Perry sues Virginia elections board to gain ballot access

posted at 9:00 pm on December 27, 2011 by Allahpundit

Taegan Goddard provides the obligatory zinger about a noted fan of states rights and the Tenth Amendment asking a federal judge to overrule Virginia’s preferences on ballot access. The statement from Team Perry:

“Gov. Perry greatly respects the citizens and history of the Commonwealth of Virginia and believes Virginia Republicans should have greater access to vote for one of the several candidates for President of the United States,” said Perry campaign communications director Ray Sullivan.

“Virginia ballot access rules are among the most onerous and are particularly problematic in a multi-candidate election. We believe that the Virginia provisions unconstitutionally restrict the rights of candidates and voters by severely restricting access to the ballot, and we hope to have those provisions overturned or modified to provide greater ballot access to Virginia voters and the candidates seeking to earn their support.”

Here’s the complaint, which is mercifully short. One interesting bit comes in paragraph 18, which says Perry submitted “over 6,000 petition signatures from qualified Virginia voters.” According to the Virginia GOP, he submitted more than 11,900 signatures total, which I guess means … only slightly more than half were from qualified voters? Good lord. The other important part, which you should take two minutes to read, is Count 1 spanning paragraphs 24 through 28. He’s arguing that Virginia’s requirement that petition circulators all be residents of the state who are either registered to vote or eligible to be registered imposes a too-heavy burden on his right to engage in political speech and therefore violates the First Amendment. Is he right? Well, here’s the leading Supreme Court precedent that he cites, which is also mercifully short. Skip down to section III and take two more minutes to read that. The question for the Court in that case was ever so slightly different: Colorado law allowed only currently registered voters to be petition circulators, not people who were eligible but who hadn’t registered yet. It was slightly more restrictive than Virginia’s system, in other words — and the Court found that it did in fact violate the First Amendment. Key quote:

Colorado seeks to ensure that circulators will be amenable to the Secretary of State’s subpoena power, which in these matters does not extend beyond the State’s borders… The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the “address at which he or she resides, including the street name and number, the city or town, [and] the county.”… This address attestation, we note, has an immediacy, and corresponding reliability, that a voter’s registration may lack. The attestation is made at the time a petition section is submitted; a voter’s registration may lack that currency.

ACLF did not challenge Colorado’s right to require that all circulators be residents, a requirement that, the Tenth Circuit said, “more precisely achieved” the State’s subpoena service objective… Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter… The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section.

In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure — a question we, like the Tenth Circuit … have no occasion to decide because the parties have not placed the matter of residence at issue — the added registration requirement is not warranted.

In other words, the Supremes specifically refused to say how demanding the state could be in setting qualifications for petition circulators. The only rule they laid down was that you can’t limit the group to registered voters; at the very least, both registered voters and people eligible to register must be permitted, which is what Virginia does. The next step beyond that is to ask whether the state can constitutionally limit circulators to just those two groups or whether they have to let any U.S. resident be a circulator so long as they’re willing to provide an address at which the secretary of state can reach them. That’s what Perry’s arguing here; obviously, he would have loved to be able to ship volunteers from Texas into Virginia and have them circulate petitions instead of wasting time recruiting local supporters to do it for him. So I ask again: Is he right? A law professor interviewed by NBC says the lawsuit “now faces long odds, both legally and politically” (partly because they should have challenged Virginia’s requirements earlier), but some federal appellate courts have sided with Perry on this. Here’s one case, from the Tenth Circuit, finding state residency requirements for petition circulators unconstitutional; two other federal appellate courts have ruled similarly. The question is whether the Fourth Circuit, which covers Virginia, will rule the same way. How lucky do you feel?