Lawsuit Abuse Running Rampant Among Republican Candidates

As every good conservative knows, lawsuit abuse is destroying America. Greedy plaintiffs filing frivolous suits, tying up the courts with cases they have no hope of winning -- you've heard it many times before. Which brings us to Rick Perry:

Texas Gov. Rick Perry, who along with Newt Gingrich didn’t submit the required number of signatures to petition to make it onto the Virginia Republican presidential primary ballot, is taking the fight for ballot access to federal court.

In a release sent late Tuesday, Perry’s campaign announced it has filed suit against the Republican Party of Virginia and the state board of elections in the Eastern District of Virginia over what the campaign claims is a ballot access statute that “limits the rights of voters to vote for the candidate of their choice.”

The Perry suit claims Virginia’s entire statutory scheme for getting on the presidential primary ballot is constitutionally flawed, but it zeros in on the state’s ban on the use of out-of-state petition circulators to gather signatures. Perry argues that the requirement that petition circulators be either registered voters in Virginia or eligible to vote in Virginia is what prevented him from gathering the necessary number of signatures.

Perry is so devoted to states' rights that he once suggested Texas might secede from the Union to free itself from Washington's oppressive hand. So naturally, when he couldn't get on the ballot in Virginia, the answer was to sue in federal court to overturn Virginia's election rules.

After Newt Gingrich compared his own failure to get on the ballot to Pearl Harbor, Mitt Romney shot back, "I think it's more like Lucille Ball at the chocolate factory" (young folks can see what he's talking about here). "You've got to get it organized." Indeed you do. Complying with each state's ballot access regulations isn't easy, but it's not as though it's some kind of impenetrable mystery that's nearly impossible to untangle. Four years ago, Hillary Clinton's campaign overlooked the fact that delegates were distributed on a proportional (not winner-take-all) basis, and so they were shocked when Barack Obama racked up a delegate lead by deploying his resources intelligently while the Clinton camp wasn't looking. You'd think that after that, if you were running a Republican campaign you'd hire somebody whose job it was to be familiar with ballot and delegate issues in every state, and insist that the campaign do what it took to make sure it complied. Or maybe not.

But to get back to the issue that we started with, this is an important reminder that conservative ideas about the courts are driven almost entirely by outcomes, and only the tiniest bit by principle. Conservatives talk a lot about "lawsuit abuse," but they don't really care about the fact that most lawsuits involve companies suing other companies. What they dislike are the lawsuits in which people with relatively little power, like consumers, successfully sue people with more power, like corporations. So their remedies to this "problem" all involve cutting off ordinary people's access to the courts, with things like caps on punitive damages that make suing when you've been harmed pointless (I wrote about this in more length with regard to health care here). And in a neat trick, this effort is combined with a simultaneous effort to eliminate the regulations that provide consumer or environmental protections, so the government can't protect you, and you can't get redress in the courts.

The same is true of conservatives' devotion to states' rights. They often talk about it in abstract terms, insisting that the government closest to the people is best able to understand their concerns and serve their interests. But it turns out they only believe that when the outcome is one they like. When the federal government tries to guarantee everyone health coverage over the objection of Republican-dominated states, conservatives insist on the primacy of states' rights. But when, say, the federal government insists that marijuana should be treated by the law like heroin and cocaine, over the objection of Democratic-dominated states, conservatives are quite happy with the primacy of the federal government, because they like the outcome.

So no conservative is going to say, "Gee, I thought Rick Perry felt the way I did about the courts and about the 10th Amendment. I'm appalled that he filed a federal lawsuit trying to overturn a state's election regulations!" Because they really don't care. If that's what it takes to get the outcome they like, they're fine with it. Conservatives didn't raise an objection to the result of Bush v. Gore, almost certainly the most brazen act of judicial activism in American history, and they're all hoping the Supreme Court will step into the political arena and overturn the Affordable Care Act.

You could say, "Aren't liberals just the same???" And I'd have to answer: no. The reason is that as far as I can tell, liberals are far more straightforward about these kinds of issues, not claiming fealty to some abstract principle they don't actually believe in. They are much less likely to use "judicial activism" as a code for "judicial decisions we don't like." They don't claim that when there's a conflict between the federal government and a state government, the federal government is always right. Sometimes the feds are right, and sometimes the states are right. Sometimes the courts should intervene, and sometimes they shouldn't. It depends. Of course, "It depends" doesn't work quite as well on a bumper sticker.

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