|
“We are the children of our landscape; it dictates behavior and even thought in the measure to which we are responsive to
it.” --Lawrence Durrell
Can the composition of political parties in Virginia be cultivated and shaped, like a gardener landscapes a yard? The answer is an emphatic “yes” if a lawsuit that is attracting very little attention succeeds. But do not expect to read about this in the mainstream press as it has received sporadic to non-existent coverage.
On May 23, a hearing took place before a three-judge panel of the United States Court of Appeals for the Fourth Circuit. This hearing was the next step in the lawsuit filed against the State Board of Elections in Virginia challenging the State’s open primary statute.
Readers of this column
(See "RINO
Hunting," May 23, 2005) may recall that in April 2005 a lawsuit was filed in Federal District Court seeking to redress Virginia’s practice of allowing every registered
voter to vote in a political party’s primary election or convention. This suit followed a little noticed movement that took place in the 2004 Republican Congressional District conventions, where candidates seeking election to the party’s State Central Committee were chosen.
Most of these candidates had committed to changing the party rule to require holding closed primary contests. Accordingly, in June 2004, the mostly conservative State Central Committee changed its party rule. The vote was overwhelming, with 70 of the members present voting in favor of the change and only four voting against it.
The change of the party rule set into motion a series of events. The first was that in August of 2004,
state Sen. Stephen Martin, R-Chesterfield, declared his candidacy for the 2007
state Senate elections. Declaring one’s candidacy three years before the election is rather unusual, but the extra time was needed to allow the legal challenge to work its way through the courts.
As the incumbent, Sen.
Martin got to choose the nominating process under Virginia’s State Code. He selected a primary election and advised the 11th State Senate District Committee of his decision. In January 2005, the 11th District Committee in turn voted to exclude voters from other parties from the 2007 primary as called for in recently changed party plan.
The same month, Larry Miller, the Chairman of the 11th District Committee wrote a letter to the State Board of Elections (“SBE”) informing them of the Committee’s decision to exclude previous Democrat Party primary voters from the upcoming primary.
The SBE replied that it would not, and could not under the Virginia State Code, restrict who could vote in the 2007 11th District Republican Primary. In response, State
Sen. Ken Cuccinelli, R-Centreville, an attorney who is representing Miller and the 11th District Committee, filed a civil lawsuit in federal court.
The right of free association is inherent in the First Amendment rights of speech, assembly, and petition.
Freedom of association is a constitutional right which is included in the bundle of First Amendment rights made applicable to states by the due process clause of Fourteenth Amendment.
Virginia’s current state code strikes at the very heart of associational rights by forcing Republicans to associate with Democrats in a Republican primary (and vice-versa). This lawsuit seeks to determine whether political parties in Virginia can expect to choose their candidates without interference from outsiders, who are not party members.
There are a number of RINO (Republican in Name Only) candidates, who continue to rely on the Democrat crossover vote to win re-election. This includes former members of the Democrat Party, who because of changing demographics, have switched parties—like the President Pro Tem of the State Senate, John Chichester,
R-Fredericksburg — however, they continue to have more in common with the Democrats’ tax-and-spend philosophy, than the Republican creed of limited government.
The lower court dismissed the case in October 2005. The decision was promptly appealed to the 4th Circuit. Whether the lower court judge based his ruling on the prevailing constitutional law or was influenced by the politics behind the case, will be debated for some time to come.
Observers who attended the May 23rd hearing, have unanimously reported that the Assistant Attorney General who represented the Commonwealth, did an extremely poor job and probably lost the case with his ineffective oral arguments. Some even went as far to predict that Sen. Cuccinelli would win the case
3 to 0. The judges appeared to indicate that the political parties suffer constitutional harm from the state’s open primary statute.
This is the second attempt to have the courts declare Virginia’s open primaries unconstitutional. In the mid-1990s a similar lawsuit was filed with the courts, which was eventually dismissed. However, in the intervening years some favorable decisions were reached by the courts, such a U.S. Supreme Court decision in a California case that speaks forcefully to a political party’s first amendment right of association.
But most importantly, this time around the architects behind this lawsuit have over the last two years
executed the series of steps required to build a solid legal case. What is indeed amazing, is the little attention this case is receiving—not only in the press, but more importantly by those RINOs who stand to lose the most in the event the courts order that parties are entitled to hold closed primaries.
If the Court of Appeals sides with Sen. Cuccinelli’s arguments and rules in favor of the plaintiffs, that does not necessarily mean that they would grant a summary judgment, as requested by the plaintiffs. For example, it could remand the case to the lower court for a decision on the merits of the case.
It is premature to declare that the plaintiffs will be successful in forcing a change in Virginia’s primary election law. However, based on the comments made by the judges at the oral hearing, it appears likely that they will rule in favor of the plaintiffs and in the process, set into motion the complete revamping of Virginia’s political landscape.
--
May 30, 2006
|
