                                                             Filed: 1/17/12
                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                 No. 12-1067


The Honorable Rick Perry,

                     Plaintiff-Appellant-Movant

The Honorable Newt Gingrich, The Honorable Jon
Huntsman, Jr., and the Honorable Rick Santorum,

                 Intervenor-Plaintiffs,

           v.

Charles Judd, Kimberly Bowers, and Don Palmer,
members of the Virginia Board of Elections, in
their official capacities,

                     Defendants-Appellees-Respondents.




                               ORDER



WILKINSON, AGEE, and DIAZ, Circuit Judges:

       The Honorable Rick Perry (hereinafter Movant) has requested

this   court    in    an   emergency   motion   to   issue   an   injunction

ordering Movant’s name “to appear alongside others on the ballot

for the Republican primary for the Commonwealth of Virginia, or

in the alternative, that this Court issue an injunction ordering

the Respondents not to order, print, or mail ballots prior to
the Court’s final consideration of this appeal.”1                      On January 13,

2012, the district court denied the Movant’s emergency motion

for a temporary restraining order and preliminary injunction.

This court is required to act with the utmost expedition in

ruling upon the emergency motion for injunctive relief because

under the Uniformed and Overseas Citizens Absentee Voting Act,

respondents must mail requested absentee ballots to military and

overseas voters by Saturday, January 21, 2012.                           See 42 U.S.C.

§ 1973ff-1(a)(8)(A).             For    the       reasons    expressed        herein,   the

court denies the motion for the requested injunctive relief.

       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.       Movant’s      request       contravenes          repeated   Supreme      Court

admonitions that federal judicial bodies not upend the orderly

progression of state electoral processes at the eleventh hour.

Movant     knew   long    before       now    the    requirements        of    Virginia’s

election     laws.        There        was    no     failure     of    notice.          The

requirements have been on the books for years.                         If we were to

grant the requested relief, we would encourage candidates for

       1
       The Honorable Newt Gingrich, intervenor in the proceedings
below, has filed a notice of appeal. He has notified the court
that he supports Movant’s emergency motion, and our ruling
necessarily applies to him as well.    No papers have been filed
by the Honorable John Huntsman or the Honorable Rick Santorum
regarding Movant’s emergency motion.


                                              2
President who knew the requirements and failed to satisfy them

to seek at a tardy and belated hour to change the rules of the

game.      This   would    not    be   fair   to   the    states    or   to    other

candidates who did comply with the prescribed processes in a

timely manner and it would throw the presidential nominating

process into added turmoil.



                                        I.

                                        A.

     Like many states, Virginia has a comprehensive regulatory

scheme governing its various elections, including presidential

primary contests.          Under the Commonwealth’s election laws, a

candidate    seeking      to   participate    in   a     Virginia   presidential

primary is required to file with the Virginia State Board of

Elections    (the   Board)       “petitions   signed      by   at   least     10,000

qualified voters, including at least 400 qualified voters from

each congressional district in the Commonwealth, who attest that

they intend to participate in the primary of the same political

party as the candidate . . . by the primary filing deadline.”

Va. Code Ann. § 24.2–545(B).

        In addition to requiring 10,000 signatures from qualified

voters, Virginia law places restrictions on who can circulate

petitions.     According to section 24.2-521 of the Virginia Code,

a “candidate for nomination by primary for any office shall be

                                         3
required to file with his declaration of candidacy a petition

for his name to be printed on the official primary ballot,” and

each signature on that petition must “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.”      Id. § 24.2–521.            Among other requirements, one must

be “a resident of the Commonwealth” to be qualified to vote in

Virginia.          Id.       § 24.2–101.           Consequently,         only    Virginia

residents can serve as petition circulators for the purposes of

a Virginia primary election campaign.

      Virginia         law     also       provides     that        the     “requirements

applicable to a party’s primary shall be determined at least 90

days prior to the primary date and . . . approved by . . . the

State    Board.”         Id.    § 24.2–545(A).              The    Board    in    turn    is

empowered to “make rules and regulations and issue instructions

and     provide        information”         that     is     consistent          with     the

Commonwealth’s election laws.                 Id. § 24.2-103.            In keeping with

these    provisions,           the    Board       adopted    a     document      entitled

“Deadlines,        Duties       and       Ballot     Access        Requirements”         for

Virginia’s 2012 presidential primary contest on May 25, 2011.

The document made clear that candidates were required to file

their “Consent/Declaration of Candidacy” as well as petitions by

December 22, 2011.            In its “Petition Requirements,” the document

also reiterated that a candidate must provide on each page of

                                              4
the petitions “an affidavit signed under oath by the person who

circulated it that . . . s/he is registered, or eligible to be

registered, to vote in Virginia.”

       Under this regulatory scheme, a wide array of candidates

has managed to access the Virginia primary ballot.            In 2008, for

example, six candidates qualified for the Virginia Republican

primary ballot (Rudy Giuliani, Mike Huckabee, John McCain, Ron

Paul, Mitt Romney, and Fred Thompson).             And nine candidates

qualified for the Virginia Democratic primary ballot in 2004

(Wesley Clark, Howard Dean, John Edwards, Dick Gephardt, John

Kerry, Dennis Kucinich, Lyndon LaRouche, Joe Lieberman, and Al

Sharpton).    Although some of these candidates garnered a small

percentage of the primary vote, they all were able to comply

with   Virginia’s    10,000   signature    requirement   as   well   as   its

residency requirement for petition circulators.

                                    B.

       Movant filed his Statement of Candidacy with the Federal

Election Commission (FEC) on August 15, 2011, and signed and

affirmed his Declaration of Candidacy for the Commonwealth of

Virginia on October 13, 2011.             On December 22, 2011, Movant

submitted petitions containing less than 10,000 signatures to

the Board.

       Intervenor Gingrich filed his FEC Statement of Candidacy on

May 16, 2011.       On December 22, 2011, he submitted his Virginia

                                    5
Declaration        of       Candidacy   and        his      petition      signatures.

Intervenor Gingrich claims that he submitted 11,050 signatures,

but the Board states that less than 10,000 of the submitted

signatures were valid.

      Intervenor Huntsman filed his Statement of Candidacy with

the FEC on June 28, 2011.               He did not file a Declaration of

Candidacy in Virginia or submit any signature petitions to the

Board.    Intervenor Huntsman’s candidacy was withdrawn on January

16, 2012.

      Intervenor Santorum filed his FEC Statement of Candidacy on

June 6, 2011.           The parties disagree as to whether he submitted

his Virginia Declaration of Candidacy.                   Intervenor claims that

he   submitted     more      than   8,000   signatures       but   that    the   Board

refused   to     accept      them   because      he   had    not   met    the    10,000

signature threshold.

      On December 22, 2011, the Board announced that Intervenors

Huntsman and Santorum had not submitted the requisite petitions

under Virginia Code § 24.2-545(B) and would not be certified for

the placement of their names on the presidential primary ballot.

The next day, December 23, 2011, Republican Party Chairman Pat

Mullins     made        a    preliminary        determination      and    publically

announced that Movant and Intervenor Gingrich had not submitted

enough valid petition signatures to be placed on the ballot.                        On

December 27, 2011, Movant filed a complaint for declaratory and

                                            6
injunctive relief against defendants-respondents Charles Judd,

Kimberly Bowers, and Don Palmer, members of the Board, as well

as Mullins.     On January 4, 2012, Intervenors Gingrich, Huntsman,

and Santorum filed a motion to intervene, which the district

court     granted.            Movant     and         Intervenors     (collectively,

plaintiffs)         alleged     that      the         Commonwealth’s       residency

requirement     for      circulators           and     its      10,000    signatures

requirement violated their First Amendment freedoms of speech

and association and sought a preliminary injunction ordering the

defendants to certify them as candidates for the primary ballot.

                                          C.

        Following an evidentiary hearing, the district court denied

plaintiffs’ motion for a preliminary injunction on January 13,

2012.     The court first determined that the equitable doctrine of

laches     barred     their    request     for        relief.      It    found   that

plaintiffs could have brought their constitutional challenge to

Virginia’s    residency       requirement       for     petition    circulators    as

soon they were able to circulate petitions in the summer of

2011, but instead chose to wait until after the December 22,

2011     deadline    before     seeking       relief.        The   district      court

concluded this delay “displayed an unreasonable and inexcusable

lack of diligence” on plaintiffs’ part that “has significantly

harmed the defendants.”           Specifically, it determined that the

delayed nature of this suit had already transformed the Board’s

                                          7
orderly schedule for printing and mailing absentee ballots “into

a chaotic attempt to get absentee ballots out on time.”                                          The

district       court    consequently         held          that     laches      barred      their

request for relief.

        While the district court noted that its “decision on laches

resolves the motion,” it nevertheless addressed the question of

whether plaintiffs would be entitled to preliminary injunctive

relief in the absence of laches in order to permit the parties

“a   complete        review    on   any    appeal.”               With    respect     to    their

challenge       to     Virginia’s     10,000          signatures          requirement,           the

district       court    concluded         that       plaintiffs          were    unlikely        to

succeed.        Noting      that    the    Commonwealth’s            requirement           was   “a

minimal     number”           and   that         “much       more         onerous”       numeric

requirements         for      accessing         the       ballot         have   been       upheld

previously,      the       court    concluded         this        election      law    was       not

“unduly burdensome” on plaintiffs’ rights.                               The district court

found    the    residency       requirement           to    be     more     troubling.           It

determined that Virginia’s residency requirement for petition

circulators “is highly unlikely to withstand [plaintiffs’] First

Amendment challenge” based on its conclusion that the law likely

triggered      strict      scrutiny       and       was    not     narrowly      tailored        to

achieve a compelling state interest.                              The court nevertheless

admitted that it “cannot fashion relief that does not include



                                                8
compliance with the 10,000 signature requirement” and denied the

requested relief on laches grounds.

                                    D.

      On January 15, 2012, Movant filed an emergency motion with

this court seeking an injunction ordering the Board to place his

name on the ballot or, in the alternative, to delay the mailing

of absentee ballots until a final consideration of his motion

had occurred.    Movant contends that the district court erred in

its application of laches and that he meets the requirements for

preliminary injunctive relief.       His chief challenge continues to

be   to   Virginia’s   circulator   residency   requirement,   which   he

contends unconstitutionally abridges his ability to engage in

political speech.

      We review the district court’s denial of Movant’s request

for a preliminary injunction for “abuse of discretion, accepting

the court’s findings of fact absent clear error, but reviewing

its conclusions of law de novo.”         Child Evangelism Fellowship of

Md., Inc. v. Montgomery County Pub. Sch., 373 F.3d 589, 593 (4th

Cir. 2004).     We keep in mind that a preliminary injunction is

“an extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.”          Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).             In

order to succeed, Movant “must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable

                                    9
harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the

public interest.”           Id. at 20.

     We also note that Movant seeks mandatory injunctive relief

here.      Ordinarily,         preliminary       injunctions      are    issued     to

“protect the status quo and to prevent irreparable harm during

the pendency of a lawsuit ultimately to preserve the court’s

ability to render a meaningful judgment on the merits.”                       In re

Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.

2003).    Movant, however, seeks to alter the status quo by having

a federal court order the Board to include his name on a primary

election ballot.            But such “[m]andatory preliminary injunctive

relief in any circumstance is disfavored, and warranted only in

the most extraordinary circumstances.”                 Id. (citation omitted).

Consequently,     our       “application    of   th[e]     exacting     standard   of

review    [for   preliminary        injunctions]      is   even   more    searching

when” the relief requested “is mandatory rather than prohibitory

in nature.”      Id.

     We   cannot       grant    Movant’s    request    for   this     extraordinary

remedy.    We find it unnecessary to address whether Movant would

likely    succeed      in    his   constitutional     challenges        because    the

district court was correct in concluding that the defense of

laches bars the requested relief on the instant motion in any

event.

                                           10
                                                 II.

        Movant       contends         that       the    district        court      abused       its

discretion in determining that the equitable doctrine of laches

bars his motion for a preliminary injunction.                              We do not agree.

An affirmative defense to claims for equitable relief, laches

requires       a    defendant         to     prove     two   elements:          “(1)    lack     of

diligence by the party against whom the defense is asserted, and

(2) prejudice to the party asserting the defense.”                                 Costello v.

United States, 365 U.S. 265, 282 (1961).                               We believe that the

Board was able to satisfy both elements of this defense.

                                                  A.

        We shall first consider the question of Movant’s lack of

diligence.           Movant     argues        that     the   district          court    erred    in

concluding         that    he    was       not    diligent       in    pursuing        his    First

Amendment challenge to Virginia’s various election laws.                                        To

prove    a    lack    of    diligence,           the    Board    must     show    that       Movant

“delayed inexcusably or unreasonably in filing suit,” White v.

Daniel,       909    F.2d       99,    102       (4th     Cir.        1990),     and    that     is

unquestionably what happened here.

        Despite the fact he was able to bring these constitutional

challenges for over four months before the filing deadline of

December 22, 2011, Movant waited until the eleventh hour to

pursue       his    claims.       As       the     district      court     found,       Movant’s

                                                  11
cognizable injury occurred no later than August 13, 2011, the

day on which he declared his candidacy for President.                                   At that

point, the Commonwealth’s residency requirement prevented him

from using non-Virginian petition circulators.                                 As a matter of

law, that requirement was ripe for First Amendment challenge.

See, e.g., Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)

(holding     that      a     pre-enforcement         First     Amendment         challenge     to

Virginia’s open primary law “presents a purely legal question”

and    is   thus      “fit    for    review”).         Moreover,          Movant      had   every

incentive to challenge the requirement at that time.                                  Success in

an early constitutional challenge would have allowed Movant to

maximize the number of his petition circulators and minimize the

amount      of     time      it     took   to    acquire       the        requisite         10,000

signatures.           Nevertheless,        he    chose    to    sit       on    his    right   to

challenge this provision until after he had been denied a place

on the ballot.             This deliberate delay precludes the possibility

of equitable relief.              For “equity ministers to the vigilant, not

to those who sleep upon their rights.”                           Texaco P.R., Inc. v.

Dep’t of Consumer Affairs, 60 F.3d 867, 879 (1st Cir. 1995).

       Movant’s delay was not the result of a lack of notice or

clarity on the part of Virginia.                       The Commonwealth’s election

laws     state      in       unmistakable       terms        that     a     “candidate         for

nomination       by      primary     for   any       office    shall       be    required       to

file . . . a petition for his name to be printed on the official

                                                12
primary ballot,” Va. Code Ann. § 24.2-521 (emphasis added), and

that “[s]uch petitions shall be filed with the State Board by

the primary filing deadline.”                     Id. § 24.2-545(B).             The Board set

December 22, 2011 as the filing deadline for this primary on May

25, 2011.      Furthermore, “[e]ach signature on the 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.”                           Id. § 24.2-521 (emphasis

added).

       Amended in 2000, the circulator residency requirement has

been    in   place       for    over       a    decade     and    has       governed       multiple

presidential            primaries.               And     plaintiffs’            own        exhibits

demonstrate        that        the     Board       adopted         a        document      entitled

“Deadlines, Duties and Ballot Access Requirements” on May 25,

2011, which stated that “[c]andidates wishing to participate in

the    presidential        primary         must    follow       the     procedures         outlined

below,” including the “Petition Requirement[]” that they must

“provide      an   affidavit          signed       under       oath     by    the     person    who

circulated it that . . . s/he is registered, or eligible to be

registered,        to    vote    in    Virginia.”              (emphasis        in       original).

Virginia has done nothing to lead anyone astray with respect to

this    requirement.             The       residency        requirement          for      petition

circulators was unambiguous and available for all to see.                                      Two

candidates     had       no    difficulty         discerning           or    fulfilling       these

                                                  13
requirements,           nor         did    multiple       candidates         in        presidential

primaries          in   the     past.        If     Movant      believed       this       provision

violated       the      Constitution,          he       could    and     should        have        acted

expeditiously.

        If    we    were       to    find    Movant’s      delay       excusable,         we       would

encourage candidates to wait until the last minute to bring

constitutional            challenges         to    state     election        laws.           Once      a

candidate learned he had been denied a place on the ballot, he

would    take       his    disappointment           to    the    courthouse            and   hapless

state election boards would be forced to halt their scheduled

election processes to wait for a ruling.                               Challenges that came

immediately         before          or    immediately      after       the     preparation           and

printing of ballots would be particularly disruptive and costly

for state governments.                    See Dobson v. Dunlap, 576 F. Supp. 2d

181, 187 (D. Me. 2008) (applying laches to bar a constitutional

challenge to a state election law after noting that the state

had   “invested           approximately           225    person        hours      in    designing,

preparing and proofing the paper ballots”).                              “[T]here must be a

substantial regulation of elections if . . . some sort of order,

rather than chaos, is to accompany the democratic processes,”

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), and we are

loath    to    reach       a    result      that    would       only    precipitate            a    more

disorderly presidential nominating process.



                                                   14
        What is more, by permitting candidates to wait until after

the ballot has been set to bring their challenges, we would

perforce leave to utter speculation the question of whether any

legal foundation exists for the ultimate remedy of adding a

candidate’s name to the ballot.                 The belated nature of Movant’s

suit, for instance, makes it all the more difficult to determine

with     any   confidence        whether    a    particular     injury   is     even

traceable         to      the    allegedly        unconstitutional       residency

requirement.       See Lujan v. Defenders of Wildlife, 504 U.S. 555,

590 (1992) (holding that in order to demonstrate standing, a

plaintiff must allege that its injury is “fairly traceable to

the defendant's allegedly unlawful conduct”).                   Movant failed to

submit petitions containing at least 10,000 signatures to the

Board     under        section   24.2–545(B)      of   the    Virginia   Code,    a

requirement the district court noted would pass muster “even

under the strict scrutiny standard.”                   While Movant of course

predicts that he would have met the 10,000 signature threshold

if only he had been allowed to use non-Virginia residents to

gather signatures, such counterfactual speculation is not the

office of the federal judiciary.                   We have no inkling as to

whether Movant would have actually been able to secure 10,000

signatures,        even     if   non-Virginia       residents    were    able     to

circulate his petitions.            Inviting delayed challenges like the

one before us today would leave this court with only the most

                                           15
infirm     evidentiary         basis        upon      which    to     grant       the    relief

requested.

        Sanctioning Movant’s delay would not only necessitate such

speculation,       it    would       also    require        federal      courts    to   select

which    candidates       to    place       on    state     election       ballots      without

appropriate legal guidance.                   Here, Movant and Intervenors are

not similarly situated with respect to the numeric signature

requirement.       In the district court proceedings, Movant claimed

to have submitted more than 6,000 signatures, whereas Intervenor

Santorum claimed to have submitted more than 8,000.                                Intervenor

Gingrich,     by        contrast,       claimed        to     have       submitted       11,050

signatures, less than 10,000 of which were deemed valid by the

Board.     And Intervenor Huntsman, whose candidacy has now been

withdrawn, did not submit any signatures to the Board or even

submit a Declaration of Candidacy.                      If we were to grant relief

in these sorts of cases at all, we might be forced into the

unenviable enterprise of trying to decide which parties are more

deserving than others for purposes of ballot placement.                                    The

basis in law on which we would pick and choose among disparately

situated candidates is utterly unclear to us, and yet such is

the predicament into which the absence of any timely initiation

of legal action seeks to place the court.                            It is of course the

function    of     state      electoral       requirements          to    avoid    just   such

eventualities,          and    the    Movant’s        delay     in       challenging      these

                                                 16
established election requirements fails to exhibit the necessary

diligence.      See, e.g., Fulani v. Hogsett, 917 F.2d 1028, 1031

(7th Cir. 1990) (citing Williams v. Rhodes, 393 U.S. 23, 34-35

(1968) (“[A]ny claim against a state electoral procedure must be

expressed expeditiously.”)).

                                              B.

      With respect to the second prong of the laches defense,

Movant asserts that the district court erred in determining that

respondents were prejudiced by any delay on his part.                         We find

Movant’s argument unpersuasive.               His lack of diligence clearly

prejudiced the respondents, whose planning has been thrown into

far   greater     confusion    than   would        have   been   the   case   with    a

timely legal action.           Ballots and elections do not magically

materialize.       They require planning, preparation, and studious

attention    to    detail     if   the   fairness         and    integrity    of    the

electoral process is to be observed.

      Virginia has 134 electoral jurisdictions, which administer

elections based on guidelines implemented by the Board.                            Each

locality must print its own ballots, which must be approved by

the Board.      See Perry v. Judd, No. 3:11-CV-856-JAG, slip op. at

1-2, 4 (E.D. Va. Jan. 10, 2012); Declaration of Don Palmer at 2

(Jan. 10, 2012).       As the district court noted, “Don Palmer, the

Secretary of the State Board of Elections, testified without

contradiction that printing ballots is complex and requires a

                                         17
number of technical steps to imbed information into the ballots

themselves and to program computers to count them.”

       In order to promote fair and efficient elections, the Board

sets a timetable for localities to design ballots, order them

from printers, proofread mock-ups, and mail them out.                         For the

2012 presidential primary, the Board allowed candidates to begin

circulating petitions to obtain the requisite 10,000 signatures

on July 1, 2011.            The candidates were instructed to submit their

signature petitions by December 22, and by December 27 the party

chairmen were to certify the names of candidates qualified to

appear   on    the      ballot.         On   December   28,    the    Board    was   to

determine the order of the names on the ballot by lot.

       Under federal and state law, the Board and the localities

must prepare and mail absentee ballots to military and overseas

voters   at    least        45   days    before   the   election.        42     U.S.C.

§ 1973ff-1(a)(8)(A); Va. Code. Ann. § 24.2-612.                       The Board is

also   bound       by   a    consent     decree   to    supervise     all     Virginia

electoral jurisdictions and mandate full compliance with the 45-

day requirement.            The Republican primary election is to be held

on   March    6,    2012,     making    January   21,   2012    the    deadline      for

compliance.        Because January 21 is a Saturday, most electoral

boards will mail absentee ballots by Friday, January 20.

       The 45-day requirement provides the Board and localities

with a tight window for getting ballots printed and mailed.                          To

                                             18
meet this deadline, the Board set January 9, 2012 as the target

date for localities to complete the preparations for printing of

ballots.             Accordingly,         before       the     January       13     preliminary

injunction hearing was even held, nearly all of the 134 election

jurisdictions had already submitted their ballot proofs to the

Board for approval.                 Declaration of Don Palmer at 2 (Jan. 10,

2012).         In        addition,     the   Board      had     already      approved         these

ballots,           and    based     on    that      approval,      nearly         all    of     the

localities had already given their printer permission to print

them.        Id.     Moreover, jurisdictions that use voting machines for

in-person          absentee       voting     had      already    employed         third       party

vendors to program these machines.                     Id. at 3.

        Given       these     undisputed         facts,      respondents          have    clearly

suffered prejudice due to Movant’s lack of diligence.                                     Movant

has already disrupted the Board’s carefully planned schedule for

meeting the demanding 45-day requirement, creating confusion for

election officials across the state.                          In addition, because most

of     the    printing        has      already      been     authorized       or    completed,

Movant’s requested relief would force expensive reprinting of

ballots.           Such reprinting -- not to mention other delays caused

by the pending litigation -- would likely prevent respondents

from complying with their obligations under federal and state

law.     Moreover, where absentee ballots are mailed in accordance

with     the        January       21     deadline      and    where      a    federal         court

                                                 19
subsequently granted the requested relief, officials would have

to send a second and different ballot to each voter, which would

risk confusion on the part of those voters and increase the cost

and difficulty of administering the election.

       In a strict sense, the prejudice caused by Movant’s delay

is to the respondents alone, but in a broad sense, the public is

potentially prejudiced as well, as respondents are charged with

ensuring the uniformity, fairness, accuracy, and integrity of

Virginia elections.         This is a state interest the Supreme Court

has repeatedly credited.            See, e.g., Clements v. Fashing, 457

U.S.   957,    965    (1982)    (“States     have    important    interests   in

protecting the integrity of their political processes [and] in

ensuring that their election processes are efficient . . . .”);

Jenness v. Fortson, 403 U.S. 431, 442 (1971).                Both the ballot

access requirements and 45-day mailing requirement were enacted

to advance this important interest.                  In filing at this late

hour, so close to the 45-day period, Movant has come perilously

close to asking the federal courts to have state officials act

in disregard of federal law.

       The Supreme Court has repeatedly expressed its disapproval

of such disruptions.           In fact, applications for a preliminary

injunction granting ballot access have been consistently denied

when they threaten to disrupt an orderly election.                  Fishman v.

Schaffer,     429    U.S.   1325,   1330    (1976)   (Marshall,    J.,   Circuit

                                       20
Justice) (denying ballot access injunction in part on the ground

that “applicants delayed unnecessarily in commencing [the] suit”

until “[t]he Presidential and overseas ballots have already been

printed; some have been distributed[, and t]he general absentee

ballots are currently being printed.”); Westermann v. Nelson,

409 U.S. 1236, 1236-37 (1972) (Douglas, J., Circuit Justice)

(denying   injunction   “not   because   the   cause   lacks    merit   but

because orderly election processes would likely be disrupted by

so late an action.”); see also Williams v. Rhodes, 393 U.S. 23,

34-35 (1968) (denying a political party’s ballot access request,

despite the unconstitutionality of the relevant statute, because

“relief cannot be granted without serious disruption of election

process”).

     These are not just caution lights to lower federal courts;

they are sirens.2       Consistent with such admonitions from the

Supreme Court, we decline to disrupt an orderly election process

by granting Movant’s belated request for relief.               Respondents


     2
       And the Court’s message has not been lost on our sister
circuits, which have repeatedly denied similar requests for
injunctive relief. See, e.g., Fulani v. Hogsett, 917 F.2d 1028,
1031 (7th Cir. 1990) (finding laches barred Movant’s claim where
Movant waited eleven weeks to file suit as election approached);
Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (“As time
passes, the state’s interest in proceeding with the election
increases   in  importance   as  resources   are  committed  and
irrevocable decisions are made, and the candidate’s claim to be
a serious candidate who has received a serious injury becomes
less credible by his having slept on his rights.”).


                                  21
have demonstrated that they were prejudiced by Movant’s lack of

diligence.        Consequently, the district court did not err in

concluding that laches bars Movant’s motion for a preliminary

injunction.



                                          III.

      We find no abuse of discretion on the part of the district

court in denying this motion for a preliminary injunction on the

basis of the equitable doctrine of laches.                     It is too late in

the   day    to     grant    Movant’s     requested      emergency       relief    upon

appeal.     We do not address in any fashion the merits of Movant’s

constitutional        challenge      to     Virginia’s    circulator       residency

requirement because as the district court noted, “a decision on

laches resolves the motion” due to the fact that it operates as

an affirmative defense.             For even if we assumed for purposes of

argument     that    the     residency      requirement       violated     the    First

Amendment,    laches        would   still    preclude    us    from   granting      the

emergency relief that Movant seeks.                For the reasons expressed

herein,     the   court     denies    Movant’s    request      for    an   injunction

ordering respondents either to place his name on the ballot or

to refrain from printing or mailing ballots until the conclusion

of these proceedings.          The motion is accordingly hereby

                                                                                 DENIED.



                                            22
