The Affiliation Statement’s Day in Court

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.