Election Law Challenger to Recoup $200K in Fees

     (CN) – A would-be congressman who took down a Virginia law that put residency requirements on candidate petition witnesses can collect more than $200,000 in attorneys’ fees, a federal judge ruled.



     Herb Lux hoped to represent Virginia’s Seventh Congressional District in the U.S. House of Representatives, but there was a problem. He lived in the First District.
     In support of his 2010 campaign for the independent ticket, Lux collected 1,220 signatures of citizens registered to vote in the seventh district. He filed those petitions, 87 percent of which he collected personally, along with a statement of qualification and a declaration of candidacy.
     Within two weeks, however, the Virginia State Board of Elections rejected the 1,063 signatures Lux had witnessed under a Virginia law that says such witnesses must reside in the same district as those they get to sign.
     Having failed to collect the required 1,000 approved signatures, Lux did not qualify to have his name included on the November 2010 ballot.
     Lux challenged the constitutionality of the residency requirement in a federal complaint, but a federal judge in Richmond did not strike it down until February 2012. About a month later, the Virginia General Assembly repealed the unconstitutional law. Legislators had been working on changing the law for some time, but the amendment did not take effect until March.
     The board of elections pointed to the voluntary legislative actions to avoid paying the attorneys’ fees of more than $256,000 demanded by Lux.
     U.S. District Judge Henry Hudson concluded that Lux could still recoup litigation costs as the prevailing party, in spite of the steps that Virginia took to repeal the law.
     The court reduced his award, however, to $200,877 in fees and costs.
     “Defendants’ emphasis on Lux’s failure to achieve his ‘primary’ objective – according to defendants, placement on the 2010 ballot – is misplaced,” Hudson wrote.
     “Rather than focus on ‘the relief that was most important to the plaintiff,’ district courts must evaluate the degree to which the plaintiff secured ‘the relief that was sought,'” he added (emphasis in original). “This inquiry is an objective one. Here, even if Lux’s lawsuit was motivated principally by his desire to secure a spot in the 2010 congressional election, his complaint asked for – and Lux achieved – considerably more.”
     Citing precedent, Hudson said: “‘By the time defendants bowed to the inevitable’ in this case, Lux ‘had in hand a judgment’ from the court ‘that gave [him] everything [he] needed.’ Indeed, save for this court’s denial of an interlocutory injunction, Lux ‘received exactly the relief he sought.’ … Such success simply cannot ‘be characterized as ‘purely technical or de minimus,” nor as merely ‘formal.'”
     The fees will go to Lux’s lead attorney, James Bopp Jr., and several associates, Richard Coleson, Jeffrey Gallant, Josiah Neeley, Anita Woudenberg, Kaylan Phillips, Scott Bienek, Jared Haynie, Austin Hepworth and Mark Matney. Matney, of Michael C. Tillotson LLC, acted as Lux’s local counsel.

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