Rick Perry to 'Activist Judges': Save Me

The Texas governor scorns court meddling in state matters, but not when it benefits him.

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Reuters

Rick Perry appears to be riding into the sunset, but he is not leaving the stage without exercising a true politician's prerogative of cheerfully sacrificing any principle, no matter how strongly stated, when it becomes inconvenient.  

If there's one thing we know about Perry -- one dry-gulch bedrock to his cowboy constitutional philosophy -- it's that he just hates them activist judges and all the perverted things they have done to the Fourteenth Amendment. "[T]he Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism," he lamented in his book, Fed Up! Our Fight to Save America from Washington. In particular, courts "should be particularly protective of our founding structure -- a unique structure of dual sovereigns that placed power as close to the people as was practical so that the people could govern themselves."

Surely that would mean that the people of Virginia should have a right to determine what level of support a candidate needs to be a serious presidential candidate, deserving of a place on its primary ballot? Or should that decision be made by "unelected judges"?

Well, actually, unelected judges are suddenly looking right good to Gov. Perry.

Perry last week failed to qualify for the Virginia Republican Primary ballot, both a humiliating blow to his dignity and a concrete setback to his hope of remaining in the presidential race after his expected low showing in Iowa.  

Perry's suit is a request—a desperate plea—for a court to invent a rule

Well, that don't sit right with Perry, and now he is shopping for a judge who will agree. In a lawsuit filed Monday, Perry asks the federal courts to step in on his behalf. Nothing too startling about that -- if Perry feels the Virginia authorities had cheated him in some way that violates federal law or the Constitution, he has every right to invoke these sources of law in a court. But what's remarkable is the second count of his suit, in which he asks the District Court for the Eastern District of Virginia to invent a new constitutional norm about how many signatures a state can require for its ballots. (Newt Gingrich so far has not filed a suit, and his campaign contented itself with a characteristically nuanced statement comparing the long-announced ballot-access rule to the Japanese attack on Pearl Harbor.)

To qualify for the ballot, a presidential candidate has to collect the signatures of 10,000 registered Virginia voters who would attest that they intend to vote in the GOP primary. It's steep -- the 2008 Republican primary attracted just shy of 500,000 voters, making this a requirement of 2 percent of the votes cast -- but hardly a staggering burden in a commonwealth of more than 5 million registered voters.

Perry didn't fall a little short of his goal. He fell real short. By his own admission, he filed more than 6,000 valid signatures -- 40 percent less than the required total.

In his suit, Perry makes two claims. One has some support in the caselaw -- he says that by requiring the signature gatherers to be eligible Virginia voters, the state violates a line of cases that say that the First Amendment protects the right to use out-of-state personnel to gather signatures on some ballot petitions.

But the second claim comes screaming out of the clear blue Texas sky. "Virginia's requirement that a presidential primary candidate collect signatures from 10,000 qualified voters, including 400 qualified voters from each Congressional district in the Commonwealth... violates freedom of speech and association protected by the First and Fourteenth Amendments to the Constitution," Perry's complaint alleges.

I'm no election-law specialist, but I don't know any caselaw supporting this. Perry sure doesn't cite any. In the context of minor-party ballot access, the Supreme Court has repeatedly held that (as it determined in Anderson v. Celebrezze) states have "undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot...." In 1986, it approved a requirement that the Socialist Workers Party get signatures amounting to 1 percent of the voters in the state to qualify for the ballot. Perry was required to get 2 percent of the ballots cast -- or, to put it another way, one-fifth of one percent of the eligible voters. His signers had to state that they intended to vote in the Republican primary, which limits the field somewhat, but the opportunity was still there.

Why is 10,000 too many but 6,000 is not? What's the rule? Texas requires 4,500, meaning 300 each from at least 15 Congressional districts. Is that reasonable, but 10,000, including 400 from each of 11 Congressional Districts, is not? Perry's suit is a request -- a desperate plea -- for a court to invent a rule. Even if you or I might see a problem with the signature requirement (I admit I don't), this is precisely the kind of federal court meddling in local affairs that he thumps his chest against when it benefits criminal defendants, gay men and lesbians, or religious dissenters.  

Why is there never an activist judge when you need one?

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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