Intelligent life exists beyond Iowa, and even beyond New Hampshire. Before the Republican Party crowns its nominee, voters from other states should and will be heard. Or will they? According to Virginia law, many a lawful voter will not be allowed to vote for the candidate she truly favors on the day of the Virginia primary—March 6, to be precise. So far, no one seems to have highlighted this gaping flaw in the Virginia election code.
Virginia’s ultra-strict ballot-access laws, whose obstacle course kept every Republican presidential candidate off the ballot except Mitt Romney and Ron Paul, were challenged last week by Rick Perry’s legal team and supporters of Newt Gingrich. Last Friday four other GOP candidates signed onto Perry’s legal challenge as well.
Virginia’s ballot-access rules are indeed extreme, but it’s hard to say, as Perry’s lawyers are contending, that these rules are unconstitutional. Governments are allowed to print official ballots, and as long as they are in this business, surely they may choose to list only the names of the major candidates. Short lists plausibly promote democracy by making it easy for the ordinary voter to find and vote for his preferred candidate.
Governments don’t have carte blanche, of course, but Virginia’s ballot-access rules seem defensible. Virginia does not, for example, exclude persons from the ballot on improper grounds of race or sex. True, Virginia requires that each listed candidate must have presented 10,000 signatures of qualified voters—a high bar—but that line must be drawn somewhere. Virginia also requires that at least 400 signatures come from each congressional district. In this sense, not all signatures count equally. A signature surplus (above 400) from District A can never offset a signature deficit (below 400) from District B. But votes for individual district races are likewise not interchangeable, and no one thinks that districting per se is unconstitutional. So long as each district is the same size, the basic principle of one-person, one-vote is satisfied.
Virginia law also provides that only eligible voters are allowed to solicit qualifying signatures. Perry’s team is attacking this rule; but if Virginia can say that only eligible voters may vote, why can’t Virginia likewise say that only eligible voters may act as official signature gatherers? The real issue here is not whether ineligible persons can gather signatures. Constitutionally, anyone can gather signatures—and no one should ever be punished simply for gathering unauthorized signatures, absent some intent to defraud the signer or the state. But Virginia is not proposing to punish unauthorized gatherers. The state is simply choosing not to count these signatures as legally valid. Analogously, any Virginian is free to “vote” for whomever he wishes on March 7—but this “vote” doesn’t count, coming as it does a day late.