Wednesday, December 28, 2011

On the Rick Perry lawsuit

I read with interest the Complaint filed by my friend Hugh Fain on behalf of the Rick Perry campaign, seeking relief from the campaign's failure to meet the statutory requirements contained in Va. Code 24.2-545 to get on the ballot for the Republican Presidential primary in Virginia.

It raises two claims, the first is that the residency requirement for petition "circulators" is unconstitutional as a violation of the First Amendment, based on Buckley v. American Constitional Law Foundation, 525 U.S. 182 (1999). The second is that the requirement of signatures from 10,000 qualified voters with at least 400 qualified voters from each congressional district in the Commonwealth is itself unconstitutional as a violation of the First Amendment. The Complaint seeks injunctive relief against the enforcement of these two requirements.

Interestingly, the lawsuit does not address any issue of "petition verification" by the Republican Party of the sufficiency of the signatures, most likely because the Complaint acknowledges that the Perry campaign presented only 6,000 signatures.

Regarding the alleged residency requirement for petition "circulators," or witnesses, this requirement is not in section 24.2-545, as pointed out here, and the Complaint says only that it appears on the petition form required for use by the State Board of Elections. Section 24.2-521 contains the residency requirement for petition witnesses for some offices, but does not reference presidential campaigns. This ambiguity creates a state law issue that would seem to be preliminary to the constitutional issue - does the residency requirement even apply to candidates seeking to run in a presidential primary?

The residency requirement for petition witnesses contained in section 24.2-506 to get on the ballot for general elections other than as a party nominee has been upheld in a series of lawsuits mostly brought by Libertarian candidates, but its current status is somewhat in doubt following the Fourth Circuit's decision in Lux v. Judd. In Lux, the Court observed that while the residency requirement was upheld by the Court in Libertarian Party of Virginia v. Davis, 766 F.2d 865 (4th Cir. 1985), the holding in Davis may have been overruled by the Supreme Court's subsequent decisions in Buckley and Meyer v. Grant, 486 U.S. 414 (1988). The Lux court remanded the case to Judge Hudson, to determine whether the statutory requirement could be valid under some rationale other than the one briefly stated by the Court in Davis - to ensure that the candidate had a minimum level of local support. Other rationales that would support a residency requirement are expressed in the dicta from the Buckley case, which suggests that a state might require the witnesses to the signing of petitions to be Virginia residents so that they could be subpoenaed if need be, as non-residents could not.

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