CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/12/2023 1

Unconstitutional Residency Requirement 

for Circulating Ballot Petitions 

Perry v. Judd (3:11-cv-856) and Shuttleworth v. Moran 

(3:12-cv-257) (John A. Gibney, Jr., E.D. Va.) 

Two weeks before absentee ballots were to be ordered from printing 

companies for the 2012 Republican presidential primary election in 

Virginia, a federal complaint alleged that a ballot petition was 

wrongfully rejected four days previously. Among the claims, the 

complaint alleged that Virginia unconstitutionally required persons 

collecting petition signatures to be Virginia residents. The judge instructed the parties to provide other disqualified candidates with 

notice of the suit so that they could seek to intervene. On the day 

that ballot printing was to be ordered, the judge ruled that the ballots should not be printed until after a hearing four days later. The 

district judge and the court of appeals determined that the plaintiff 

should have challenged ballot-petition rules at the beginning of the 

petition period rather than at the end. The district judge also 

opined that it was unconstitutional to require signature gatherers to 

be residents. A few months later, a would-be candidate for a congressional primary election challenged the residency requirement 

because it caused him to be just a few signatures short of the requirement for the primary-election ballot. Perhaps in light of the 

district judge’s earlier opinion, the candidate was certified for the 

ballot. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

laches; primary election. 

Two weeks before local election boards were to order absentee ballots from 

printing companies for the 2012 Republican presidential primary election in 

Virginia, Texas Governor Rick Perry filed a federal complaint in the Eastern 

District of Virginia’s Richmond courthouse alleging that his ballot petition 

was wrongfully rejected four days previously.1

 Among his claims, Perry alleged that Virginia unconstitutionally required persons collecting petition 

signatures to be Virginia residents.2

 On the day after he filed his complaint, 

Perry filed a motion for a temporary restraining order and a preliminary injunction.3

1. Complaint, Perry v. Judd, No. 3:11-cv-856 (E.D. Va. Dec. 27, 2011), D.E. 1 [hereinafter 

Perry Complaint]; Perry v. Judd, 840 F. Supp. 2d 945, 949, 951, 953 (E.D. Va. 2012); see

Amended Complaint, Perry, No. 3:11-cv-856 (E.D. Va. Jan. 4, 2012), D.E. 30[hereinafter 

Perry Amended Complaint]; see also Andrew Cain, Perry Files Suit to Get on Primary Ballot, 

Richmond Times-Dispatch, Dec. 28, 2011). 

2. Perry Amended Complaint, supra note 1, at 11–12; Perry Complaint, supra note 1, at 

5–6; Perry, 840 F. Supp. 2d at 949. 

3. Motion, Perry, No. 3:11-cv-856 (E.D. Va. Dec. 27, 2011), D.E. 7; see Andrew Cain, Perry Files Emergency Motion to Get His Name on Ballot, Richmond Times-Dispatch, Dec. 29, 

2011. 
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2 Federal Judicial Center 9/12/2023 

On December 28, 2011, the day after the complaint was filed, Judge John 

A. Gibney, Jr., set the case for hearing on the following day.4

 At the hearing, 

Judge Gibney set a second hearing for January 13, 2012; briefing was ordered 

completed by January 11, and answers were due January 3.5

 Judge Gibney 

made clear that he would not permit any delays.6

 He decided that other Republican presidential candidates disadvantaged by Virginia’s ballot-petition 

restrictions should be invited to intervene,7

 so he ordered the defendants to 

provide contact information for them, and he ordered the plaintiffs to provide the other candidates with case filings.8

 On January 4, Judge Gibney 

granted intervention to Newt Gingrich, John Huntsman, Jr., and Rick Santorum.9

On Monday, January 9, the day that absentee ballots were to be ordered 

from the printers, Judge Gibney held a telephonic conference: “I am trying to 

figure out how we can proceed with this case without having the Commonwealth moot it or attempt to build a [laches] defense by printing and circulating ballots.”10 Over its objection, Judge Gibney directed the commonwealth’s 

board of elections to instruct local boards not to print or send out absentee 

ballots until after the Friday hearing.11 Virginia’s elections board immediately 

appealed Judge Gibney’s direction, but the appeal was not heard before Judge 

Gibney’s January 13 hearing.12

On January 10, Judge Gibney denied a January 9 pro se motion to intervene by a more minor presidential candidate.13 At the January 13 hearing, 

Judge Gibney denied a nonparty citizen’s motion to dismiss the case, de4. Docket Sheet, Perry, No. 3:11-cv-856 (E.D. Va. Dec. 27, 2011). 

Tim Reagan interviewed Judge Gibney for this report by telephone on September 4, 

2013. 

5. Minutes, Perry, No. 3:11-cv-856 (E.D. Va. Dec. 29, 2011), D.E. 14 [hereinafter Perry 

Minutes]; see Perry, 840 F. Supp. 2d at 949; see also Frank Green, Judge Sets Timetable for 

Perry’s Bid to Get on Va. Ballot, Richmond Times-Dispatch, Dec. 30, 2011. 

6. Interview with Hon. John A. Gibney, Jr., Sept. 4, 2013. 

7. Id.

8. Perry Minutes, supra note 5; Notice of Service, Perry, No. 3:11-cv-856 (E.D. Va. Dec. 

30, 2011), D.E. 15. 

9. Order, Perry, No. 3:11-cv-856 (E.D. Va. Jan. 4, 2012), D.E. 27; Perry, 840 F. Supp. 2d at 

949; see Amended Intervenor Complaint, Perry, No. 3:11-cv-856 (E.D. Va. Jan. 6, 2012), D.E. 

38; Intervenor Complaint, id. (Jan. 4, 2012), D.E. 28; see also Frank Green, Santorum, Gingrich, Huntsman Join Perry’s Ballot Suit, Richmond Times-Dispatch, Jan. 5, 2012. 

10. Transcript at 4, Perry, No. 3:11-cv-856 (E.D. Va. Jan. 9, 2012, filed Jan. 9, 2012), D.E. 

47 [hereinafter Jan. 9, 2012, Transcript]. 

11. Opinion, id. (Jan. 10, 2012), D.E. 54; Order, id. (Jan. 9, 2012), D.E. 46; Jan. 9, 2012, 

Perry Transcript, supra note 10, at 8–11; see Frank Green, Federal Judge Says to Wait on 

GOP Ballot, Richmond Times-Dispatch, Jan. 10, 2012; Larry O’Dell, Judge in Perry’s Va. Suit 

Blocks Absentee Ballots, Newport News Daily Press, Jan. 10, 2012, at A9. 

“Just for the record, both Friday and Monday are state holidays.” Jan. 9, 2012, Perry

Transcript, supra note 10, at 12 (remarks by an attorney appearing for the commonwealth’s 

board of elections). 

12. Docket Sheets, Perry v. Judd, Nos. 12-1042 and 12-1047 (4th Cir. Jan. 10, 2012). 

13. Order, Perry, No. 3:11-cv-856 (E.D. Va. Jan. 10, 2012), D.E. 50; see Intervention Motion, id. (Jan. 9, 2012), D.E. 45. 
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Federal Judicial Center 9/12/2023 3

clined the citizen’s request to participate in the hearing, and accepted the 

motion as an amicus curiae brief.14

After the January 13 evidentiary hearing, Judge Gibney ruled that laches 

barred the candidates’ requested relief; they should have brought the action 

at the beginning of the signature-collection period rather than at the end.15

On January 19, the court of appeals agreed: “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.”16

“To allow the parties a complete review on any appeal, . . . [Judge Gibney 

addressed] the other issues raised by the parties.”17 In particular, “the Court 

believes that the residency requirements for petition circulators will likely be 

declared unconstitutional.”18

Judge Gibney’s on-the-record views as to the constitutionality of requiring collectors of ballot-petition signatures to be state residents may have 

helped to shorten the life of a time-sensitive case filed later in 2012. 

On Friday, April 6, a plaintiff wishing to challenge the incumbent in a 

June 12 primary election for the Democratic nomination for one of northern 

Virginia’s representatives in Congress filed a federal complaint alleging that 

the plaintiff was wrongfully denied a place on the primary-election ballot.19

According to the complaint, the plaintiff was “17 signatures short of the required 1,000” and approximately thirty-six signatures were disqualified because they were collected by the campaign manager who worked in Virginia 

14. Transcript at 4–5, id. (Jan. 13, 2012, filed Jan. 17, 2012), D.E. 82 [hereinafter Jan. 13, 

2012, Perry Transcript]; Order, id. (Jan. 13, 2012), D.E. 70; see Motion, id. (Jan. 11, 2012), 

D.E. 67. 

15. Perry v. Judd, 840 F. Supp. 2d 945, 949, 953–55, 960–61 (E.D. Va. 2012); see Jan. 13, 

2012, Perry Transcript, supra note 14, at 157 (“THE COURT: . . . I can’t figure out for the life 

of me how I can put them on the ballot if they don’t have the signatures.”); see also Frank 

Green, Judge Won’t Add Candidates to Va. Primary, Richmond Times-Dispatch, Jan. 14, 

2012; Anita Kumar, 4 GOP Candidates Lose Lawsuit to Get on Va. Primary Ballot, Wash. 

Post, Jan. 14, 2012, at A6; Larry O’Dell, Judge Rejects GOP Primary Ballot Appeal, Newport 

News Daily Press, Jan. 14, 2012, at A3; Michael D. Shear, 4 Candidates Denied Ballot Spots in 

Virginia, N.Y. Times, Jan. 14, 2012, at A14. 

Judge Gibney’s concerted efforts to quickly resolve the immediate issue were substantially assisted by good briefs and arguments ably prepared in short order. Interview with Hon. 

John A. Gibney, Jr., Sept. 4, 2013. 

16. Perry v. Judd, 471 F. App’x 219, 220 (4th Cir. 2012); see Michael Martz, Decks Cleared 

for GOP Primary, Richmond Times-Dispatch, Jan. 22, 2012 (“Perry has since dropped out of 

the Republican presidential race. Only U.S. Rep. Ron Paul of Texas and former Massachusetts Gov. Mitt Romney will appear on the primary ballot in Virginia.”); Larry O’Dell, Appeals Court Refuses to Add Perry to Va. Ballot, Newport News Daily Press, Jan. 18, 2012, at 

A5. 

17. Perry, 840 F. Supp. 2d at 955. 

18. Id. at 958. 

19. Complaint, Shuttleworth v. Moran, No. 3:12-cv-257 (E.D. Va. Apr. 6, 2012), D.E. 1. 
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4 Federal Judicial Center 9/12/2023 

but lived in Maryland.20 With his complaint, the plaintiff filed a motion for a 

temporary restraining order and a preliminary injunction.21

The court assigned the case to Judge Robert E. Payne, who recused himself on April 9.22 Judge Gibney held a conference call with the parties on 

April 10 to determine whether the parties needed anything from the court 

immediately.23 The parties told Judge Gibney that they were in negotiations.24

On April 27, Judge Gibney granted the plaintiff a voluntary dismissal.25

News media reported that party officials certified the plaintiff for the 

primary-election ballot after they discovered that they had initially miscounted his ballot application signatures.26 In the election, the incumbent 

prevailed.27

On May 29, 2013, the court of appeals affirmed a July 30, 2012, holding 

by Judge Gibney in a third case that a residency requirement for collectors of 

ballot-petition signatures is unconstitutional absent narrow tailoring to a 

compelling interest, which Virginia had not shown.28

20. Id. at 9–11. 

21. Motion, id. (Apr. 6, 2012), D.E. 2. 

22. Recusal, id. (Apr. 9, 2012), D.E. 5. 

23. Docket Sheet, id. (Apr. 6, 2012); Interview with Hon. John A. Gibney, Jr., Sept. 4, 

2013. 

24. Interview with Hon. John A. Gibney, Jr., Sept. 4, 2013. 

25. Order, Shuttleworth, No. 3:12-cv-257 (E.D. Va. Apr. 27, 2012), D.E. 10. 

26. Ben Pershing, In Va. Race, Underdog Targets Ethics Issue, Wash. Post, May 24, 2012, 

at B1 (describing the underlying facts as murky). 

27. See Rep. Moran Handles Primary Challenge, Heads to General Election, Arlington Sun 

Gazette, June 13, 2012. 

28. Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013), aff’g 881 F. Supp. 

2d 719 (E.D. Va. 2012), cert. denied, 571 U.S. 1071 (2013); see Andrew Cain, Judge Strikes 

Down Va. Law on Ballot Petitions, Richmond Times-Dispatch, Aug. 1, 2012; Court Rejects 

Ballot Access Provision, Staunton Daily News Leader, May 30, 2013, at A3; Larry O’Dell, 

Judge Strikes Down Va. Petition-Circulator Law, Newport News Daily Press, Aug. 1, 2012, at 

A4.