On January 5, Rick Perry filed an amended complaint in his Virginia ballot access case, Perry v Judd. This is the lawsuit in which Governor Perry hopes to win a court order, placing him on the Virginia Republican presidential primary ballot. The original complaint argued that Virginia’s law, banning out-of-state circulators, should be declared unconstitutional. The amended complaint retains that argument, but adds two more reasons why Perry should be put on the ballot.
The first new reason is that the statute literally does not require petitions to get on the ballot. The Virginia law, sec. 24.2-545B, says, “Any person seeking the nomination of the national political party for the office of President of the United States, or any group organized in this Commonwealth on behalf of, and with the consent of such person, may file with the State Board petitions signed by at least 10,000 qualified voters…”. Perry argues that the verb “may file” means that the petition is voluntary, not mandatory.
By contrast, the Virginia law concerning petitions for independent and minor parties says that petition “shall be filed.”
The other new argument Perry makes is that the Virginia Republican Party did not pre-clear the instructions for the 2012 petition with the U.S. Justice Department. Virginia is covered by section five of the Voting Rights Act, and under the U.S. Supreme Court decision Morse v Republican Party of Virginia, 517 U.S. 186 (1996), when political parties in states covered by section five change the rules for a candidate to be nominated, such party rules must also be pre-cleared. The Republican Party’s rules for the 2012 petition are somewhat different than the rules for that petition from 2008. It is somewhat ironic that the Governor of Texas is depending on the Voting Rights Act to help win his lawsuit, when Texas is also arguing simultaneously in the U.S. Supreme Court that Section Five of the Voting Rights Act is unconstitutional. The U.S. Supreme Court hears arguments in the Texas redistricting case on January 9, and Texas has defended the legislature’s redistricting plan partly on the theory that the Voting Rights Act, as applied in the redistricting case, violates the U.S. Constitution.