I’d like to take my turn addressing the Republican Party of Virginia’s Statement of Affiliation, but I want to make clear that the views expressed in this post do not necessarily reflect the views of any other person, organization, or entity.
The Republican Party of Virginia (“RPV”) has voted to adopt a primary election as the presidential candidate-selection method. It has also voted to require that all participants in the 2016 Virginia Republican Primary sign the following: “My signature below indicates that I am a Republican.” That requirement is in direct violation of the RPV’s State Party Plan.
There is no doubt that political parties have the right to choose a candidate selection process that limits participation to the party membership. Cal. Democratic Party v. Jones, 530 U.S. 567 (2000). Accordingly, the Republican Party of Virginia (“RPV”) has four options at its disposal: Caucus, Convention, Canvas, and Primary. Of those four options, the RPV’s State Central Committee voted for a Primary.
Under VA Code § 24.2-545(A), participation in a political party’s Primary election is open to “each registered voter of the Commonwealth.” This is known as an open Primary. The alternative is a closed Primary, in which participation is limited to registered members of a political party. Here in Virginia, voter registration does not include a party affiliation, and so a closed Primary is not an option in the Commonwealth unless and until the General Assembly modifies the Code of Virginia.
So, while the State Central Committee had three other candidate-selection methods at its disposal that would have excluded non-Republicans, it instead selected an open Primary.
Yes, I am well aware that the Republican party may set the requirements of participation in its primary. VA Code § 24.2-545(A) states that participation in a primary is “subject to requirements determined by the political party for participation in its presidential primary.” The operative language that follows states that “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.”
However, (and this is where things get interesting), while the requirements shall not be limited to pledges of that type, this does not give the RPV carte blanche to implement whatever it desires. Section II of the RPV’s State Party Plan defines “Primary” to be “as it is defined in and subject to the Election Laws of the Commonwealth of Virginia [(Title 24.2 of the Code of Virginia)], except to the extent that any provisions of such laws […] do not infringe the right to freedom of association.” This would not be an issue if the RPV had chosen a Caucus, Canvas, or Convention, as the provisions in the State Party Plan apply only to Primaries.
The Supreme Court has held that the freedom of association enshrined in the First Amendment necessarily includes a freedom of non-association. Requiring that participants in the primary sign a form stating “My signature below indicates that I am a Republican,” the RPV has voted to exclude would-be participants who have chosen to exercise their freedom of non-association, in direct violation of the RPV’s own State Party Plan.
The RPV’s State Central Committee voted for an open Primary, “subject to requirements determined by the political party.” By the terms of the RPV’s State Party Plan, those requirements must not infringe upon the freedom of association. The Statement of Affiliation does infringe upon that freedom, violates the State Party Plan, and must be discarded.