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What Is Right, Is Legal

By Greg L | 8 June 2012 | Virginia Politics | 18 Comments

The beginning of the next meeting of the Virginia Republican State Central Committee has been utterly set in stone.  There will be a motion.  Chairman Pat Mullins will make a ruling on that motion.  There will then be a motion to overrule the Chair.  From then on, what happens is anyone’s guess.

This minor drama about whether Republicans will nominate their statewide candidate for 2013 has so far been discussed entirely within the context of who will politically benefit.  Don’t be fooled by arguments about who can participate, whether conventions or primaries yield better candidates, or whether the issue has been previously been settled and shouldn’t be revisited.  It’s all smokescreen, and those arguments aren’t just meaningless, they’re almost universally fatuous.  Cuccinelli supporters want a convention because it’s cheaper, and will position Cucccinelli better to win in a general election.  Bolling supporters see this as their last slim hope of getting Bolling nominated and the only opportunity the political establishment might have to influence the outcome of these races.

I am one of the rare voices who cares nothing of these reasons, whether they’re honest arguments or the thin political cover for pushing a particular outcome they almost always are.  My only care in this debate is whether the method of nomination is constitutional.  Yeah, you read that right.  Constitutional.

A while back I was reading an old post penned by David Ray, who really is one of the absolute brightest minds in Virginia politics these days.  I’d been trying to figure out which method of nomination might be the right pick, and had been listening to arguments from both sides, trying to discover that one solid principle that should make a decision inevitable.  Within this article that principle popped right out and smacked me right in the face.

In sum, conventions, which are conducted completely by private entities to transact a private internal matter, are not on trial. Primaries are. Setting aside all the respective merits of the practical justifications for a primary, the question needs to be asked: what is the compelling state interest that justifies denying a political party its First Amendment free association right to control its own internal decision-making processes? The simple answer is, there is none. Primaries are a gross violation of a fundamental constitutional liberty – free association. Thus, primaries should be abolished.

I absolutely adore a simple, clear argument like this that compels a course of action based on principle alone, as well as the opportunity to drive that argument home against people trying to justify their political agenda with a bunch of weak arguments they actually don’t believe in very much.  If you stand for limited government and the Constitution, how can you morally justify an unlawful intrusion by government that violates the First Amendment of the Constitution simply because you think Bill Bolling and the Richmond political establishment might benefit from it?  It cannot be done, at least if anyone has the courage to try to argue that political parties don’t deserve their constitutionally-protected rights instead of droning on about other unconstitutional schemes such as state controlled voter registration by party.

If it is possible to dispense with all the tangential but ultimately meaningless prattle that has so far dominated the discussion, the real discussion should be about when it will be possible to revoke all the provisions in the Virginia Code that relate to primary elections, particularly the ridiculousness known as “The Incumbent Protection Act,” Virginia Code § 24.2-509 (B).  While we’re at it, all the state regulations on how many petition signatures are needed and from where they must be obtained in order to participate in a party nomination contest need to go as well.  We might have become addicted to primaries over the course of the last hundred years and crafted an appealing mythology to surround them with that makes everyone feel wonderfully democratic and all, but if that addiction is at the expense of our Constitutional liberties it’s time to go “cold turkey” right now.

Should we have a primary to select the Republican Party’s nominees for statewide office in 2013?  Absolutely not, unless the Constitution is nothing to us but a convenient political tool we use only when it serves our immediate political goals.  Anyone who demands an unlawful electoral system in order to win an election should be ashamed to claim they are Republicans.

I can’t wait to see how Pat Mullins rules on this inevitable motion.  Can you just imagine the Chairman of the Republican Party of Virginia trying to force a primary against the wishes of a majority of the State Central Committee so that the state can unconstitutionally insert itself into the private affairs of the private association he himself leads?  You’d really have to wonder whether he’s the head of the party, or an agent of the state if that happens.

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  1. pprados said on 8 Jun 2012 at 3:40 pm:
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    “the real discussion should be about when it will be possible to revoke all the provisions in the Virginia Code that relate to primary elections, particularly the ridiculousness known as “The Incumbent Protection Act,” Virginia Code § 24.2-509 (B).”

    For some of these provisions we merely need a Plaintiff with standing, a desire to see it through, and some funding.

  2. Greg L said on 8 Jun 2012 at 4:07 pm:
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    We “merely” need standing? Just how in today’s environment do we establish that? Do you have to be a candidate who was denied a convention? This is an incredibly difficult hurdle for a lawsuit. To me, repeal is a much more likely option if enough political pressure can be brought to bear.

  3. just a conservative girl said on 8 Jun 2012 at 6:20 pm:
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    I don’t see that at all. Primaries for a state race is a state issue not a federal one. How does having a primary limit free association?

  4. Greg L said on 8 Jun 2012 at 6:57 pm:
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    A good question, actually. I’d recommend to you the entirety of David Ray’s article, but in essence he forcefully argues that a political party is nothing more than a voluntary association of individuals who nominate candidates for office, not terribly unlike how organizations like the Sierra Club endorse candidates. For the state — at any level — to insert themselves into how a private entity endorses their candidates, much less sets up a regulatory process for how that is supposed to be done, is a violation of the First Amendment’s protection of the right of assembly and free association.

    Virginia law that says how nominees are selected is legally no different than the Commonwealth of Virginia determining the process by which a chapter of the Sierra Club picks who it says their membership should support in an election. First we have to ask whether the Constitution of Virginia provides any authority by which the Commonwealth is legally authorized to engage in this regulation, or set up schemes by which it might regulate how private associations may determine who they support for election. There is no such authority. Then we have to see if there is any state or federal proscription to the Commonwealth acting in this regard, and there is, namely the First Amendment to the United States Constitution (which applies the protections in the Bill of Rights to state actions under the Fourteenth Amendment).

    Seems pretty clear to me. For more explanation about this, I STRONGLY recommend David Ray’s wonderfully comprehensive article.

  5. Steve Albertson said on 8 Jun 2012 at 6:59 pm:
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    I don’t think there is anything per se illegal or unconstitutional about the party asking the state to provide the service of administering an election. We only undertake a primary after we have affirmatively chosen to do so…the law does not compel it, and instead defaults to the party to provide a choice via its own means. Although one could question the wisdom of the state providing this service for free, and our wisdom for choosing it, I don’t see it as the legal abomination you do. Let me know if I’m missing something.

    Personally, I think the fiscally prudent thing to do would be to have the parties pick up the tab for primaries instead of the taxpayers. We”d see then just how genuine support for primaries really is (i.e., we’d see it vanish in a heartbeat).

    I used to be a primary guy, thinking the conventional thought that having more people participate meant it was more democratic and more likely to give meaningful voice to the average Republican. That idealistic outlook was smashed by the last two selections of statewide primaries by the State Central Committee. It became clear that the choice of a primary was instead a weapon being wielded AGAINST the average Republican, limiting his choices to essentially whomever was deemed to be the candidate next in line for the nomination by the party elders (i.e., the guy with the already-established money and name ID). I happen to very much like the two gentlemen on whose behalf those selections were made, but resent that some thought it best to try to limit viable competition for my vote. That’s when I resolved to run for State Central and vote for conventions every chance I got.

    Wish us luck!


  6. Greg L said on 8 Jun 2012 at 7:23 pm:
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    The question remains as to whether the Commonwealth has the legal authority to establish a regulatory scheme that governs how a private association selects who it endorses in an election. I add my argument that under the First Amendment of the Constitution it does not. Since you’re an attorney and I’m not, I figure that line of reasoning would be even more persuasive to you than it is to me, and to me it is awfully persuasive to the point of being utterly compelling.

    No matter how well intentioned, any regulation that does violence to the Bill of Rights is a constitutional abomination and should be eliminated as soon as possible. If the Republican Party wants to stand for the principles it claims to adhere to in the RPV Creed there is no alternative but to forcefully push for the elimination of this regulatory scheme.

    “That the Federal Government must preserve individual liberty by observing Constitutional limitations…” — RPV Creed at http://www.rpv.org/node/269

  7. Steve Albertson said on 8 Jun 2012 at 7:36 pm:
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    My point is that by choosing a primary we voluntarily submit to those regulations, and cede some of our own ability to control the contours of the nomination (e.g., by letting outsiders cancel the some of the votes of those who are in concert with the Republican Creed). That may be unwise, but not unconstitutional.

    The “Incumbent Protection Act” allowing incumbents to choose a primary on their own is a whole other ball of wax, though.

  8. just a conservative girl said on 8 Jun 2012 at 7:37 pm:
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    Wouldn’t that only be true if the state was forcing a primary? Even with president, how the primaries are run for the DNC and RNC are different. Each national party sets up the rules. The federal government does not. The states then administer the elections with funding from the federal government.

    I like Cuccinelli. I really do. I don’t dislike Bolling, but I firmly believe that primaries makes it more about the voters. To me that is what is the most important factor in any election.

    I think it matters not if it is a primary or a convention, Bolling is going to have a hard time against Cucc. He is considered a rock star in conservative circles in many ways.

  9. NoVA Scout said on 9 Jun 2012 at 9:59 am:
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    This is the second time in just a week or two where a meaningful and largely intelligent discussion has broken out at this site. I can’t explain it except in ominous forebodings of the End Times, but I think, on balance, it is a good thing.

    I agree with much of what has been said above, even when conclusions diverge. Political parties are voluntary associations and should have the ability to choose their methods without much, or perhaps any, interference by the state. Where things begin to get murky, however, is that the parties, particularly in a state like Virginia, are so deeply in bed with government in terms of access to the ballot that it is difficult to reconcile state interests in a democratic, constitutionally compliant electoral process and party interests in internal unity and coherence. The Commonwealth uses its powers of the police to impose essentially a two-party monopoly on its residents. It is extraordinarily difficult for third (or whatever) parties to gain ballot access. If barriers to the ballot were minimal, RPV or the Dems could go off into the smallest rooms they could find and pick the looniest of candidates they want and their choices would fail when confronted by more rationally picked candidates from parties not so prone to circle in on themselves. But, whatever process either of the major parties utilizes to pick a candidate, the voters are stuck with the Dem or the R in November. Primaries, particularly open primaries, despite their expense and the generally abysmal turnout one gets, at least have the advantage of market-testing candidates for a general election run.

    Of course, the instinct toward drawing the circle as tightly as can be pulled off is significantly (not totally, but significantly) driven by the desire of a small number of people to control a big result. There are rational arguments for conventions, as there are for smoke-filled rooms (if the smokers are the right Hamiltonian mix of experience, leadership, civic dedication, education, and knowledge - a group that probably does not exist among people active in state politics these days). But keeping things narrow concentrates a lot of power in a relatively small circle, one that is not likely to be representative of the electorate at large.

    If we had a system with twenty parties (just to pick a number at random) the tendency would be, I think, for the parties to use the broadest possible means of selecting candidates and getting electoral input. Such a system would punish parties that habitually turned inward to find its nominees. But with a government-protected duopoly on the ballot, there is little incentive for either of the favoured parties to look for quality candidates with broad appeal to all residents. They can just pick the guy who tickles their narrow fancies most shamelessly and have some faith that he has at least a 50-50 chance of making a race of it because the likely opponent hasn’t been subjected to any meaningfully superior selection process.

  10. Alton Foley said on 9 Jun 2012 at 10:12 am:
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    Your arguments are very compelling Greg. I love me a good ol fashion convention. But, and to me it’s pretty big but, active duty military are barred from participating. They can vote in a primary, even absentee from a foreign land.

    I’ve heard a “solution” offered that would allow “absentee” votes from military personnel, but I don’t know if that’s legal. If it is, how do they participate if the voting goes more than one round?

  11. Greg L said on 9 Jun 2012 at 10:22 am:
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    The party should be able to establish its own rules for a convention in any way that suits the party. If it wants to include absentee ballots from military personnel, there SHOULD be nothing to stop that from happening. Whether federal law or DoD policy allows them to submit those ballots is outside the control of the party, and if I understand correctly the bar to military personnel is “participating” which would suggest completing an absentee ballot would also not be allowed. Technically, they can’t even “participate” in a firehouse primary or “caucus” if the rule is strictly construed.

    Being one of those guys who have worn a uniform, I understand the argument. Military personnel voluntarily relinquish a number of constitutional rights in order to serve, however, and participation in partisan political activities is one of them. The party can’t “fix” that. Establishing an unconstitutional regime to try to do so kind of damages the very constitution they swear to uphold, and even if it provides some benefit to them I can’t see how many of them could throw away their oath if they realized what was happening.

  12. James Young said on 9 Jun 2012 at 3:08 pm:
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    Having this debate divorced from the passions of the moment is certainly appropriate, though difficult. And I say that as a supporter of Bolling — mainly because he’s no less Conservative than Ken Cuccinelli, and has earned his shot — but as one who generally supports conventions as our nominating process (at least, until the General Assembly enacts party registration).

    The problem here is, as I have said elsewhere, reliance interests: the decision was made, albeit ridiculously early, but it was made. Candidates and the public/party faithful have and are entitled to rely upon that decision.

    The immediate problem is that, short of an amendment to the Party Plan, one State Central Committee (SCC) cannot obligate another. And in the interim, we have had elections for most of the members of the SCC. The reason we have this problem is because we have a new SCC, and one apparently less inclined to vote for conventions (a happenstance of which I approve, obviously).

    I don’t know if it’s a “compromise” — and I’m not sure compromise is called for — but my preferred outcome is to reaffirm the prior decision based upon those reliance interests, and to propose an amendment to the Party Plan which would bar such decisions so far in advance, and certainly, barring them when there will be intervening elections for SCC and District Chairmen.

    I doubt it will happen, but that it what I would like to see happen.

  13. Brian Schoeneman said on 9 Jun 2012 at 7:59 pm:
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    I hadn’t seen this post when I wrote mine, but I think it’s interesting that we both picked the same comments from David Ray’s convention manifesto to discuss.

    I think David is flat wrong. Because the two party system has been grafted into the Virginia Code and the structure of American politics, it’s impossible to say that the state has no rational basis for interfering in the internal processes of organizations who sole basis for existing is to promote the election of candidates for office.

    Take a look at Roberts v. United States Jaycees, 468 U.S. 609 (1984). Here’s a case where the Supreme Court held that the anti-discrimination law Minnesota passed was a sufficiently significant government interest to trump the Jaycees’ first amendment right to free association. Here you had two separate constitutional principles at odds - 14th amendment equal protection jurisprudence vs. 1st amendment free association jurisprudence. In this case, the Court found that the state could regulate the internal procedures of a private organization, barring them from discriminating on the basis of gender.

    This was a completely private organization. And it’s bylaws were overturned by a court. If a court could do it for an organization like the Jaycees, one that has little - if any - direct impact on our government and how it’s structured, why are political parties somehow different?

    If the Republican party tried to purposefully exclude women, blacks, folks over 40, or other protected classes, courts would rightfully decide that their free association rights were trumped by more important state interests.

    The same goes for primaries. I don’t see how anyone can argue that providing for a fair, transparent and governmentally regulated process for selecting nominees is somehow not in the public interest. As much as people want to claim otherwise, political parties are not truly private organizations. They are regulated differently, they are treated differently for tax purposes, they are engaged in activity that is inherently in the public interest - choosing nominees for elected office that all voters will choose from in a general election. It’s a big deal, because rarely does anyone without the backing of a major party ever get elected.

    David’s argument is simply wrong. The “compelling state interest that justifies denying a political party its First Amendment free association right to control its own internal decision-making processes” is simple: ensuring the integrity of elections, providing equal protection to the rights of candidates and providing a fair, transparent and accountable process that results in an accurate reflection of the will of the electorate.

    We regulate the internal decision making processes of a variety of organizations, from corporations to non-profits, to political parties, labor unions and the like. To argue that political parties should somehow be exempt to rational regulation is simply untenable.

  14. The Real Disgusted said on 10 Jun 2012 at 4:59 pm:
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    Are you people SERIOUS???? It is already JUNE 10TH!!! It is practically the middle of June and you all are arguing about whether a convention or primary is better blah blah blah. Meanwhile, over on the other side of the aisle, Mr. Kaine and his cohorts are holding fundraisers and making bank. You guys haven’t even settled on a candidate. PICK SOMEONE AND MOVE OUT!!! Time is wasting!!!! Is it about getting a Republican in Webb’s seat, or is it more about “my kind of people” running the Party?

    By the way, how’s that Romney tastin’ about now?

  15. Brian Schoeneman said on 10 Jun 2012 at 8:10 pm:
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    This is a debate for 2013, not this year.

    And considering Romney’s running nearly even with Obama, and ahead in battleground states like Florida, it’s tasting pretty damn good right now.

  16. David C.F. Ray said on 10 Jun 2012 at 9:08 pm:
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    I have no doubt you can cite far more judicial precedents upholding the state regulation of political parties than I’ve ever heard of.

    However, citing assorted Supreme Court decisions doesn’t make my argument wrong — the U.S. Supreme Court was wrong in Griswold v. Connecticut, wrong in Roe v. Wade, wrong in Roberts v. United States Jaycees, wrong in Planned Parenthood of Southeastern Pennsylvania v. Casey, wrong in Arver v. United States, wrong in Lawrence v. Texas, wrong in part (and correct in part) in Buckley v. Valeo, etc., etc. — it just makes the Court occasionally wrong.

    The reality is that the ONLY state interest is in ensuring that GENERAL elections are conducted, as you cite, “ensuring the integrity of elections, providing equal protection to the rights of candidates and providing a fair, transparent and accountable process that results in an accurate reflection of the will of the electorate.” Such interests DO NOT attach to political parties. Political parties do NOT nominate candidates to be reflections of the will of the electorate — they nominate candidates to be reflections of the will of party MEMBERS. And just as the Jaycees or the AFL-CIO keep track of their own members and restrict internal elections thereto, political parties should be the arbiters of their OWN membership and restrict selecting their officers AND their nominees to their OWN MEMBERS — and NO STATE GOVERNMENT can EVER legitimately step in to tell a political party who can and cannot qualify for party membership. I say this as a practicing Roman Catholic — a minority in American politics that historically was frozen out of access to political participation in many quarters for decades. The conflict between 1st Amendment free association and 14th Amendment equal protection is a fantasy — there IS no equal protection right to belong to ANY private entity. The courts disagree — the courts are wrong.

    To PROVE this point, how does ANY state in the Union ensure this standard when the Green Party picks its nominees? DOES any state in the Union apply these same standards to the Green Party? Is the Green Party not a political party in the United States? What about military personnel who are excluded from participating in choosing Green Party nominees? Does the fact that the Green Party almost never wins anything mean the state interest in regulating it doesn’t exist? See how silly this is?

    The reality is that the effective 2-party monopoly in American politics has exerted its influence, via its state agents (elected officials who only incidentally happen to belong to the 2 major parties) to create artificial barriers to entry in law for non-major parties and their candidates. All of these are designed to send the public a powerful message that the 2 main parties really are the only ones the public should generally consider for public office and thus perpetuate the Democrat-Republican monopoly.

    And the courts are generally terrified of issuing rulings that would upend decades of public policy practice. I would be very doubtful we could win a 5-vote majority on the U.S. Supreme Court that my point is correct — but that doesn’t make me wrong — it just means the Justices are afraid of truly free elections where the 2 major political parties are not granted special treatment over other organizations or individuals.

    The answer, of course, is for the courts to recognize that political parties are INDEED 100% private organizations with NO entitlement to automatic ballot access. The courts SHOULD find that creating all sorts of artificial barriers to ballot access (requirements that a party must have received an arbitrary minimum percentage in a previous statewide election in order to qualify for ballot access in a future year is a fairly common standard) is a far greater violation of equal protection than denying a non-party-member voter some imaginary “right” to participate in the private internal affairs of a private organization of which that voter is NOT a member. And every state should correspondingly allow ANY candidate seeking to serve who meets the minimum eligibility requirements for the office (age, citizenship, residency, non-felon status) to appear on the general election ballot, and conduct runoffs between the top 2 finishers (when no one receives a majority), as was done for OVER 30 YEARS in Louisiana and worked out JUST FINE.

    In fact, Brian, the system I advocate already exists (minus the runoff provision) right here in Virginia — it’s called School Board elections. School Board elections in Arlington, Fairfax, Loudoun, and Prince William Counties are VERY partisan — but the state doesn’t inject itself into how/when/if parties endorse candidates. Virginia allows all qualified School Board candidates to file, and it allows all political parties to endorse at will, or not, as they choose. So before someone pipes in that what I advocate can’t/won’t work, or won’t work in Virginia, it already DOES.

  17. Anonymous said on 11 Jun 2012 at 6:07 am:
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    David Ray’s last comment recognizes that there is a trade-off between relaxing the monopoly status that the Commonwealth has awarded the two major parties and his principle of non-interference with internal party affairs. I think he gets the balance just about right. If ballot access were liberalized substantially, there would be far less justification for state interference. If some party wants to choose its candidates by consulting tarot cards, so be it. It will probably pay a price at the polls. That the RPV frequently would have done better by drawing lots from a pool of registered voters is its problem, not the state’s. However, I suspect we are a very long way from the state butting out of this. The only way I could see it happening would be if both major parties pushed hard and in unison for their special status to be eliminated.

  18. David C.F. Ray said on 12 Jun 2012 at 3:10 am:
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    Or for the U.S. Supreme Court to find the entire nomination regulatory scheme such a blatant and wanton violation of 1st Amendment free association rights as to be constitutionally untenable. THAT would eliminate the need for either political party to push for anything at all.

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