In Virginia, the Republican presidential primary is officially a two person race. Only two candidates for the Republican presidential nomination will appear on Virginia's primary ballot in March: Mitt Romney and Ron Paul. On Tuesday, the Fourth Circuit Court of Appeals denied a motion filed by Rick Perry seeking an injunction that would have ordered the Virginia Board of Elections to allow his name to appear on the state's primary ballot.

Perry filed the suit on December 27, four days after the state Republican party's chairperson, Pat Mullins, announced that neither Rick Perry nor Newt Gingrich had submitted enough valid signatures to secure ballot access for the Virginia primary. The suit – in which the Texas governor was joined by Newt Gingrich, Jon Huntsman and Rick Santorum – alleged that Virginia's ballot access regulations violate the free speech and equal protection clauses of the US Constitution and impose an undue burden on their candidacies.

In order to appear on a presidential primary ballot in Virginia, prospective candidates must file a declaration of candidacy along with 10,000 valid petition signatures collected by legal residents of the Commonwealth. The suit charged that the residency requirement for petition circulators represents a severe restriction of the fundamental right to free speech and association, since it would bar the candidates themselves from circulating their own petitions. In addition, it argued that the requirement of collecting 10,000 signatures in this way was unduly burdensome.

The appeals court did not rule on either of these issues, but rather upheld the finding of the US District Court that Perry simply waited too long to file the suit. Perry “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,” read the judicial order. The lower court's opinion, issued last Friday, was even more blunt.

“They waited until after the time to gather petitions had ended and they had lost the political battle to be on the ballot; then, on the even of the printing of absentee ballots, they decided to challenge Virginia's laws. In essence, they played the game, lost and then complained that the rules were unfair,” wrote US District Judge John Gibney.

Interestingly, however, Gibney also provided an opinion regarding the substance of Perry's suit beyond the technical question of its timing. In his opinion, Judge Gibney argues that the residency requirement for petition circulators is likely unconstitutional. He writes:

“By imposing a state residency requirement on petition circulators, the Commonwealth reduces the quantity of such speech available to its residents, and directly infringes upon the First Amendment rights of candidates, voters, petition circulators and political parties.”

On the other hand, Gibney found that the 10,000 signature requirement was reasonable by national standards.

“Virginia's requirement of 10,000 signatures is a minimal number. It represents 0.2% of the Commonwealth's registered voters. It is only 0.5% of the voters who turned out in the last statewide elections. No one can seriously argue that the rule is unduly burdensome. Six candidates made the same ballot four years ago under the same rules.”

Neither Rick Santorum nor Jon Huntsman, who has since withdrawn from the race, joined Perry's appeal of the initial decision. Gingrich filed a letter stating that he supported the motion.

At the time of this writing, it remains unclear whether Perry will take the case to the Supreme Court. A spokesperson for Newt Gingrich stated that the former Speaker of the House is studying the decision and weighing his options.