ROBERT SIEGEL, HOST:
The Republican presidential candidates have been hammering on what they call activist judges, and they've been preaching the gospel of states' rights. But those ideologies were stood on their head recently when most of the candidates failed to get on the primary ballot in Virginia.
NPR's Teresa Tomassoni explains.
TERESA TOMASSONI, BYLINE: Rick Santorum has joked about banishing liberal federal judges to Guam. Rick Perry has been a longtime advocate for states' rights, calling himself a 10th Amendment-believing governor. And Newt Gingrich has repeatedly criticized the country's judicial system, targeting what he calls, quote, "activist judges." He's even suggested that Congress subpoena and arrest judges who make controversial rulings.
NEWT GINGRICH: Because I was, frankly, just fed up with elitist judges imposing secularism on the country and basically, fundamentally changing the American Constitution.
The courts have become grotesquely dictatorial, far too powerful, and now - and I think, frankly, arrogant in their misreading of the American people.
TOMASSONI: So when the candidates showed up to a federal courtroom in Richmond to complain about Virginia's ballot access law, the irony did not escape District Judge John Gibney. As the hearing began, Gibney smiled and asked Gingrich's lawyer what consequences he might face if he overturned a state law that's been on the books for decades. He said he wanted to make sure he wasn't going to be labeled an activist judge.
Gingrich's lawyer, Christian Adams, returned the smile and said he certainly wouldn't suggest the judge was an activist by taking on this case. This case, he said, could be solved well within the confines of the Constitution. His client failed to collect the required 10,000 signatures to get on the Virginia Ballot. Santorum, Perry and Jon Huntsman also failed.
In December, Perry filed a lawsuit against the Virginia State Board of Elections, arguing the state's strict ballot access laws were unconstitutional. He said they violated his freedoms of speech and association. Soon after, Gingrich and the others joined Perry's suit, asking that the state law be overturned so that they could all get on the ballot.
Gibney denied the request, saying the candidates should have filed their lawsuit months ago. By filing in December, he said, quote, "They played the game, lost, and then complained the rules were unfair." Perry and Gingrich promptly filed emergency appeals to get on the primary ballot. Yet within days, Perry was back to advocating for states' rights.
GOVERNOR RICK PERRY: And when I'm the president of the United States, the states are going to have substantially more rights to take care of their business and not be forced by the EPA - or by the Justice Department, for that matter - to do things that are against the will of the people.
TOMASSONI: Perry's spokesman, Ray Sullivan, said he saw no contradiction between Perry's words and actions.
RAY SULLIVAN: There are serious constitutional conflicts in our view with Virginia law. And we believe the courts should review those and take steps to protect the rights of Virginia citizens, as well as the presidential candidates, to access the ballot and give voters the choice that they deserve.
TOMASSONI: Gingrich's campaign did not respond to repeated requests for comment, and the 4th Circuit Court of Appeals quickly shot down his and Perry's request. In the end, states' rights seem to have won after all. As per Virginia law, only Mitt Romney and Ron Paul will be on the state's primary ballot, March 6th. They're the only two candidates who managed to collect the required 10,000 signatures.
Teresa Tomassoni, NPR News.