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Half
of the American people have never read a
newspaper. Half never voted for President. One
hopes it is the same half. –Gore Vidal
Last
month, a complaint for declaratory relief was
filed in the U.S. District Court for the Eastern
District of Virginia. The plaintiffs are the 11th
Senatorial District Republican Committee and its
chairman, Larry Miller. The defendants are three
officials of the Virginia Board of elections.
This
lawsuit has not received much attention in the
mainstream press and there have only been a few
sporadic blog entries about this case. Clearly,
this is not an issue that invokes a lot of
passion.
Yet
the outcome of this lawsuit could have a
fundamental impact on Virginia politics for
generations to come. A decision favorable to the
plaintiffs could re-shape the composition of the
General Assembly. So how is it that
even political wonks are either unaware of the
case or are not interested in tracking its status?
Everyone who participates in local and state
politics and votes in primary elections should
take note.
Virginia
is one of 22 states that does not allow for
voter registration by party. Accordingly, primary
elections are open to all registered voters. This
means that Republicans can vote in Democrat
primaries and vice versa.
This
practice has been a bone of contention mostly for
conservative Republicans who believe that a number
of RINOs continue to get re-elected only because
they appeal to Democrat and Independent voters who
cross party lines and are responsible for quashing
any attempt to remove them from office.
One would think that Democrats would be just as
upset when Republicans choose to mingle in their
party’s process of selecting candidates. For
whatever reason—perhaps because Democratic
incumbents are rarely challenged-- they’re not.
Some
would say that the Democrats have greater party
discipline. Others would contend that the party
bosses twist arms and take care of any challengers
in smoke-filled backrooms (a good example of the
latter supposition was covered in “DINO
Sighting”).
As
far Republican challenges go, some would say that
the party lacks the leadership to avoid party
splits by keeping all elected officials marching
to the same tune. But there is little doubt that a
number of the current office holders were blue dog
Democrats who either switched parties or
campaigned as Republicans because they foresaw the
changing demographics.
This
is not mere supposition. When the Republicans last
controlled the governorship as well as both houses
in the General Assembly, there was absolutely no
movement to enact a bill that would require voter
registration by party.
Accordingly,
the conservative wing of the Republican Party is
hoping that the courts would render a favorable
decision mandating closed primary elections—a
victory they have been unable to accomplish
legislatively.
But
does this lawsuit stand a chance? And why is it
that it was recently filed, but deals with a State
Senate election that won’t take place until
2007?
To
put things in perspective one must look at a
little noticed movement that took place last year
in the 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 and require holding closed primary
contests.
A
few months later, the conservative State Central
Committee, changed the party rule. The vote was
overwhelming, with 70 of the members present
voting in favor of the change and only four voting
against it.
To
appease some of the party heavyweights, a
compromise was worked out ensuring that the change
would not become effective until the 2007 election
cycle. This action put the party rule
in direct conflict with state law that does not
allow for closed primary elections. So what were
the party functionaries hoping to accomplish?
You
see, the Supreme Court has already ruled on this
matter. It was the result of a lawsuit filed in
California by the political parties, which had
enjoyed closed party elections for years. At one
point, the state tried to open the elections and
the political parties cried foul.
After
the case worked its way through the court system,
the Supreme Court handed down a very-strongly
worded decision that speaks clearly to a political
party’s first amendment right of association.
Here’s what the Supremes had to say:
In
sum, Proposition 198 forces petitioners to
adulterate their candidate-selection process–the
“basic function of a political party,”
ibid.–by opening it up to persons wholly
unaffiliated with the party. Such forced
association has the likely outcome–indeed, in
this case the intended outcome–of changing the
parties’ message. We can think of no heavier
burden on a political party’s associational
freedom.
Proposition
198 is therefore unconstitutional unless it is
narrowly tailored to serve a compelling state
interest.
No
one can predict the outcome of a case under
litigation. However, this Supreme Court precedent
makes it likely that the state law calling for
open primary elections may be found
unconstitutional. And if the
plaintiffs prevail, the RINOs may become the next
political dinosaurs.
--
May 23, 2005
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