Remand for Review of Residency Requirement

A former independent candidate for Congress wins remand of his challenge to a Virginia statutory requirement that petition signatures in support of his candidacy be witnessed by a resident of the Congressional district; the 4th Circuit says the limited rationale underlying the case relied on by the lower court has been superseded by later Supreme Court cases.

The district court dismissed plaintiffs’ complaint alleging the residency requirement of Va. Code § 24.2-506 violated the First and 14th Amendments, relying in large part on this court’s analysis in Libertarian Party v. Davis, 766 F.2d 865 (4th Cir. 1985). The district court found that plaintiffs could not plausibly argue that the residency requirement violated their constitutional rights. After plaintiffs appealed this court’s denial of injunctive relief, Chief Justice Roberts, as Circuit Justice for the 4th Circuit, declined to grant plaintiffs an injunction.

The defendant Virginia State Board of Elections raises two jurisdictional challenges, which this court rejects. The board argues first that three named plaintiffs lack standing because they cannot show a cognizable injury. The board duly counted the signatures collected by the three named plaintiffs and they do not have third-party standing to advance First Amendment rights of others. Second, it argues that the former candidate’s own claim has been rendered moot, since the 2010 election is long over and Virginia is scheduled for redistricting. However, plaintiff Herb Lux’s complaint states he is specifically considering another run for Congress from Virginia’s 7th Congressional District. There is a reasonable expectation he will be adversely affected by the residency requirement whether or not he lives in the 7th District.

Turning to the merits of Lux’s complaint, we agree that the Supreme Court’s intervening decisions in Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. Am. Constitutional Law Found. Inc., 525 U.S. 182 (1999), so undermined Davis’s basis for sustaining the residency requirement as to overrule the pertinent portion of our analysis.

Guaranteeing sufficient in-district popular support was the lone state interest we identified in connection with the residency requirement. In the more than 25 years since we decided Davis, the Supreme Court has twice considered – and on each occasion rejected as a rationale – the importance of ensuring a threshold level of grassroots support as a basis for restrictions on petition circulation.

In both Meyer and Buckley, the Supreme Court recognized that a signature requirement is generally adequate to ensure the popular support necessary to warrant ballot access. In doing so, the court undermined the state interest Davisiii identified in support of a residency requirement. Against the backdrop of these intervening decisions, we can no longer say an in-district witness requirement is necessarily justified by a state’s desire to gauge the depth of a candidate’s support.

On remand, the court should conduct an independent analysis of the state interest served by the district residency requirement and, after determining the appropriate standard of review, conclude whether that portion of § 24.2-506 unduly restricts Lux’s constitutional rights. We affirm dismissal of Lux’s coplaintiffs, reverse dismissal of Lux’s claim and remand.

Affirmed in part, reversed in part and remanded.

Lux v. Judd (Duncan) No. 10-1997, July 6, 2011; USDC at Richmond, Va. (Hudson) Jared Haynie for appellants; E. Duncan Getchell, AG Office, for appellee. VLW 011-2-120, 14 pp.