basis in law on which we would pick and choose among disparately
situated candidates is utterly unclear to us, and yet such is
the predicament into which the absence of any timely initiation
of legal action seeks to place the court. It is of course the
function of state electoral requirements to avoid just such
eventualities, and the Movant’s delay in challenging these
16
established election requirements fails to exhibit the necessary
diligence. See, e.g., Fulani v. Hogsett, 917 F.2d 1028, 1031
(7th Cir. 1990) (citing Williams v. Rhodes, 393 U.S. 23, 34-35
(1968) (“[A]ny claim against a state electoral procedure must be
expressed expeditiously.”)).
B.
With respect to the second prong of the laches defense,
Movant asserts that the district court erred in determining that
respondents were prejudiced by any delay on his part. We find
Movant’s argument unpersuasive. His lack of diligence clearly
prejudiced the respondents, whose planning has been thrown into
far greater confusion than would have been the case with a
timely legal action. Ballots and elections do not magically
materialize. They require planning, preparation, and studious
attention to detail if the fairness and integrity of the
electoral process is to be observed.
Virginia has 134 electoral jurisdictions, which administer
elections based on guidelines implemented by the Board. Each
locality must print its own ballots, which must be approved by
the Board. See Perry v. Judd, No. 3:11-CV-856-JAG, slip op. at
1-2, 4 (E.D. Va. Jan. 10, 2012); Declaration of Don Palmer at 2
(Jan. 10, 2012). As the district court noted, “Don Palmer, the
Secretary of the State Board of Elections, testified without
contradiction that printing ballots is complex and requires a
17
number of technical steps to imbed information into the ballots
themselves and to program computers to count them.”
In order to promote fair and efficient elections, the Board
sets a timetable for localities to design ballots, order them
from printers, proofread mock-ups, and mail them out. For the
2012 presidential primary, the Board allowed candidates to begin
circulating petitions to obtain the requisite 10,000 signatures
on July 1, 2011. The candidates were instructed to submit their
signature petitions by December 22, and by December 27 the party
chairmen were to certify the names of candidates qualified to
appear on the ballot. On December 28, the Board was to
determine the order of the names on the ballot by lot.
Under federal and state law, the Board and the localities
must prepare and mail absentee ballots to military and overseas
voters at least 45 days before the election. 42 U.S.C.
§ 1973ff-1(a)(8)(A); Va. Code. Ann. § 24.2-612. The Board is
also bound by a consent decree to supervise all Virginia
electoral jurisdictions and mandate full compliance with the 45-
day requirement. The Republican primary election is to be held
on March 6, 2012, making January 21, 2012 the deadline for
compliance. Because January 21 is a Saturday, most electoral
boards will mail absentee ballots by Friday, January 20.
The 45-day requirement provides the Board and localities
with a tight window for getting ballots printed and mailed. To
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meet this deadline, the Board set January 9, 2012 as the target
date for localities to complete the preparations for printing of
ballots. Accordingly, before the January 13 preliminary
injunction hearing was even held, nearly all of the 134 election
jurisdictions had already submitted their ballot proofs to the
Board for approval. Declaration of Don Palmer at 2 (Jan. 10,
2012). In addition, the Board had already approved these
ballots, and based on that approval, nearly all of the
localities had already given their printer permission to print
them. Id. Moreover, jurisdictions that use voting machines for
in-person absentee voting had already employed third party
vendors to program these machines. Id. at 3.
Given these undisputed facts, respondents have clearly
suffered prejudice due to Movant’s lack of diligence. Movant
has already disrupted the Board’s carefully planned schedule for
meeting the demanding 45-day requirement, creating confusion for
election officials across the state. In addition, because most
of the printing has already been authorized or completed,
Movant’s requested relief would force expensive reprinting of
ballots. Such reprinting -- not to mention other delays caused
by the pending litigation -- would likely prevent respondents
from complying with their obligations under federal and state
law. Moreover, where absentee ballots are mailed in accordance
with the January 21 deadline and where a federal court
19
subsequently granted the requested relief, officials would have
to send a second and different ballot to each voter, which would
risk confusion on the part of those voters and increase the cost
and difficulty of administering the election.
In a strict sense, the prejudice caused by Movant’s delay
is to the respondents alone, but in a broad sense, the public is
potentially prejudiced as well, as respondents are charged with
ensuring the uniformity, fairness, accuracy, and integrity of
Virginia elections. This is a state interest the Supreme Court
has repeatedly credited. See, e.g., Clements v. Fashing, 457
U.S. 957, 965 (1982) (“States have important interests in
protecting the integrity of their political processes [and] in
ensuring that their election processes are efficient . . . .”);
Jenness v. Fortson, 403 U.S. 431, 442 (1971). Both the ballot
access requirements and 45-day mailing requirement were enacted
to advance this important interest. In filing at this late
hour, so close to the 45-day period, Movant has come perilously
close to asking the federal courts to have state officials act
in disregard of federal law.
The Supreme Court has repeatedly expressed its disapproval
of such disruptions. In fact, applications for a preliminary
injunction granting ballot access have been consistently denied
when they threaten to disrupt an orderly election. Fishman v.
Schaffer, 429 U.S. 1325, 1330 (1976) (Marshall, J., Circuit
20
Justice) (denying ballot access injunction in part on the ground
that “applicants delayed unnecessarily in commencing [the] suit”
until “[t]he Presidential and overseas ballots have already been
printed; some have been distributed[, and t]he general absentee
ballots are currently being printed.”); Westermann v. Nelson,
409 U.S. 1236, 1236-37 (1972) (Douglas, J., Circuit Justice)
(denying injunction “not because the cause lacks merit but
because orderly election processes would likely be disrupted by
so late an action.”); see also Williams v. Rhodes, 393 U.S. 23,
34-35 (1968) (denying a political party’s ballot access request,
despite the unconstitutionality of the relevant statute, because
“relief cannot be granted without serious disruption of election
process”).
These are not just caution lights to lower federal courts;
they are sirens.2 Consistent with such admonitions from the
Supreme Court, we decline to disrupt an orderly election process
by granting Movant’s belated request for relief. Respondents
2
And the Court’s message has not been lost on our sister
circuits, which have repeatedly denied similar requests for
injunctive relief. See, e.g., Fulani v. Hogsett, 917 F.2d 1028,
1031 (7th Cir. 1990) (finding laches barred Movant’s claim where
Movant waited eleven weeks to file suit as election approached);
Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (“As time
passes, the state’s interest in proceeding with the election
increases in importance as resources are committed and
irrevocable decisions are made, and the candidate’s claim to be
a serious candidate who has received a serious injury becomes
less credible by his having slept on his rights.”).
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have demonstrated that they were prejudiced by Movant’s lack of
diligence. Consequently, the district court did not err in
concluding that laches bars Movant’s motion for a preliminary
injunction.
III.
We find no abuse of discretion on the part of the district
court in denying this motion for a preliminary injunction on the
basis of the equitable doctrine of laches. It is too late in
the day to grant Movant’s requested emergency relief upon
appeal. We do not address in any fashion the merits of Movant’s
constitutional challenge to Virginia’s circulator residency
requirement because as the district court noted, “a decision on
laches resolves the motion” due to the fact that it operates as
an affirmative defense. For even if we assumed for purposes of
argument that the residency requirement violated the First
Amendment, laches would still preclude us from granting the
emergency relief that Movant seeks. For the reasons expressed
herein, the court denies Movant’s request for an injunction
ordering respondents either to place his name on the ballot or
to refrain from printing or mailing ballots until the conclusion
of these proceedings. The motion is accordingly hereby
DENIED.
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