Libertarian Party of Virginia v. Charles Judd

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LIBERTARIAN PARTY OF VIRGINIA; 

DARRYL BONNER,

Plaintiffs-Appellees,

v.

CHARLES JUDD, in his official

capacity as member of the

Virginia State Board of Elections;

KIMBERLY BOWERS, in her official



capacity as member of the

Virginia State Board of Elections; No. 12-1996

DON PALMER, in his official

capacity as member of the

Virginia State Board of Elections,

Defendants-Appellants.

THOMAS JEFFERSON CENTER FOR THE

PROTECTION OF FREE EXPRESSION,

Amicus Supporting Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

John A. Gibney, Jr., District Judge.

(3:12-cv-00367-JAG)

Argued: March 20, 2013

Decided: May 29, 2013

Before KING, DIAZ, and FLOYD, Circuit Judges.

2 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

Affirmed by published opinion. Judge King wrote the opin-

ion, in which Judge Diaz and Judge Floyd joined.

COUNSEL

ARGUED: Earle Duncan Getchell, Jr., OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-

ginia, for Appellants. Rebecca Kim Glenberg, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA,

Richmond, Virginia, for Appellees. ON BRIEF: Kenneth T.

Cuccinelli, II, Attorney General of Virginia, Michael H.

Brady, Assistant Attorney General, Patricia L. West, Chief

Deputy Attorney General, Wesley G. Russell, Jr., Deputy

Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL OF VIRGINIA, Richmond, Virginia, for Appellants. J.

Joshua Wheeler, THE THOMAS JEFFERSON CENTER

FOR THE PROTECTION OF FREE EXPRESSION, Char-

lottesville, Virginia, for Amicus Supporting Appellees.

OPINION

KING, Circuit Judge:

In the spring of 2012, the Libertarian Party of Virginia (the

"LPVA") began to circulate petitions throughout the Com-

monwealth in the hope of collecting enough signatures to

place its national candidate for President of the United States

on the ballot for the November general election. To achieve

ballot access for its candidate, the LPVA was required to

obtain the signatures of 10,000 qualified Virginia voters, with

each of the Commonwealth’s eleven congressional districts

contributing at least 400 signatures toward the total. See Va.

Code § 24.2-543.1 In accordance with Virginia law, signatures

1

The LPVA must petition for ballot access pursuant to section 24.2-543

because it is not a "political party," defined as "an organization of citizens

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 3

on nominating petitions must be witnessed either by the can-

didate personally, or by a person who is a "resident of the

Commonwealth and who is not a minor or a felon whose vot-

ing rights have not been restored" (the "witness residency

requirement" or the "requirement"). Id.

On May 14, 2012, the LPVA, joined by Darryl Bonner, a

Pennsylvania Libertarian and professional petition circulator

(collectively, the "plaintiffs"), filed the underlying action in

the Eastern District of Virginia, seeking injunctive and declar-

atory relief pursuant to 42 U.S.C. § 1983. The plaintiffs’ veri-

fied Complaint alleges that the witness residency requirement

impermissibly burdens their rights to free speech and free

association under the First Amendment, as made applicable to

the Commonwealth by the Fourteenth Amendment. The

named defendants are the three members of the Virginia State

Board of Elections (collectively, the "Board"), sued in their

official capacities as administrators of the Commonwealth’s

election laws.

The plaintiffs explain that the LPVA uses both paid profes-

sionals and unpaid volunteers to circulate nominating peti-

tions and collect signatures. See Complaint ¶ 15.2 Only two of

those professionals are LPVA members, see id. ¶ 16, and are

thus permitted, on the basis of their Virginia residency, to

attest to the signatures they collect. In contrast, nonresident

professionals like Bonner must work in tandem with a resi-

dent of Virginia, whose sole purpose is to function as a wit-

ness. While circulating petitions in Virginia for the Green

Party during 2008, Bonner "found that being accompanied by

a non-professional Virginia resident significantly slowed the

of the Commonwealth which, at either of the two preceding statewide gen-

eral elections, received at least 10 percent of the total vote cast for any

statewide office filled in that election." Va. Code § 24.2-101.

2

The Complaint is found at J.A. 7-16. (Citations herein to "J.A. ___"

refer to the contents of the Joint Appendix filed by the parties to this

appeal.)

4 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

process down and inhibited his ability to communicate effec-

tively with potential signatories." Id. ¶ 19.3

Consequently, according to the plaintiffs, the witness resi-

dency requirement "reduces the pool of circulators available,"

thereby rendering it more difficult for LPVA members "to

disseminate their political views, to choose the most effective

means of conveying their message, to associate in a meaning-

ful way with the prospective solicitors for the purpose of elic-

iting political change, to gain access to the ballot, and to

utilize the endorsement of their candidate" with respect to

signature-collecting efforts. Complaint ¶ 21. Bonner is like-

wise adversely affected, the plaintiffs maintain, in that the

requirement "restrict[s] the nature of support he can offer can-

didates, restrict[s] the type of speech he can engage in[,] . . .

and restrict[s] his right to associate with the LPVA and with

the candidates and voters of Virginia." Id. ¶ 22. These delete-

rious effects cause the witness residency requirement to fail

strict scrutiny analysis under the First Amendment, the plain-

tiffs say, because it "is not narrowly tailored to further a com-

pelling government interest." Id. ¶ 33.

The plaintiffs filed their Complaint about three months in

advance of the deadline for the LPVA to submit signatures.

In light of the time-sensitive nature of the dispute, the district

court conducted a conference call with the parties on May 22,

2012, directing that discovery immediately commence and be

completed within thirty days. The Board answered the Com-

plaint on May 25, 2012, denying that the plaintiffs were enti-

tled to redress. Following the close of discovery, on June 21,

2012, the parties filed cross-motions for summary judgment,

3

Bonner elaborated during discovery that, during the 2008 petition

drive, his witness-partners occasionally "wanted to take a break when I

wanted to continue working. Witnesses sometimes interrupted my com-

munication to potential signatories to state their own opinions, which

sometimes invited argument from the potential signatory and sometimes

caused the potential signatory to decide not to sign the petition." J.A. 109.

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 5

with the Board’s motion premised entirely on its assertion that

the plaintiffs have not suffered a legally cognizable injury and

thus lack standing to sue.

On July 30, 2012, the district court issued a Memorandum

Opinion in conjunction with a conforming Order, in which it

denied the Board’s motion as to standing and granted the

plaintiffs’ motion on the merits. The court therefore declared

the witness residency requirement unconstitutional and per-

manently enjoined its enforcement.4

Subsequently, on August 13, 2012, the court denied the

Board’s motion to stay the Order pending appeal. The Board

noticed this appeal the following day, and it moved us for a

stay on August 24, 2012, the deadline for the LPVA to submit

its petitions. Thereafter, on September 6, 2012, we denied the

requested stay. The parties then proceeded to brief the issues

identified for appeal, and they presented oral argument on

March 20, 2013. Having now fully considered the submis-

sions and arguments of the parties, we affirm in all respects

the judgment of the district court.

4

The district court’s Order provided, in pertinent part, that "the defen-

dants and their successor members of the Virginia State Board of Elec-

tions are hereby PERMANENTLY ENJOINED from enforcing the state

residency requirement with respect to the circulation of petitions for inde-

pendent candidates for the Office of President of the United States." Order

1. Although "[f]acial challenges are disfavored," Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450 (2008), they are permit-

ted on overbreadth grounds "because the ‘statute’s very existence may

cause others not before the court to refrain from constitutionally protected

speech or expression.’" Hardwick ex rel. Hardwick v. Heyward, 711 F.3d

426, 441 (2013) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612

(1973)). Nevertheless, "‘a law should not be invalidated for overbreadth

unless it reaches a substantial number of impermissible applications.’"

Hardwick, 711 F.3d at 426 (quoting New York v. Ferber, 458 U.S. 747,

771 (1982)). The Board does not contend that, if the witness residency

requirement is declared unconstitutional, such declaration should be con-

fined solely to the requirement’s application to the plaintiffs.

6 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

I.

We review de novo the district court’s disposition of the

cross-motions for summary judgment, evaluating them seria-

tim. See Desmond v. PNGI Charles Town Gaming, L.L.C.,

630 F.3d 351, 354 (4th Cir. 2011). With respect to both

motions, we are required to view the facts and all justifiable

inferences arising therefrom in the light most favorable to the

nonmoving party, in order to determine whether "‘there is no

genuine dispute as to any material fact and the movant is enti-

tled to judgment as a matter of law.’" Woollard v. Gallagher,

712 F.3d 865, ___ (4th Cir. 2013) (quoting Fed. R. Civ. P.

56(a)). A dispute is genuine if "a reasonable jury could return

a verdict for the nonmoving party." Dulaney v. Packaging

Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). A fact is

material if it "‘might affect the outcome of the suit under the

governing law.’" Henry v. Purnell, 652 F.3d 524, 548 (4th

Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

II.

We first examine the district court’s ruling denying sum-

mary judgment to the Board, whose motion contended that the

plaintiffs were bereft of standing to sue and, thus, that the

court was without jurisdiction over the dispute. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) ("‘On

every writ of error or appeal, the first and fundamental ques-

tion is that of jurisdiction.’") (quoting Great S. Fire Proof

Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Standing is

part and parcel of the constitutional mandate that the judicial

power of the United States extend only to "cases" and "con-

troversies." U.S. Const. art. III, § 2; see Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) ("[T]he core component of

standing is an essential and unchanging part of the case-or-

controversy requirement of Article III.").

Constitutional standing comprises three elements: (1) the

plaintiff is required to have sustained an injury in fact; which

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 7

(2) must be causally connected to the complained-of conduct

undertaken by the defendant; and (3) will likely be redressed

if the plaintiff prevails. See Lujan, 504 U.S. at 560-61. The

burden of establishing each element is on the plaintiff, which,

in the context of this appeal, requires the "set[ting] forth by

affidavit or other evidence specific facts, which for purposes

of the summary judgment motion will be taken to be true." Id.

at 561 (citation and internal quotation marks omitted). In chal-

lenging the district court’s adverse ruling on its summary

judgment motion, the Board maintains that neither the LPVA

nor Bonner has sufficiently demonstrated the existence of a

threshold injury in fact.

A.

The Board portrays the LPVA’s First Amendment claim as

grounded in the latter’s anxiety that its resident petition circu-

lators might become incapacitated such that it would be com-

pelled to replace either or both — if at all — with non-

resident circulators made less efficient by the witness resi-

dency requirement. See Complaint ¶ 16 ("In past campaigns,

these two people have been responsible for collecting a signif-

icant number of the required signatures. If either of them were

to take ill or otherwise become unavailable, the LPVA would

be unlikely to be able to collect the required 10,000 signa-

tures."). Pointing out that the LPVA has succeeded in placing

its presidential candidate on the Virginia ballot since 1992,

see J.A. 92, and that both resident circulators were actively

collecting signatures throughout the 2012 petition period at

least until the close of discovery, see id. at 81, the Board

depicts the mere threat of changed circumstances as imper-

missibly "‘conjectural or hypothetical,’" and not the "‘actual

or imminent’" injury necessary to satisfy the standing require-

ment. Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas,

495 U.S. 149, 155 (1990) (citation and internal quotation

marks omitted)). The Board’s characterization, insofar as it

misperceives the essence of the petition circulation process,

8 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

too narrowly circumscribes the proper contours of the

LPVA’s claim.

In Meyer v. Grant, a unanimous Supreme Court determined

that petitions "of necessity involve[ ] both the expression of

a desire for political change and a discussion of the merits of

the proposed change." 486 U.S. 414, 421 (1988). Indubitably,

restrictions on this sort of "core political speech" can affect

the ultimate goal of ballot access. Id. at 422-23 (deducing that

Colorado statute criminalizing the payment of petition circu-

lators "makes it less likely that [proponents of an initiative

measure] will garner the number of signatures necessary to

place the matter on the ballot"). Although the LPVA has yet

to fail in its quadrennial quest to gather sufficient signatures

in Virginia on behalf of its party’s presidential candidate, the

Board’s exclusive focus on those past successes ignores the

means by which that end has been, and is, achieved. Cf. Buck-

ley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192

(1999) (affirming invalidation of Colorado initiative petition

enactments as "significantly inhibit[ing] communication with

voters about proposed political change").5

Mindful of the Court’s analysis in Meyer, we observe that

those circulating nominating petitions need not succeed in

5

Though the decisions in Meyer and Buckley each involved challenges

to laws governing initiative petitions and not nominating petitions, the

Supreme Court noted in the latter case that "[i]nitiative-petition circulators

. . . resemble candidate-petition signature gatherers . . . , for both seek bal-

lot access." Buckley, 525 U.S. at 191. In Nader v. Blackwell, the court of

appeals mused that "[t]here appears to be little reason to limit Buckley’s

holding to initiative-petition circulators . . . . Indeed, common sense sug-

gests that, in the course of convincing voters to sign their petitions,

candidate-petition circulators engage in at least as much interactive politi-

cal speech — if not more such speech — than initiative-petition circula-

tors." 545 F.3d 459, 475 (6th Cir. 2008) (internal quotation marks

omitted); see also Lux v. Judd, 651 F.3d 396, 403 n.5 (4th Cir. 2011) (dis-

cerning no meaningful distinction, for purposes of First Amendment anal-

ysis, between initiative petitions and nominating petitions, nor between

circulators of petitions and witnesses thereto).

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 9

convincing potential signatories that the candidate will pre-

vail, but the circulators "will at least have to persuade them

that [the candidate] is . . . deserving of the public scrutiny and

debate that would attend . . . consideration by the whole elec-

torate." 486 U.S. at 421. Almost invariably, this will "involve

an explanation of the nature of the proposal," e.g., the candi-

date’s political views or the party’s platform, "and why its

advocates support" them. Id. Taking as true the uncontested

averments of the plaintiffs, we cannot help but agree that the

witness residency requirement inevitably "limits the number

of voices who will convey [the] message and hours they can

speak and, therefore, limits the size of the audience they can

reach." Id. at 422-23.6

6

The verified Complaint faithfully tracks the concerns expressed by the

Supreme Court in Meyer, alleging, among other things, that the witness

residency requirement "reduces the pool of circulators available to support

the LPVA’s presidential candidate[,] placing a severe burden on the candi-

date’s and the LPVA’s First Amendment rights by making it more diffi-

cult for them to disseminate their political views [and] to choose the most

effective means of conveying their message." Complaint ¶ 21. Bruce

Majors, a Washington, D.C. resident, submitted an affidavit on behalf of

the LPVA in opposition to the Board’s motion for summary judgment, in

which he stated that, but for the requirement, he would have volunteered

as a petition circulator and organized other volunteers during the 2012

campaign. See J.A. 155. In a separate affidavit filed at the same time, Wil-

liam Redpath, a former Chair of the Libertarian National Committee, con-

firmed that elimination of the requirement would afford the LPVA "more

control over its own messaging and over the logistical details of its ballot

access drives." Id. at 152.

The Board maintains that these eleventh-hour affidavits asserted for the

first time "a present interest in engaging non-resident circulators, funda-

mentally altering LPVA’s claim of legal injury," in stark juxtaposition to

the more speculative prospect of the party failing to amass sufficient sig-

natures in some future election. Br. of Appellants 23. According to the

Board, the affidavits should be disregarded insofar as they contradict the

prior sworn allegations of the Complaint. See, e.g., In re Family Dollar

FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011) (reciting "well established"

rule that party cannot avoid adverse entry of summary judgment by

attempting to conjure genuine issue of fact through self-serving affidavit

that conflicts with prior testimony). Nonetheless, "for the rule . . . to apply,

there must be a bona fide inconsistency." Spriggs v. Diamond Auto Glass,

10 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

It is therefore immaterial that the LPVA can, in spite of the

witness residency requirement, circulate its petitions to

enough of the electorate to permit the collection of 10,000

signatures, if it is also true that, absent the requirement, the

petition circulators could approach and attempt to persuade an

even larger audience. An encumbrance thus alleged, whose

presence is properly evidenced on summary judgment, consti-

tutes an injury in fact for standing purposes.

B.

The Board also contests Bonner’s standing, but its chal-

lenge steers a slightly different tack than that taken with the

LPVA. Bonner disclosed, by way of background, that he has

been a professional petition circulator and canvasser since

about 1993, and that he is the CEO of his own company, Cen-

tral Petition Management. See J.A. 111-12. Bonner has col-

lected signatures all across the country, deriving substantial

income from his efforts. See id. at 112-17, 121. He recalled

having circulated nominating petitions in Virginia in at least

two elections prior to 2012, see id. at 109, and Bonner "con-

siders his work an important means of expressing his belief

that third-party candidates play a significant role in the politi-

cal system and should be allowed a place on the ballots,"

Complaint ¶ 18.

Bonner, however, revealed at his deposition that an injury

to his right knee for which he would require surgery had

scotched his immediate plans to circulate petitions for the

LPVA. See J.A. 132-33. Though it concedes that "Bonner’s

theory of [constitutional] injury could on its face support his

case," Br. of Appellant 22, the Board insists that Bonner’s

242 F.3d 179, 185 n.7 (4th Cir. 2001). No such inconsistency is present

here, in that the affidavits merely detail and lend context to the nature of

the LPVA’s injury, which the Complaint sets forth in general terms by

allusion to Meyer.

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 11

physical incapacity to engage in protected speech and associa-

tion in Virginia with respect to the 2012 campaign trumps the

legal incapacity that would otherwise be imposed by the wit-

ness residency requirement.

The Board couches its argument against Bonner’s standing

in terms of imminency, relating to the threshold presence of

an injury in fact, but we think it plain that the objection is

more appropriately characterized as one concerning the sec-

ond Lujan element, that of causation. Fulfillment of that ele-

ment necessitates only that the alleged injury be "‘fairly

traceable’" to the complained-of action. See MacDonald v.

Moose, 710 F.3d 154, 161-62 (4th Cir. 2013) (quoting Lujan,

504 U.S. at 560-61 (internal citation omitted)). Imposition of

the stringent proximate cause standard, derived from princi-

ples of tort law, has been held to "wrongly equate[ ] injury

fairly traceable to the defendant with injury as to which the

defendant’s actions are the very last step in the chain of cau-

sation." Bennett v. Spear, 520 U.S. 154, 168-69 (1997). The

Supreme Court has therefore recognized the concept of con-

current causation as useful in evaluating whether the plead-

ings and proof demonstrate a sufficient connection between

the plaintiff’s injury and the conduct of the defendant, such

that a court ought to assert jurisdiction over the dispute.

Thus, if the witness residency requirement is at least in part

responsible for frustrating Bonner’s attempt to fully assert his

First Amendment rights in Virginia, the causation element of

Lujan is satisfied, and he can attempt to hold the Board

accountable notwithstanding the presence of another proxi-

mate cause. In that vein, it is well to remember that Bonner’s

claim is not that the requirement has precluded him, as a non-

resident of Virginia, from circulating nominating petitions at

all, but that he may only do so when accompanied by a resi-

dent witness.

Whereas a knee ailment like the one afflicting Bonner

would have disabled any circulator or witness without regard

12 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

to residency, the law of which Bonner complains targets him

and others of his ilk with laser precision; consequently, Bon-

ner’s legal disability relates more closely to his asserted injury

than does his physical infirmity. Moreover, Bonner’s medical

condition is ephemeral and, presumably, will have sufficiently

improved by 2016, but if the witness residency requirement

then remains on the books, he will yet be prohibited from cir-

culating petitions unencumbered. Lastly, we imagine that

Bonner could have overcome his uncooperative knee long

enough to sit down on a street corner and solicit passersby for

a few signatures (he did, after all, manage to attend his sched-

uled deposition). Had that happened, Bonner undoubtedly

would not have been as effective as when healthy, but his lim-

ited efficacy would have been even further hindered by the

presence of a resident witness.

There is substantial basis, then, to conclude that, when it

comes to encumbrances upon Bonner’s exercise of his First

Amendment rights, the witness residency requirement and his

medical infirmity are, to a discernible degree, complementary

of each other. The latter did not supplant the former in the

chain of causation. We can therefore say with a modicum of

confidence that the requirement is a concurrent cause of Bon-

ner’s alleged constitutional injury.7

III.

We next consider the district court’s award of summary

judgment to the plaintiffs on the merits of their claims. As the

law has developed following the Supreme Court’s decisions

7

We note finally that, so long as either the LPVA or Bonner has demon-

strated the requisite standing, we possess jurisdiction to decide the consti-

tutional question before us and determine the propriety of declaratory and

injunctive relief. See Village of Arlington Heights v. Metro. Housing Dev.

Corp., 429 U.S. 252, 264 & n.9 (1977) (observing that presence of "at

least one . . . plaintiff who has demonstrated standing" obviated the need

to "consider whether the other . . . plaintiffs have standing to maintain the

suit").

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 13

in Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. Amer-

ican Constitutional Law Foundation, 525 U.S. 182 (1999), a

consensus has emerged that petitioning restrictions like the

one at issue here are subject to strict scrutiny analysis. See Yes

on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir.

2008) (applying strict scrutiny to overturn Oklahoma prohibi-

tion on nonresident circulators of initiative petitions); Nader

v. Blackwell, 545 F.3d 459 (6th Cir. 2008) (declaring uncon-

stitutional, as failing strict scrutiny, Ohio ban on nonresidents

circulating nominating petitions); Nader v. Brewer, 531 F.3d

1028 (9th Cir. 2008) (invalidating, pursuant to strict scrutiny

analysis, Arizona deadline and residency provisions relating

to nominating petitions and circulator-witnesses). The Ninth

Circuit in Brewer recited the general rule that "the severity of

the burden the election law imposes on the plaintiff’s rights

dictates the level of scrutiny applied by the court." 531 F.3d

at 1034 (citing Burdick v. Takushi, 504 U.S. 428, 434 (1992)).

Hence, "an election regulation that imposes a severe burden

is subject to strict scrutiny and will be upheld only if it is nar-

rowly tailored to serve a compelling state interest." Brewer,

531 F.3d at 1035 (citing Burdick, 504 U.S. at 434). The trium-

virate of 2008 decisions in Savage, Blackwell, and Brewer

demonstrate a general agreement among our sister circuits

that residency restrictions bearing on petition circulators and

witnesses burden First Amendment rights in a sufficiently

severe fashion to merit the closest examination. But see Initia-

tive & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir.

2001) (upholding North Dakota proscription against nonresi-

dent initiative-petition circulators because "the regulation

does not unduly restrict speech").

The Board contests the application of strict scrutiny only

insofar as it presses its contention that the LPVA’s assertion

of injury can only be deemed contingent upon future circum-

stances, i.e., the sudden unavailability of resident circulators.

The severity of the burden imposed by the witness residency

requirement, according to the Board, is thereby attenuated

14 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

commensurately. Having rejected the Board’s position in con-

nection with its argument that the LPVA lacks standing, we

deem it equally without force on the merits. Strict scrutiny is

the proper standard.

A.

The Board maintains that the witness residency require-

ment serves the Commonwealth’s interest in policing fraud

potentially permeating the electoral process, in that: (1) it is

less difficult to confirm the identities of resident witnesses,

and thereby ensure they are qualified by age and not disquali-

fied by felon status; (2) witness residents in Virginia are sub-

ject to being subpoenaed by the authorities to answer

questions under oath concerning the circulation process, or to

be prosecuted for criminal activity; and (3) residents are sim-

ply easier to locate for investigatory or prosecutorial pur-

poses. The plaintiffs do not seriously dispute that the

prevention of election fraud is a compelling state interest. See

Savage, 550 F.3d at 1028 (assuming, arguendo, that state had

a "compelling interest in protecting and policing both the

integrity and the reliability of its initiative process"); Brewer,

531 F.3d at 1037 ("A state’s interest in ensuring the integrity

of the election process and preventing fraud is compelling."

(citation omitted)); Jaeger, 241 F.3d at 616 (recognizing

state’s "compelling interest in preventing fraud").

B.

The more substantial question, and the crux of this appeal,

is whether the Commonwealth’s enactment banning all non-

residents from witnessing nominating petitions — a measure

we presume to be effective in combatting fraud — is, notwith-

standing its efficacy, insufficiently tailored to constitutionally

justify the burden it inflicts on the free exercise of First

Amendment rights. See Krislov v. Rednour, 226 F.3d 851, 863

(7th Cir. 2000) ("[W]e must take into account . . . other, less

restrictive means [the state] could reasonably employ[, though

LIBERTARIAN PARTY OF VIRGINIA v. JUDD 15

it] need not use the least restrictive means available, as long

as its present method does not burden more speech than is

necessary to serve its compelling interests." (citations omit-

ted)). The Board insists that the integrity of the petitioning

process depends on "state election official access to the one

person who can attest to the authenticity of potentially thou-

sands of signatures," Br. of Appellants 34, access made more

difficult, perhaps, if the witness resides beyond the subpoena

power of the state.

The plaintiffs counter that the Commonwealth could com-

pel nonresidents, as a condition of witnessing signatures on

nominating petitions, to enter into a binding legal agreement

with the Commonwealth to comply with any civil or criminal

subpoena that may issue. Indeed, "[f]ederal courts have gener-

ally looked with favor on requiring petition circulators to

agree to submit to jurisdiction for purposes of subpoena

enforcement, and the courts have viewed such a system to be

a more narrowly tailored means than a residency requirement

to achieve the same result." Brewer, 531 F.3d at 1037 (citing,

inter alia, Chandler v. City of Arvada, 292 F.3d 1236, 1242-

44 (10th Cir. 2002); Krislov, 226 F.3d at 866 n.7). More

recently, in Savage, the Tenth Circuit reiterated that "requir-

ing non-residents to sign agreements providing their contact

information and swearing to return in the event of a protest is

a more narrowly tailored option." 550 F.3d at 1030.8

According to the Board, ostensible consent to the extraterri-

torial reach of the Commonwealth’s subpoena power does not

guarantee the requisite access, because nonresident witnesses

must yet be located and retrieved, perhaps by extradition or

rendition. There are few guarantees in life, however, and it is

hardly an iron-clad proposition that a similarly situated resi-

8

Such an agreement might also require prospective witnesses to attest

to their fitness to serve and, with respect to both residents and nonresi-

dents, supply such proof of eligibility as may be deemed sufficient.

16 LIBERTARIAN PARTY OF VIRGINIA v. JUDD

dent witness will be amenable to service and comply with a

lawfully issued subpoena.

Simply stated, the Board has produced no concrete evi-

dence of persuasive force explaining why the plaintiffs’ pro-

posed solution, manifestly less restrictive of their First

Amendment rights, would be unworkable or impracticable.

See Ashcroft v. ACLU, 542 U.S. 656, 665 (2004) ("[T]he bur-

den is on the Government to prove that the proposed alterna-

tives will not be as effective as the challenged statute.").

Surely nonresidents with a stake in having the signatures they

have witnessed duly counted and credited — whether that

stake be political, financial, or otherwise — will possess the

same incentive as their resident counterparts to appear at the

Commonwealth’s request and answer any questions concern-

ing the petitioning process.

Having fallen short of adducing the quantum of proof nec-

essary to place into issue the relative effectiveness of the

plaintiffs’ proposed alternative to the patently burdensome

witness residency requirement, the Board cannot prevail.

Given the facts as developed below and viewed in the proper

light, we have scant choice but to conclude, as the district

court did, that the requirement fails strict scrutiny and is

unconstitutional.

IV.

Pursuant to the foregoing, the judgment of the district court

is affirmed.

AFFIRMED