Do We Really Want the Courts Settling a Political Dispute?

(I am posting this on the behalf of Mark Rush, head of the department of politics at Washington & Lee University. — Jim Bacon)

Phillip Rodokanakis’s column, “Political Landscaping” (May 30, 2006), raises some important issues about the political parties’ rights of association. More important, it raises an esoteric issue: Who, exactly, is the Republican (or Democratic) Party—the voters, the elected officials or the party organization?

While the GOP has gone to court to challenge § 24.2-509 (which gives incumbents the right to choose their method of renomination) of the state code, I wonder whether we really want the courts to step in to this mess. Essentially, this is not a legal conflict. It is a family feud between the elected officials (who would be nuts to give up the right to choose their method of renomination) and the party officials (who are the principal victims of the code). By rights, the courts might just tell the political parties to get their houses in order.

Rodokanakis cites the U.S. Supreme Court decision (California Democratic Party v. Jones) as proof that the Supremes still support the associational rights of political parties. Problem is, the political parties went to court to prevent an initiative from compromising their associational rights. In Virginia, the law in question is part of the state code—put into effect by Democratic and Republican legislators.

I generally prefer the notion of strong party organizations. But, do we really want the courts to declare that elected legislators have no say in running the parties? Americans have never really promoted the notion of a strong party organization. Voters split tickets. They seldom become dues-paying, card-carrying, placard-waving party members. They like the idea of the primary election. I don’t see this lawsuit capturing the imagination of the public

Also, for what it’s worth, we can’t rely on the US Supreme Court for much in the way of support for the strong party notion. If we look at the court’s campaign finance decisions, we’ll see very little respect for the parties.

Does any one know the genesis of this part of the state law? When did incumbents gain the right to choose the manner of renomination? The law is clearly an attack on parties, party bosses, smoke-filled rooms, etc. But, it essentially turns candidates (and those seeking nominations) into independent contractors.

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15 responses to “Do We Really Want the Courts Settling a Political Dispute?”

  1. Jim Bacon Avatar
    Jim Bacon

    (I have posted this response from Philip Rodokanakis, with minor modifications, on his behalf. — Jim Bacon)

    Thank you for your feedback. Let me try to address the issues you raised.

    First, you’re right the GOP controls both Houses and herein lies the problem. The GOP is split; most of the Republicans in the Senate vote with the Democrats and rely on Democrat cross-over vote to get re-elected when challenged in Republican primaries. So passing legislation in the Senate mandating closed primaries will never happen.

    Then you have a Democrat governor who would not be likely to sign such a bill into law. When Jim Gilmore was Governor, there was some talk of passing such a bill, but that never happened.

    That’s the reason why out of pure frustration, the courts were seen as the only available option. As I mentioned in the column, this is the second attempt to seek redress through the courts. The first one was turned down, but now we have better case precedents to rely on and those behind this effort have taken two years to do their homework and line up all the prerequisite events in place.

    Second, state law gives incumbents the right to choose their nomination option. Some may argue that this law is unconstitutional as well. But this is seen as a secondary evil to the problem of open primaries. Actually, this was considered as a fall back position in case the courts turned down the challenge to the open primaries, that is, that the VA statute that gives incumbents the rights to select their nomination option, could be challenged next.

    Third, again, it’s rather doubtful that incumbents would willingly strike down a law that gives them a certain advantage in choosing their re-nomination method. So I doubt that such a change to the existing law could be pushed through the General Assembly. Nonetheless, the bigger issue is the open primary system. And hopefully, the courts will find that our rights under the first amendment are being violated.

  2. Lee Talley ( ) Avatar
    Lee Talley ( )

    I agree with Phillip. Changing these laws will give greater control to the party as to who will represent them at the polls. Open primarys are not a true representation of the will of the people but opportunites for both parties to play games in the others backyard.

  3. kingfish Avatar

    Well, well, look who’s relying on activist judges to make legislation now! Is there no limit to the hypocrisy and cynisism?

  4. Ray Hyde Avatar
    Ray Hyde

    Closed primaries are a terrible idea. It will lead to further ideological splits with no modifying checks to ameliorate the situation.

    If you get elected, you will be playing in everyone’s back yard. There is no reason you should be elected without some evidence you can play nicely.

    Clearly, the party is represented by the party machine, just as a corporation is represented by the BOD and CEO. The voters are the shareholders, and they should be allowed to trade their stock at will, primaries and all.

    It is the only leverage they have in a government that is largely unaccountable once the vote is held. If open primaries weaken control of the machine, then that is a good thing, just as outside directors on the board are a good thing. Otherwise the parties will go the way of Enron, led by political versions of Ken Lay.

  5. James Atticus Bowden Avatar
    James Atticus Bowden

    Call it hypocrisy. Call it what you will. But closing the legal process is about utility and timing.

    Let he who is without hypocrisy cast the first aspersion.

    The Conservative Republicans are not asking the black-robed priest-kings to make law, but to rule on settled law. Kinda like the settled ‘law’ on abortion.

    It is settled law that political parties can pick and choose their members and vote in ‘members only’ elections. The Virginia legislature would have to make a law saying different – and making a compelling case for the Commonwealth to not allow freedom of association.

    It would be a much purer – political – exercise to have a Republican legislature do the right thing. But, sadly, it will take the courts enforcing standing law and precedent to close the primaries so Conservatives can clean house of the RINOs who would not allow such legislation to pass.

    Ending the Catch-22 of the GA should clean up the law in accordance with the law, but the RINOs won’t allow it, so the RINOs need to be replaced by Party challenges, but RINOs stay in office with support outside the Party, because Primaries are open, so you can’t clean up the law.

    If you are unhappy with the far Right and the loony Left dominating the future political nominating process, then get off your dead butt and start your own Party. This is America. Think and live large.

  6. NoVA Scout Avatar
    NoVA Scout

    I’m somewhat ambivalent on this, but largely concur in Mr. Bacon’s observations. The legal arguments advanced about closing primaries are not without merit, but the politics are maddeningly tone-deaf. The last thing either major party in Virginia needs now is an even greater insularity in the choice of candidates. Were there an easy way for third parties to gain ballot access statewide, we could just say that if either party really, really wants to narrow its base, let it and pay the inevitable penalty in November. But Virginia law almost prohibits the emergence of third parties and places tremendous trust in the two major parties to develop candidates who can address the needs of the vast majority of Virginia’s citizens. With that responsibility and duopoly of political power comes some responsibility to make the nomination process as accessible as possible. The advocates of this position are, in effect, saying that in a time of immense political and governance challenges, we want to ensure that we are free (nay, even required) to put forward the most unelectable candidates we can find. Of course, this is in response to a problem that I doubt is statistically a real-world phenomenon (alleged cross-over saboteurs) and a frustration over popular Republicans who do very well at the ballot box in November, but whom other Republicans don’t much care for and wish to crow-bar out of the Party through the nominating process. Again, legalities aside, this is the path to continued separation of politics from governance.

  7. RedBull Avatar

    The pendulum swings both ways.

    Recent history clearly gives an advantage to the RINO’s in the Senate. However, things may not stay that way forever, so be careful what you wish for.

    If you had a conservative incumbent in office you would long for the days of being able to choose which type of primary to hold – assuming the law is changed.

    The draw back to the current system is the fact that there is usually only one primary race on the ballot. If there are two primary races, just like statewide races in 2005, this is a non-issue.

    What would be the ultimate goal of any new legislation? Are we simply trying to get people to register Republican, Democrat, or Independent? What do you do with Independents who want to vote in a primary? The reason primaries are held on the same day is to prevent Independents and crossover voters from voting in two elections.

    To simply have people register by party really doesn’t do any good because most folks would register Independent. independents would still vote in primaries, like it or not. Obviously, they couldn’t vote in two primaries but they can’t do that now if there are two races on the ballot.

    So, the solution is easy. Get more people from both parties to run in primaries.

  8. Ray Hyde Avatar
    Ray Hyde

    I think each of your comments make mny point. JAB and Redbull are advocating exorcising the RINOS and thus making the party more singular (not to say right or wrong).

    Nova Scout points out that my preferred solution is statistically unlikely. I happen to believe that my ability to vote against someone I can’t stand is at least as important as my ability to vote for someone I could care less about. Even if that situation is unlikely, it moderates the chance that some nut case will put Hitler or Mao on the ballot.

  9. Jim Bacon Avatar
    Jim Bacon

    NoVa Scout, You said, “Virginia law almost prohibits the emergence of third parties.” This is an area of which I am ignorant. How does Virginia law discourage third parties?

  10. NoVA Scout Avatar
    NoVA Scout

    Jim: It’s a question of ballot access and recognition. State law defines a political party as an organization of citizens that received at least 10% of the totoal vote cast for any statewide office in either of the preceding two general elections (or something close to that, I don’t have the exact language in front of me). Let’s assume a closed primary system in the 2 state-recognized parties with increasingly restrictive purity tests for members where a few thousand people select extreme candidates that have nothing to offer millions of Virginians. You and I, the voices of reason, want to offer ourselves on the altar of public service to save the day and form the non-ideological, good governance, sharp pencil Commonwealth Party to save the day after mass rallies of hundreds of thousands around the state demand it of us. We can’t be a recognized political party until we get 10% of the vote in a statewide election. Quaere: how the bloody hell do we do that?

    If politics were a marketpalce of ideas, there would be no barriers to entry. There are significant barriers to entry in Virginia and thus no real brake on either party, particularly in a closed primary environment, running into dark corridors to advance poor choices.

    Maybe someone better versed in this than I can allay my concerns, but it looks to me like our state government is extremely trusting that the two parties will be inclusive and open. Because unless this chicken/egg dilemma is resolved, they don’t really face any competitive threats.

    This is why this lawsuit (despite its delicious irony) is a very wrong-headed move quite apart from whether it is legally meritorious. It is an attempt to crank down the universe of choice-makers to a very small homogeneous crowd that could be severely out of touch with the citizens, but face not consequences for their isolation.

  11. NoVA Scout Avatar
    NoVA Scout

    PS; I have to acknowledge that this kind of dynamic can happen even under the present system because of extremely low turnout in even open primaries. But examples such as the rather undelectable Byrne/Bolling choice of last year show that the wings of each party have substantial impact even in an open primary world and suggest that such choices would be far less likely if there were always the possibility of competition from responsive third parties.

  12. RedBull Avatar

    I disagree about ballot access for third party candidates in Virginia.

    It’s EASY to get on the ballot as a third party candidate in Virginia compared to other states. Ask the Independence Party in NY state how hard it is up there to get on the ballot (they have elected judges by the way).

    If you are running for a statewide office in VA you only need to get 10,000 signatures – 1,000 from each congressional district. In comparison, Kinky Friedman in Texas had to get something like 45,000 in a 3-week period. Plus, Friedman can’t get signatures from registered R’s & D’s, they have to be from I’s or they are not valid.

    Also, in VA any registered voter can sign your petition and still vote in the primary election.

  13. Cory Chandler Avatar
    Cory Chandler

    I hope W&L’s head of the Politics Department pays better attention than that. Miller v. Brown doesn’t challenge Va. Code Ann. Sec. 24.2-509 at all. It challenges 24.2-530.

    I’ve deliberately avoided considering the question of whether Senator Cuccinelli tailored his suit to avoid the more constitutionally suspect 24.2-509 (the Incumbent Protection Act) because he will be an incumbent in 2007.

  14. James Atticus Bowden Avatar
    James Atticus Bowden

    Thanks, Redbull, for looking up the electoral code.

    Ross Perot got on the ballot didn’t he? That is a case of the nut case making the play for the moderate middle. Ironic, huh?

    Jaded JD, do you have a url to those sections of the Virginia Code – just to save time?

  15. Anonymous Avatar

    Re: the Jaded JD–sorry about the incorrect reference to the code. I only had the article to work from. If you (or anyone on the blog) could email me a copy of the briefs, I’d be much obliged.

    Also–the election system is stacked in favor of the 2 major parties. The best example of this came from the early 1990s when the GOP nearly lost its party status because of its low vote counts. To save Sen Warner from having to get petition signatures to get on the ballot, the Dems and Reps in the GA adjusted the ballot access law.

    There is lots on this. But, a good overview is available at


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