On March 1, many voters choosing the Republican ballot in Virginia’s presidential primary will be met with an unconventional surprise.
Pursuant to operation of GOP rules and Virginia Code Section 24.2-545, the state party’s governing body in September adopted a requirement that participants in the Republican presidential primary sign a statement of affiliation with the party. Although the form is different than what passed (instead of a party-owned form, it has been changed to a State Board of Elections form with different language), the operative portion remains the same:
My signature below indicates that I am a Republican.
Paul Prados, TBE contributor and opponent of the statement of affiliation, correctly pointed out, there is no oath involved, nor is there any pledge, despite the hyperbolic and misinformed rhetoric to the contrary. Prados also rightly recognizes the new requirement as an outgrowth of the perennial argument over using primaries or conventions for Republican nomination contests, and that it was not adopted as a means of suppressing any particular candidate’s votes.
Be that as it may, many still oppose the requirement for perfectly legitimate reasons. This post isn’t meant to debate the wisdom of the requirement. Instead, it is meant to discuss the very real threat to the fundamental rights of political parties that is posed by a lawsuit filed by a group of black pastors supporting Donald Trump last week against the State Board of Elections to stop implementation of the requirement.
On her own initiativeAt the request of the State Board, the judge in the case added the Republican Party of Virginia as a defendant in the suit on Monday.
Among the jumble of disorganized arguments in the plaintiffs’ complaint emerge three principal objections to the “loyalty oath” (as plaintiffs derisively and inaccurately characterize the statement):
(1) the requirement violates the civil rights of racial minorities;
(2) the statement is an unlawful implementation of a private political party’s requirement in a state-administered process; and
(3) a variety of technical defects doom implementation of the requirement.
Let’s start with the civil rights arguments and the bit about the state’s supposedly unencumbered control of primary elections:
A lot of the anger directed toward the statement stems from a fundamental misunderstanding of what a party’s primary is all about. Although a party can choose to allow any and all voters to participate, the process by which a party nominates its candidates is an inherently private action by a private (i.e., non-governmental) organization. The state has offered to administer political party primaries as one means of this, but it’s still a party process that is not inherently open to members of other political parties. Virginia code makes this explicit when, in the statute establishing the presidential primary adopted ahead of the 2000 presidential nomination contests, it included the following language:
If the party has determined that it will hold a presidential primary, each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party, as defined in § 24.2-101, subject to requirements determined by the political party for participation in its presidential primary. The requirements may include, but shall not be limited to, the signing of a pledge by the voter of his intention to support the party’s candidate when offering to vote in the primary.
(Emphasis added). Merely stating that one is a Republican is not “a pledge by the voter of his intention to support the party’s candidate.” In fact, it is a less restrictive alternative to such a pledge, and well within the scope of “requirements determined by the political party for participation in its presidential primary” contemplated by the statute.
Such a pledge was implemented in Virginia’s first presidential primary 16 years ago, after preclearance under Section 5 of the Civil Rights Act by the Department of Justice. In fact, the much more stringent requirements for participation in other party nominating contests, such as conventions, have been upheld in prior litigation and by the DOJ preclearance procedures numerous times over the last several decades. That is not because the requirements aren’t seen to exclude people from participation, but precisely because they do exclude people, in accordance with the Republican Party’s First Amendment right of free association. As the Supreme Court put it in California Democratic Party v. Jones:
The First Amendment protects the freedom to join together to further common political beliefs, which presupposes the freedom to identify those who constitute the association, and to limit the association to those people. In no area is the political association’s right to exclude more important than in its candidate-selection process. …The First Amendment reserves a special place, and accords a special protection, for that process because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power.
(Emphasis added, citations omitted). If plaintiffs prevail in this suit because the Virginia presidential primary statute is found to be an unconstitutional civil rights violation under the 14th Amendment, the Republican Party’s most fundamental rights under the First Amendment will have suffered a great blow.
With respect to the arguments relating to supposed technical defects in the implementation of the statement, the plaintiffs actually have a little more of a leg to stand on. I actually agree with the plaintiffs that the State Board should have adopted the form adopted by the RPV, rather than replace it with one of their own, replete with SBE-speak and ominous legalisms. But I don’t think that makes it constitutionally infirm. Plaintiffs advance a better argument when they cite to this language in the presidential primary statute:
The requirements applicable to a party’s primary shall be determined at least 90 days prior to the primary date and certified to, and approved by, the State Board.
The plaintiffs argue that because the State Board didn’t approve RPV’s requirement until 76 days before the primary, the requirement must be stricken. The judge is likely to find that argument to be without merit, both because a strict reading of the text only provides that the requirement be determined by the 90 day deadline (and not necessarily certified to, and approved by, the Board at that time), but also because, given the level of attention this has gotten in the press, it will be very difficult for anyone to argue they were harmed by defendants’ failure to meet a deadline which was designed to ensure voters have adequate notice of the requirement.
An initial hearing in the matter is scheduled for today in Richmond. Stay tuned to The Bull Elephant for complete coverage of additional developments.
Good analysis. Particularly the part about the overheated and dishonest description of the requirement.
I really don’t expect this lawsuit to go anywhere in the time that’s left. But the RPV isn’t out of the woods.
What happens when people don’t show up because of this stupid “non”-pledge? Haven’t you figured out that there are party hacks out there who will be comparing the poll numbers between the Dems and RPV? Numbers that can and probably will show up on Blitzer’s election night CNN show?
Are you prepared for an onslaught of media reporting Virginia turning blue because their numbers are bigger than yours? How far down this hole does the RPV intend to dig?
Non-signers Balloting for Bernie will slew the numbers even more.
Elections have consequences, even primaries.
I’ve never quite understood why we do not have registered parties in Virginia in the first place. To me, it makes sense. But what makes even less sense on this issue, the SCC voted back in June to have a primary instead of a convention. Knowing that we have open primaries in Virginia, the September vote for the affirmation / oath, whatever you want to call it – Sounds a lot like party remorse to me. Nor do I see the ‘cross-over’ problem for this election, since both parties primary on the same day. You can only vote one ballot or the other. And the independent Trump voters… Do you really think for one minute that if Trump does not win the party nomination, they’re going to vote Democrat? I think the greater risk would be they would stay home and not vote at all. Befuddled…. [Good article, tho!]
Thanks, Steve for helping to make sense of this issue.
We aim to please! Thanks.
It’s not correct that the judge added the Republican Party of Virginia on her own initiative. The State Board moved for the Republican Party to be added.
David, I was told her action was sua sponte. Have you seen reporting or any docket entries indicating that’s not correct?
See docket #s 7 & 8 on PACER, which led to the order joining the RPV that’s docket # 11.
Note (for anyone who does not already know this): Anyone can sign up for a PACER account. PACER is not user-friendly, but it’s usable if you know the court and either a case # or a distinctive party name. Once in the case, you can see the docket and access documents. The Eastern District of Virginia does not charge for orders or opinions. Other docket entries may have a $0.10 per page charge, which you’re clearly warned about before incurring it (unless you also install the RECAPthelaw browser extension and are looking for a document already made available through RECAP, in which case you can follow the RECAP link from the docket to the free copy on the Internet Archive). In any event, if you rack up less than $15 in PACER charges in a quarter, you’re not billed for your use.
Thanks, I wasn’t familiar with PACER.
Happy to help. I heard on the radio that the judge took the matter under advisement and expects to issue an order one way or another tomorrow.
I have to admit that I dislike the concept especially since there are more effective and meaningful options to achieve the proposed goal though apparently there is not majority support for them at the SCC or the GA legislative levels today. I still can’t quite understand the little to no real gain exhibited by this effort weighted against the large amount of negative PR it has and will continue to generate at the state and national level. In the field of public opinion it will be of NO consequence whether the outcome of this case is ruled in favor of the defendants or the plaintiffs, the resultant damage will not be significantly effected by any judicial ruling. I suppose you could conjecture that even a party win could be a greater party “loss” as it will continue to flame the grievance issues (correct or not) that this ill advised action has created in the first place. If Trump crushes the Virginia primary I believe you can look back at and assign this as having a not insignificant role in his success, as a meaningless piece of paper it is not going to serve as any inhibitor to independent or third party Trump voters and may likely be a motivation. As an aside this issue has gained national attention and I would not be so confident that any civil rights actions that the court may address under Virginia code will not be in the headlights of Federal AG Loretta E. Lynch and her very aggressive team of voting rights attorneys who have brought suits across the country under the Obama administration’s interpretations of section 203 of the Voting Rights Act with less apparent cause. This could get a lot more damaging in short order.
It is a big fat mess, and an embarrassment to VA. If they had a lick of sense they would drop it, but they do not have any sense, and it will backfire on them big time in one way or another.
I’ve never objected to the Statement based on anything in this piece.
What I don’t understand is why the party wants to encourage the perception that it’s run by an “Establishment” more interested in maintaining control than listening to voters. That’s exactly what’s driving so much voter disenchantment and the Statement seems to throw gas on the fire.
Given past history, there’s little doubt some Democrats will vote in our primary — they always have, which is how we got John Warner, etc. On the other hand, it seems this year of all years those Dems will be dwarfed by legitimate members of our grassroots base as well as independents who are rebelling against the direction Obama and the Congress are taking us. So the Statement would seem aimed at the second group rather than the first. Or so it seems to me.
It might be helpful if someone explained why that is wrong.