Breaking News: Rick Perry Files Suit to Get on Va. Ballot

You can access the complaint here.  The complaint focuses on Virginia’s ban on out-of-state circulators of petitions.  As I told the Washington Post in connection with a possible suit by Newt Gingrich on the same grounds, such a suit now faces long odds both legally and politically.  The initial hurdle is one of laches, the failure to bring suit before filing time.  This is an emergency of Perry’s (and Gingrich’s) own making.  Surely they knew of the requirement earlier.

I fully expect the defendants to raise the laches defense.  On the merits (should a court reach it), the courts are mixed on the residency requirement for petition circulators, though there is law that could help Perry.   Perhaps most relevant is this in-chambers opinion of Chief Justice Roberts in Lux v. Rodrigues.  The Chief found that a related aspect of Virginia’s law could well be unconstitutional under recent Supreme Court precedent, and that Fourth Circuit authority to the contrary may no longer be good law, but he still denied the complaining candidate extraordinary injunctive relief.

UPDATE:  A reader tells me that the 4th Circuit in Lux subsequently overturned its earlier precedent, though where things now stand is not entirely clear:

In both Meyer and  Buckley, the Supreme Court recognizedthat a signature requirement is generally adequate to ensure the popular support necessary to warrant ballot access. Indoing so, the Court undermined the only state interest that Davis identified in support of a residency requirement.Against the backdrop of these intervening decisions, we canno longer say that an in-district witness requirement is necessarily justified by a state’s desire to gauge the depth of a candidate’s support.

Our recognition that  Davis’s abbreviated residency-requirement analysis has been superseded should not be confused for a determination that the provision challenged hereoffends Lux’s constitutional rights. Neither  Meyer nor Buckley addressed the particular witness residency requirement atissue in this case. Moreover, we do not read either decision as foreclosing the possibility that something more than athreshold signature requirement may, in some circumstances, be constitutionally permissible as a means of ensuring popularsupport or achieving another state interest.

In other words, we hold only that the district court erred by relying on Davis to find that Lux’s complaint did not raise a plausible claim forrelief and do not otherwise address the merits of Lux’s constitutional challenge.As this case comes before us on appeal of a Fed. R. Civ.P. 12(b)(6) dismissal, we reserve substantive consideration of Lux’s claim for the district court in the first instance. Onremand, the court should conduct an independent analysis of the state interest served by the district residency requirementand, after determining the appropriate standard of review,conclude whether that portion of section 24.2-506 undulyrestricts Lux’s constitutional rights. See Celebrezze , 460 789. Both parties are free to advance additional arguments in light of our holding.

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