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Civil Rights – Election Law – Independent Candidate – Petition – Residency

A Richmond U.S. District Court dismisses a would-be congressional candidate’s constitutional challenge to a Virginia statute that imposes a district residency requirement for persons circulating petitions for independent candidates for the U.S. House of Representatives.

At issue is the requirement in Va. Code § 24.2-506 that each signature on a 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 and whose affidavit to that effect appears on each page of the petition.

Defendants, members of the State Board of Elections, contend the operative issue, the district residency requirement in Code § 24.2-506, has been upheld by the 4th Circuit in Libertarian Party of Va. v. Davis, 591 F. Supp. 1561 (E.D. Va. 1984).

Plaintiff seeks a preliminary injunction. As the 4th Circuit pointed out in Real Truth About Obama v. FEC, 575 F.3d 342 (2009), U.S. Supreme Court precedent requires that a plaintiff make a clear showing that it will likely succeed on the merits at trial. This standard is far stricter than the requirements for preliminary injunctive relief in the 4th Circuit prior to Winter v. Natural Res. Def. Council Inc., 129 S.Ct. 365 (2008).

The district residency requirement at issue imposes no restrictions on plaintiff as a candidate or advocate, but only as a signature attester. The only limitation imposed by Code § 24.2-506 is that the person witnessing the signatures be a resident of the congressional district in which the candidate is seeking office. The witness need not be a registered voter in that district, as long as they reside there. There is no requirement that petition circulators wear identification badges or register in any fashion. Nonresident independent candidates, such as plaintiff, may use as many qualified surrogates as they wish to collect signatures and promote their candidacy. Further, the restrictions at issue appear to serve a reasonable regulatory interest.

The court finds that plaintiffs have failed to demonstrate that they are likely to succeed on the merits, particularly given the weight of contrary jurisprudence in the 4th Circuit.

The court denies plaintiff’s motion for preliminary injunction and grants defendant’s motion to dismiss.

Lux v. Rodrigues (Hudson, J.) No. 3:10cv482, Aug. 26, 2010; USDC at Richmond, Va. VLW 010-3-452, 16 pp.

VLW 010-3-452

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