As Hans notes, Rick Perry has taken the lead in asking the federal courts to invalidate the arduous state qualification requirements that have kept him and several other GOP candidates off the ballot in Virginia. For what little it’s worth, I think the Virginia requirements are too taxing — that seems self-evident given that only Mitt Romney and Ron Paul have qualified. As a conservative, I’d like to see some conservatives in the mix, and as a citizen (albeit not of Virginia) I’d like to see all the obviously serious candidates able to compete in all the states, especially one as critical as Virginia will be come November.
But let’s put aside what we’d like to see and consider what is at stake in the lawsuit. It is nothing less than the sovereign state of Virginia’s power in our federalist system “to set the qualifications for those running for representative office.” The phrase I’ve quoted comes from Fed Up: Our Fight to Save America from Washington, Governor Perry’s book, which he has often touted on the campaign trail.
The book is a paean to the state’s rights, particularly the Tenth Amendment, which reserves to the states and the people any powers not delegated to the national government by the Constitution. What particularly — and aptly, I think — agitates Perry is the propensity of the federal courts and Congress to adopt extravagant constitutional theories that enable Washington to tell the states how to run their affairs. The governor strongly argues that our system means for the states to govern themselves with minimal interference from the federal authorities — the central government being limited to its few enumerated powers, which are largely concerned with security against foreign powers. Perry thus lauds the framers (at p. 25) for leaving to the state legislatures such matters as determining “the time, place, and manner” of elections within the state (he mentions “congressional elections” but there is no reason to think presidential primaries should be any different), as well as the power “to set the qualifications for those running for representative office[.]“
Here is the lawsuit Gov. Perry has filed in federal court against the Virginia State Board of Elections and the Republican Party of Virginia. In it, the governor argues that federal judges should interpret the First Amendment to the Constitution, as incorporated against the states by the Fourteenth Amendment, to reason that Virginia’s rules for qualifying candidates violate his right to free speech and association.
It is entirely plausible that what Perry seeks is a logical extension of precedents developed by the Supreme Court in Washington and applied by federal courts in Colorado, California, New York, Michigan, Wisconsin, Pennsylvania, and elsewhere (I don’t believe the Perry suit cites any cases from federal courts in Virginia). But it seems ironic that it is Governor Perry who is making this argument. Having spent some time with federal judges, I must say it would not surprise me if this irony were to be pointed out to the governor and his lawyers.