… in Virginia’s Republican primary raises some interesting issues. Some election law experts have been quoted in the past 24 hours as being very dismissive of the suit. You can read the Complaint in U.S. District Court in Richmond here. Although I think it will ultimately lose, the constitutional question — why does Virginia require that the signatures only be collected by registered voters? — is one that is ripe for challenge in the appropriate case. Unfortunately for Rick Perry, I don’t think that his is the appropriate case.
The legal backdrop is that the U.S. Supreme Court has held, in a Colorado case — Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) — that the Constitution prohibits a state from attaching significant burdens on the process of passing petitions around. For example, a state cannot prohibit paid solicitors of petition signatures; that was decided in another Colorado case, Meyer v. Grant, 486 U.S. 414 (1988).
In Buckley, the Court held that three restrictions were invalid:
(1) the requirement that initiative-petition circulators be registered voters, Colo.Rev.Stat. § 1–40–112(1) (1998);
(2) the requirement that they wear an identification badge bearing the circulator’s name, § 1–40–112(2); and
(3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator.
The Supreme Court’s overall approach was to consider whether the restrictions significantly interfered with political speech:
…the First Amendment requires us to be vigilant … to guard against undue hindrances to political conversations and the exchange of ideas… We are satisfied that… the restrictions in question significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions.
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192, 119 S. Ct. 636, 642, 142 L. Ed. 2d 599 (1999).
The Court went on to discuss the number of registered voters in Colorado, the number of unregistered Colorado residents, and so on in a way that implies that those numbers matter (though ultimately their logic does not depend on the numbers). This is important because the Court also reiterated that there is no litmus test for approving or disapproving these regulations.
Interestingly, one restriction that the Supreme Court did uphold in Buckley was that anyone submitting a petition to get a matter on the ballot had to submit petitions in a number equal to 5% of those who had voted for the position of Secretary of State the last time there was an election for that position. The opinion does not state how many that is, but in 2010 about 1.6 million votes were cast for that position. 5% would mean that 80,000 signatures would have to be submitted. The Supreme Court held that a requirement like that — 8 times more signatures, in a state with about 5,000,000 residents — was not an unconstitutional burden. In Virginia, where we have 1.6 times the number of residents, we only require 10,000 signatures to get on the ballot. Would the Supreme Court regard that as a significant burden on the ability to advocate for change?
The decision in Buckley seems to say that it is a restriction that serves no compelling governmental interest on the part of the state, so the number doesn’t really matter. On the other hand, the caselaw going back into the 1980’s tells federal courts that there is no “litmus test” for looking at these sorts of restrictions.
Ultimately, Rick Perry’s suit will not achieve its purpose of getting him on the ballot, for two procedural reasons —
1. It is too late, and there is no time. The 1999 Colorado decision was based on a lawsuit brought in 1993. The law is not so settled here that is a slam dunk for Perry, and I doubt that the U.S. District Court would just throw out the law in the next week or so without a lot of discussion and evidence and argument.
2. And even if it were a slam dunk on the issue about which his lawyers feel most strongly — the illegality of the requirement that the petition-passers be registered voters — the fact is that he didn’t come close to the 10,000 signatures. If he had submitted 15,000 signatures on petitions that had been passed by people who were not registered voters, the issue would be starkly and clearly drawn. His answer, of course, is that they were trying to comply with the law, but that the difficulty of getting those signatures by complying with the law was just too great, and they shouldn’t be penalized for trying to do it legally. But this procedural posture will require the U.S. District Court to decide the sticky question — is 10,000 signatures an unconstitutional burden on the right of political figures to try to affect change in this country? And that is where I think Perry will lose.
Perry may well have a point that the registered-voter requirement is unconstitutional, but I doubt that the U.S. District Court will rule in his favor.
And in case you were wondering — there does not appear to be any ideological split on this issue — the basically liberal majority was joined by conservative Antonin Scalia in Buckley. The challenge had been brought by a conservative legal group, represented by Gale Norton, who would later be President George W. Bush’s Secretary of the Interior.
