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    Rick Perry files suit over Virginia ballot access

    Rick Perry files suit over Virginia ballot access

    Rick Perry has filed a lawsuit over his exclusion from the Virginia ballot.

    His website link to the pleading is overloaded, so I don’t know the specifics, updates to follow.

    Update:  The link keeps freezing but I managed to download the Complaint, here it is.

    (added) I claim no expertise in election law, but it does surprise me that there are only two counts (restriction on use of out of state circulators and freedom of association/speech). It’s not clear that the reason Perry failed to meet the requirement was the use of out of state circulators, and requiring valid signatures (put aside number) would not seem to impose some unconstituional restriction. The complaint indicates that Perry submitted only 6000 valid signatures, but published reports indicated almost twice that many. I’m surprised there was no issue made of the fact that Romney and Paul petitions were not verified because of an arbitrary decision that only petitions under 15,000 would be checked, a decision which apparenly was changed only a few weeks ago. Again, I’m not claiming election law expertise, but it does seem like the Complaint has the wrong focus.

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    Aarradin | December 28, 2011 at 8:40 am

    “I’m surprised there was no issue made of the fact that Romney and Paul petitions were not verified because of an arbitrary decision that only petitions under 15,000 would be checked”

    Seems to me this lawsuit is about getting Perry on the ballot. What you are describing above would likely result in Paul / Romney’s petitions receiving the scrutiny they should already have had, with the result that either/both might find themselves off the ballot.

    If this lawsuit fails to get him back on, don’t be surprised if he or Gingrich sues again to get Paul / Romney off.

    Ok. Here’s my initial take on the Perry complaint, after reading the complaint and cross-checking against the most recent 4th Circuit Court of Appeals case that I could find on point.

    It appears that Lux v. Judd, No. 10-1997, decided July 6, 2011 by the 4th Circuit is going to partially control here. Lux was a House of Representatives candidate who did not live in the 7th district he was running in, and thus was ineligible to circulate petitions on his own behalf. It appears Lux has cemented Buckley, Meyer and Krislov as applicable precedent in the 4th Circuit regarding elections law.

    In Lux, the 4th Circuit said that “[a]gainst the backdrop of [Meyer and Buckley], we can no longer say that an in-district witness requirement is necessarily justified by a state’s desire to gauge the depth of a candidate’s support.”

    Footnote 5 in Lux notes the following in adopting 7th Circuit reasoning that ballot initiatives vs. candidates, and witnesses vs. circulators are false distinctions in this argument: “Meyer’s apparent rejection fo the proposition that something more than a threshold signature requirement is necessary to assure popular support is plainly applicable in the candidate context. Cf. Krislov v. Rednour, 226 F.3d 851, 861 (7th Cir. 2000).

    However, there’s a footnote in Lux that the Supreme Court’s decision in Buckley assumend without deciding “that a residence requirement would be upheld as a needful integrity-policing measure” that the SCOTUS was concerned with state residency requirements (in order to make the petition submitters subject to Sec. of State subpoena power. Buckley, 525 US 197.

    Due to procedural positioning, Lux was an appeal of a 12(b)(6) “failure to state a claim upon which relief can be granted” dismissal. Lux was remanded to the district court for the district court to conduct an independent analysis of the state interest served by the district residency requirement for witnessing signatures, and to conclude whether section 24.2-506 unduley restricts Lux’s constitutional rights.

    Back to the Perry complaint. I think that count 1 is a Trojan Horse to get Count 2 onto the complaint and make it look more reasonable. Count 1 is valid, but I don’t think that’s what they’re going for.

    My initial guess is that the Perry camp is setting up the argument that the Virginia Legislature’s 10K signature requirement is Unconsititutional due to the minimum requirements set per Congressional district (400 signatures per district) that is also set.

    My guess is that they’re going to argue that the excess signature requirement is “too severe a burden on core political speech, subject to strict scrutiny and that the state’s interest is not sufficient to justify the burden” imposed and thus serves no permitted purpose. That’s the only reason I can think of to argue that they submitted over “6000” signatures, rather than the 10,000 required by VA election law (400/district x 11 districts = 4,400).

    My further guess is that they’re NOT making the “arbitrary and capricious” argument against the VA Republican Party’s decisions about raising the “deemed” requirement because they’re hoping that they can take out the upper limit requirement entirely, leaving the arbitrary and capricious argument as a second salvo if they need it.

    All that being said, I think that they still are going to lose this challenge UNLESS they’re actually sitting on a pile of signatures collected by non-Virginia residents that they did not submit or that were rejected by the Republican Party. Awing1 above has a point that the Perry camp needs to suffer a rejection of proffered signatures by non-approved circulators before he’s got standing. I think that to say “well we would have done it differently if…” is too removed from the facts as they currently lay for the court to grant relief.

    Thanks Chuck, for the information and research. I was wondering why the Perry campaign was not going after the arbitrary nature of checking all signatures for validity under 15,000, but none of those that reach the 15,000 mark. I guess this is their opening bid and perhaps they are indeed sitting on signatures that were rejected because of non-approved circulators. Either way O really appreciate the research you have done to illuminate this further, thanks again.

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