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Convention or Primary, A Legal Primer

By Greg L | 10 June 2012 | RPV, Virginia Politics | 25 Comments

A few blogs this week, including this one, have been engaging in a pretty in-depth discussion about the issue about whether Republican statewide candidates in 2013 should be nominated by convention or primary.  Although this kind of party mechanics minutae might seem pretty irrelevant to the concerns of many voters, there is a decent possibility that the outcome of this discussion could radically alter elections in Virginia and across the country.  If you want to understand why we may be on the cusp of some pretty significant changes that would dramatically affect how you vote, and what those changes might be, it would be a good idea to keep an eye on this.

The question at hand isn’t so much about whether one method of nomination is superior to the other, but about what methods of nomination are actually constitutional.  Just think for a moment how much would change if primary elections, such as the one happening on Tuesday, were declared an unconstitutional intrusion by the state on the rights of free association of a political party.  Money would be less important for securing the nomination of a political party.  The party would be able to control who participates to a much larger degree.  Activists — people who actually make an effort to show up for political things — would have a much greater influence than they do now.  A number of laws that favor the interests of incumbents would be swept away.  It would change things a lot.

This quickly and unavoidably becomes a discussion about the law and legal philosophy, and for that reason much of the electorate will rapidly tune out.  It shouldn’t.  The law isn’t the exclusive preserve of legislators, attorneys and judges, it belongs to the people.  Laws that affect you should seize at least some of your attention, much more than the latest circus of criminal law that is performed by the mainstream media every time a celebrity gets caught doing something stupid.  Criminal law shouldn’t hardly ever impact a law-abiding citizen, but civil law, especially civil law that concerns what rights and liberties you are free to exercise frequently will.  You elect the people that decide what those laws are, which means if you are to be responsible about such decisions, you need to have some understanding of civil and constitutional law.

Republican State Central Committee member David Ray and I have argued in general terms that the state does not have the legal authority to dictate to a political party how it chooses nominees, nor does a political party have the right to request that the state expend taxpayer resources in operating a system that nominates.  Brian Schoneman, a rather bright young Virginia attorney who recently passed his bar exam while simultaneously running for the House of Delegates, argues that the legal basis for this belief hinges on a case of “judicial activism” and that political parties are a unique case where the state has a compelling interest to enact regulations in order to protect the electoral process under Washington State Grange v. Washington State Republican Party.  Now we have an opportunity to argue specific points of law and precedent in the hopes that not only will the electorate understand the issue, but that a potential litigant is primed with some logical ammunition that could be useful.

First, let’s look at what a political party is.  It is a voluntary association of individuals that joins together in order to promote a particular political philosophy, and endorses and supports candidates for office that promote that philosophy.  A political party is not an official arm of government, nor is it established by any federal or state level statute.  About the only official status as an entity that exists for political parties is their treatment as tax-exempt entities under the Internal Revenue Service Code, which is hardly a unique situation for an association of individuals, there being thousands upon thousands of tax-exempt and otherwise tax-advantaged entities in the United States.

A voluntary association of individuals has certain constitutionally-protected rights for the organization as a whole as well as as a collection of the individuals who are members.  The Supreme Court case that affirmed that such a right exists is NAACP v. Alabama, which ruled that the NAACP could not be compelled to divulge to the State of Alabama their membership list, which in the 1950’s would have undoubtedly lead to reprisals against the membership of what was at the time a very controversial organization which Alabama was busily trying to regulate out of existence.

“We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.”

Schoneman argues that this decision is a case of “judicial activism,” one where the court invented a federally protected right where one did not previously exist, but somewhat incongruously says that the case was correctly decided.  I assume here that Schoneman believes that while the court was correct in stopping Alabama’s outrageous attempt to punish anyone connected with the NAACP for their support of the organization, that the court didn’t adequately explain why a right of private association exists and what the limits to that right might be.  It’s really not hard to figure out why they did.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The text of this amendment “Congress shall make no law…abridging the freedom of speech” prohibits Congress from abridging freedom of speech not of individuals, but universally.  It would be quite a logical stretch to argue that such a right might exist individually only to evaporate if two or more people decide to exercise it in concert. The plain language of the amendment doesn’t say this, and as far as I can determine no court precedent has ever said so.  In fact, the recent decision in Citizens United v. FCC (588 US 50 (2010)) held that collections of individuals organized as corporations (a specific form of the free association of individuals) possess political free speech rights, so insofar as this might somehow be a case of “judicial activism,” a right to free speech by collections of individuals has been consistently upheld on multiple occasions since 1958 without successful challenge.

The remainder of Schoneman’s legal arguments hold that political parties are a special case and that the state has a compelling interest in regulating their activity.  Although Schoneman doesn’t go into any detail here beyond citing one case that doesn’t seem to talk much about the subject at hand, there is some judicial precedent to support this contention.  Hampered by my lack of a law degree or access to the legal research systems that attorneys tend to have access to, I haven’t been able to find a court case that specifically addressed this, but I have found the matter discussed in several cases.

Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates. (Storer v. Brown, 415 U.S. 724 (1974))

Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. We have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U. S. 724, 730 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends. Nevertheless, the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. (Anderson v. Celebreeze, 460 U.S. 780 (1983))

So much for this non-attorney substantiating the legal arguments of an attorney who for some reason felt the rest of us weren’t interested in specifics, or incapable of understanding them.  Suffice it to say that there’s plenty of language in Supreme Court opinions about the interest of the state in how political parties participate in elections.

Each of these cases, however, only argues about the constitutionality of specific regulatory burdens on political parties in how they conduct primary elections.  Often, one or both parties to the cases have had an interest in maintaining some regulations over how a a political party operates and weren’t at all interested in the overall question about whether regulations are constitutional or not.  Thus no one has bothered to argue that regulations themselves are an unconstitutional infringement on free association rights, and since a court can only decide on the arguments presented to it, the issue has never actually been addressed.  We’ve been busy arguing regulatory specifics without ever considering the question of whether regulations in general are infringements on constitutionally protected rights.

This becomes a particularly ripe question in the wake of Citizens United v. FCC. In it the court said

“…because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled.”

To the extent that political parties are fundamentally different than any other kind of association, their expression of political speech through endorsing candidates for election is the reason always cited.  In Citizens the court establishes that “strict scrutiny” applies to any regulatory scheme that restricts political free speech, establishing the highest standard possible for the government to meet in order to justify infringements.  Can the government argue that ballot requirements that restrict who can run for the endorsement of a political party (for example) meet this “strict scrutiny” standard?  I believe that’s doubtful.

In order to do so the state must convince a court it has a compelling state interest in enforcing the regulations, that the regulation is narrowly tailored, and that the regulation is the least restrictive means of achieving the desired outcome.  In Virginia, those regulations even include restrictions on what method a political party may use to nominate a certain candidates for office (VA Code § 24.2-509) in a manner which protects incumbent officeholders.  Certainly no life, liberty or property interests are at stake here.

Another opportunity for litigation is under the Section 1 of the Fourteenth Amendment, in regards to equal protection of the laws.  If the state does not regulate how labor unions, for example, decide which candidates to endorse in an election, why does it regulate how political parties endorse candidates for election?

Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

A political party is a “legal person” since it can be named as a defendant in a suit and act as a plaintiff, making it eligible to equal treatment alongside other similar organizations, subject to some exceptions.  Clearly the law can’t discriminate between political parties, providing an advantage or imposing a detriment on one that doesn’t apply to all of them.  What a court hasn’t been asked to do so far is determine whether free associations of individuals such as labor unions, environmental organizations and political parties should be subject to different rules regarding how they endorse candidates, or whether the same rules should be applied to all.  Other than money and power, there really isn’t any fundamental difference between them in this specific regard.  They all recommend candidates to their membership and expend resources helping them get elected.  How they do so should be up to them, as it is with unions, environmental organizations, and should be with political parties.

What we haven’t discussed so far is whether it is right for the state to expend taxpayer resources on behalf of a political party in order to help them select which candidate for office they endorse.  Article IV Section 16 of the Constitution of Virginia proscribes appropriations by the General Assembly to charitable non-state entities, although the tax-exempt status of political parties doesn’t actually qualify them as “charitable.” While it may not be unlawful under the Constitution of Virginia for the Commonwealth to finance and operate a nomination process for a political party, it certainly is providing preferential treatment to political parties it doesn’t afford to other associations that have to choose which candidates they endorse.  If it is legally defensible somehow for the state to finance the internal endorsement process for the Democratic Party of Virginia, why does it not provide that kind of assistance to the SEIU or the NRA?

We haven’t had a case like this argued before because no one (as far as I can tell) has raised an objection to the overall idea of states regulating how political parties choose their endorsed candidates.  What legal precedent there is exists as little more than general discussion surrounding the elements of specific regulatory schemes lacking any kind of support from precedent or common law.  Precedent absolutely does exist establishing some pretty substantial rights for voluntary associations of individuals organized to promote political activity, and an opportunity to bolster that with arguments relating to at the very least the First and Fourteenth Amendments makes it seem that if a lawsuit against the Commonwealth was filed challenging all regulatory burdens generally on political parties, other than non-discrimination protections, it could well prevail, and I believe it should.

Given all this, what members of the Republican State Central Committee would ever want to have a primary chosen as the means of selecting any nominee in any election, and why?

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  1. David C.F. Ray said on 10 Jun 2012 at 10:14 pm:
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    Wow! That’s all I can say — WOW!

    You tackled the legal and constitutional issues in ways I admit I had never yet thought of myself.

    We may have disagreed over Steve Chapman vs. Jackson Miller, but I will always appreciate your firepower in this discussion.

    I have no doubt many pro-primary adherents will tune out the free association/free speech points here, probably because they are SO emotionally invested in the false notion that the general public should pick all major party nominees (again, they don’t seem to spend much energy demanding that the Green Party, the Libertarian Party, the Socialist Party, the Constitution Party, etc. hold publicly funded, state-run and state regulated primaries) that anything that demonstrates just how constitutionally illegitimate that notion is is filtered out.

    However, here’s hoping more thoughtful folks who had never really pondered this issue AT LEAST give it some real thought and consideration. I believe you have composed a posting that just may cause more of that thoughtfulness to occur.

    See you on Friday!

  2. Austin said on 11 Jun 2012 at 7:41 am:
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    I don’t always agree with you and I don’t agree with some of which you wrote here, but I am very impressed with your reasoning and reseach. This may be the best piece I have ever seen you write. I always listen to other opinions and yours is well researched and thought out. Very good work! Would have made a great magazine article.

  3. Jack Slimp said on 11 Jun 2012 at 10:53 am:
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    Veddy interesting.

    So, in summary, the argument is:
    1. the state does not have the legal authority to dictate to a political party how it chooses nominees, and
    2. a state does not have constitutional authority to expend taxpayer resources for operating a system that nominates candidates for a political party;ergo, a political party does not have the right to request that the state spend taxpayer resources in operating a primary.

    A thought provoking treatise, Greg.

  4. Brian Schoeneman said on 11 Jun 2012 at 2:10 pm:
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    Greg, you are continuing to mischaracterize my use of the phrase “judicial activism” in regards to NAACP vs. Alabama. I have tried to explain this to you, but you’re still missing my point. I wasn’t making a legal point. I was pointing out irony.

    According to those on the far right, any situation where the Supreme Court interprets the constitution and discovers rights in it that aren’t in the plain language of the document is called “judicial activism.” In Roe v. Wade, for instance, the Supreme Court found a right to privacy that is nowhere outlined in the document. Many of the far right decry this case, rightfully so, for being a case of judicial activism. Had the justices just read the Constitution, they reason, there’s no “right to privacy mentioned,” thus it doesn’t exist. That makes it a judicial construct, where the justices created a right out of thin air and justified it through logical leaps from the text of the fourth, fifth and other amendments. What Harlan did in creating the right to free association in NAACP v. Alabama is arguably the exact same thing - he created a new freedom, “the freedom to associate” out of logical inferences of the freedoms of speech, assembly and petition. Nowhere does the text say “freedom of association.”

    So the folks who claim Roe v. Wade was judicial activism - like David Ray - are claiming that freedom of association is valid, despite that the two are cut from the same logical and judicially developed cloth. It’s ironic, that’s all.

    NAACP was rightly decided, Roe was wrongly decided. And I hate the term judicial activism, because it’s completely inaccurate and misleading. You’ll have to forgive me for being snarky, but I find David Ray’s argument to be logically inconsistent, given what I know of his other views on other issues. He’s not backing Bob Marshall because he thinks the Constitution has a right to privacy.

    As for my legal arguments, I wasn’t really trying to make a legal argument. I was making a larger argument about this whole debate and the logical contortions that the convention side has to make to make their case compared with their ideologically based stances on other issues.

    The state does have a compelling interest in regulating political parties, in so far as those political parties participate in the time, place and manner of elections to federal and state office. Article I Section 4 grants Congress the right to regulate the time, place and manner of elections for federal office. State law provides the same for state offices. That’s the only hook they need - if political parties are part of the process for choosing elected officials, regulating political parties who gather to determine who will be the nominee and represent them on the ballot in November is part of that time, place and manner.

    The fact that no one has bothered to argue that the regulations are unconstitutional doesn’t mean that’s a good argument no one has explored. It means it’s not a good argument and no court needs to waste time arguing that primaries are somehow unconstitutional. Article I Section 4 is clear in that regard. The idea that Congress can’t regulate primaries or conventions when those primaries and conventions are a fundamental part of our overall electoral process - for good or bad - is just ridiculous. There’s nothing unconstitutional about primaries. Where there have been issues of constitutionality with primaries, it’s been about the manner in which they’re held, not whether they can be held at all.

    Thanks for finding a few cases to back up what I said. If you want to pay me, I’d be happy to write a more detailed brief outlining my point of view. But since this is blogging and not a law review article, you’ll forgive me if I don’t spend as much time on it as I have on stuff like that.

  5. Greg L said on 11 Jun 2012 at 2:55 pm:
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    Brian, I really felt I went out of my way to try to treat your statements on this with respect, even to the point of trying to support your arguments for you. I think you deserve that if for no other reason that you’re trying to engage in this discussion, one I think is very beneficial to the public. If you actually don’t think NAACP v. Alabama is “judicial activism,” for the sake of providing a better quality discussion I wish you’d stop trying to say that it is.

    Back to the point here, we’re narrowing this down to whether the powers in Article 1 Section 4 applies to primaries. You contend that primary elections are federal elections, and I and some others argue it is merely the selection by a private entity of which candidates they endorse for a general election, even though the machinery of state has been brought in to conduct it on numerous occasions . That is a great question for the courts to decide. If these are “federal elections” (or even state elections) then federal regulations governing them and taxpayer funds being used to conduct them is quite obviously constitutional and correct. If these are not, then the regulations and any state involvement in the candidate selection process by political parties should fall.

    If we dispense with all the tangential issues that have been introduced into the discussion and continue to zero in to the legal issues here, this might end up being one of the most fruitful online discussions about politics ever to occur on the internet. I hope you’ll continue to be a part of that.

  6. David C.F. Ray said on 11 Jun 2012 at 4:06 pm:
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    Again, you correctly cite the part of the Constitution on which primary advocates would have to rely in order to constitutionalize primaries. However, as Greg indicates, your premise is false, so the conclusion is, too.

    Nominations are NOT a legal “part of the process for choosing elected officials,” as far as Article I, Section 4 is concerned — the drafers did not envision political parties. The “Time, Manner, and Place” Clause only applies to GENERAL elections. If they WERE part of that process from a CONSTITUTIONAL or LEGAL standpoint, then the biennial NRA, AFL-CIO, and NARAL endorsements would be JUST as subject to state regulation. The NRA and the Republican Party are merely 2 social entities with respective agendas. The fact that the GOP has a more comprehensive agenda than the NRA is irrelevant and correspondingly an insufficient justification for regulatory state action.

    Nominations are indeed helpful to the voters, and they certainly are aimed at advancing the cause(s) of a political party, but they are INCIDENTAL to the public’s choices, not constitutionally or legally material to those choices, since voters can and DO use ANY criteria that suits them in making their choices.

    Yes, I know Wyoming and Hawaii have state laws mandating the appointment of U.S. Senators (to fill mid-term vacancies) who are of the same political party as the vacating Senator — an abomination if ever there was one — but that doesn’t alter my point — it just demonstrates all the more just how FAR our system has devolved from what our Constitution actually provides. I MAY concede the constitutionality of the Wyoming/Hawaii statutes — I’m mostly disinclined to do so, but they just MIGHT pass constitutional muster, since the 17th Amendment DOES give state legislatures some significant latitude to authorize Governors to make appointments — but the idea that the law treats political parties any differently from any OTHER group seeking to influence the outcome of elections is a GLARING violation of equal protection — for all the OTHER groups — and that’s not to mention the equal protection being denied INDEPENDENT candidates. As Greg and I have both introduced into this discussion, this has been such a vast arrangement of laws and judicial precedent over well over a century, all designed to perpetuate the political advantages held by the 2 major parties, that it has become nearly impossible to undo it. But that reduces the entire argument to one of “might makes right.”

    As Greg posited in an earlier initial posting on this topic, just THINK of the massive change our political system would undergo if primaries were abolished by judicial fiat overnight.

    I, for one, would welcome such a development — it would be both good for our politics and good for the nation — and the CORRECT application of the 1st and 14 Amendments — btw, even IF Article 1, Section 4 implicitly (it doesn’t) gave Congress the power to regulate time, manner, and place of primary elections (something that didn’t even EXIST in the 18th Century), such authority would’ve been repealed by adoption of the 1st Amendment and its free speech, free assembly and free association (which is ESSENTIAL to the existence of free speech and free assembly — in other words, free speech and free assembly CANNOT be deemed to exist WITHOUT free association) provisions.

    The real problem here is that virtually no federal judge would have the courage to abolish primaries, and I imagine, on a GOOD day, we could only get 4 current U.S. Supreme Court Justices to do so — MAYBE.

    But that doesn’t make me wrong.

    And since you and I AGREE that NAACP vs. Alabama was correctly decided, I see no need to argue over a matter of our AGREEMENT.

    P.S. — Roe v. Wade is wrong for 2 reasons — its reliance on the indeed faulty “right to privacy” handed down in Griswold AND its blatant ignoring of the text of the 14 Amendment which states “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Therefore, no state may allow abortion since that would be denying a PERSON (not just citizens or BORN people) life without due process of law.

    I’m not an original intentist, Brian — I’m a plain meaningist.

  7. Brian Schoeneman said on 11 Jun 2012 at 9:46 pm:
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    If you’re a plain meaningist (or what we usually refer to as a textualist), then your argument over what the founders intended when they drafted Article I Section 4 is moot - the letter of the law is extremely broad. “Time, place and manner” encompasses the entire process, from start to finish, of how a private citizen is elected to public office. If political parties are a part of that process, they are thus within Congress’ power to regulate.

    Virginia, as a sovereign with plenary authority, has the ability to regulate state elections as it sees fit. The Virginia Constitution explicitly allows primaries, referring to them as primaries twice, in both Article II Section 3 and Article II Section 4.

    Article II Section 4 is an explicit grant of authority to the General Assembly: “The General Assembly shall provide for the nomination of candidates, shall regulate the time, place, manner, conduct, and administration of primary, general, and special elections, and shall have power to make any other law regulating elections not inconsistent with this Constitution.”

    The only check on this authority is the First Amendment, as incorporated on the states by the Fourteenth Amendment.

    Before we get there, let me dispense with the NRA, AFL-CIO argument. Those organizations aren’t directly responsible for any part of the time, place or manner of an election. An endorsement does not put anyone on the ballot. Influencing a voters decision through issue advocacy or endorsements is not the same kind of electoral activity as placing a name onto a ballot. A political party exists for the sole purpose of electing candidates to public office - all of the various activities that go into that, like creating platforms, policy-making, fundraising, and the like, are all borne of that singular purpose. And because of that focus, they are given different treatment from issue advocacy groups, political action committees and the like. They are also given greater authority - such as the ability to determine how names are placed on a ballot with the party label on them. They are not the functional equivalent of the NRA or another issue advocacy group. At one time they may have been, but that era ended a long, long time ago.

    But even if they were, Congress has clear power to set guidelines and regulate how elections take place, and that’s why you have the FEC regulating campaign finance laws, and why those laws are enforceable in the first place. The courts have always striven to maintain a balance between the First Amendment rights of parties and organizations with the need for states to regulate elections and ensure they are fair and lawful. Cases like Buckley v. Valeo and Citizens United turn on those questions and no court, at least not in the last century, has ever held that Congress had not authority to regulate election activity. The question has always turned on where that authority ends and First Amendment protections begin. Congress tells the NRA it can’t give money directly to candidates. Congress tells the NRA that it has to register it’s political action committee and report who it takes donations from and who it gives money to. None of that is unconstitutional - it has been found consistent with Congressional grants of authority and has been upheld in multiple cases.

    Much of your reasoning turns on the idea that a political party is a private organization and thus should be immune from governmental interference. Leaving aside the obvious - all private organizations are bound by the law and are constructs of that law - political parties are more than just private organizations because of the roles they have been given in our electoral process. You can argue as much as you want against this, but the fact remains that this is true. As a result, because of the powers the political parties have been granted, they have, in effect, given government the authority to regulate their internal processes.

    Nominations are not incidental to the electoral process. Today, they are part of the vetting scheme that the law requires of candidates in order to qualify them to appear on a ballot. While you don’t need to appear on a ballot to be elected to office, with a few notable exceptions, it has been the primary way candidates have gotten elected since we moved to a system where the state furnishes official ballots rather than keeping that a province of the political parties. Today, the nomination process is fundamentally intertwined with the ballot access process, which is inherently a function of government, since government foots the bill and certifies elections.

    There is no violation of equal protection here either, insofar as any qualified voter has access to the political parties and may join or leave at will, and membership cannot be abridged for illegal purposes. The KKK could establish an Aryan Party and it would be required, by law, to accept African-Americans. That wouldn’t violate it’s associational rights, either, because the Supreme Court has held that the government has a compelling governmental interest in ending discrimination - as when they held that the Jaycees couldn’t discriminate based on gender in membership in Roberts v. United States Jaycees, 468 U.S. 609 (1984) - and that compelling interest trumps the organization’s First Amendment rights.

    Political parties do have associational rights, but those rights do not extend so far as to invalidate primaries as a valid way for parties to nominate candidates. The First Amendment protects freedom of association, but it does not mandate one form of nomination process over another. The First Amendment doesn’t invalidate Article I Section 4. It may limit the broad grant of authority there, but it doesn’t take it completely away. So long as nominations are a part of the overall electoral process - and they are - they are within Congress’ scope of authority to regulate.

    David, I’m really surprised that you’d make such a radical argument as the one you made above. You’re making an argument that, if accepted, would throw our political system into turmoil. It would undo over half a century’s worth of law, would upend our understand of what Article I Section 4 and Virginia’s Constitution mean, and would invalidate large portions of it on federal constitutional grounds. Is that what you really want to do? Because a court that does something like that could just as easily strike down Virginia’s marriage amendment, too. That’s exactly the kind of judicial activism you and others rail against, but here you’re advocating it because it benefits your personal view of what a political party is and should be. Isn’t that really where you want to be?

  8. Brian Schoeneman said on 11 Jun 2012 at 9:52 pm:
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    My last line should read “Is that really where you want to be?”

  9. David C.F. Ray said on 12 Jun 2012 at 2:00 am:
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    No, I certainly am not advocating the repeal of Marshall-Newman or DOMA or Proposition 8 in California.

    But this doesn’t really boil down to dueling charges of judicial activism.

    Say what you will about me, Brian — I am not your standard, run-of-the-mill, garden variety, talk-radio-listening, mindless, right winger. I oppose the death penalty, tobacco legality, contraception, and divorce. I am a Catholic, after all.

    And I also do not cower behind the nearest rock when the judicial activism charge gets thrown around freely and without discrimination.

    As you surely know, judicial activism, in the colloquial sense, often refers to any instance when a court issues a ruling the judicial activism chargers don’t like. Some, imagining themselves a little more consistent and smug in their sense of consistency, object to virtually EVERY instance when a court overturns any statute on constitutional grounds. These latter objectors feel it’s always wrong for courts to substitute their judgment over that of legislators. Prof. Lino Graglia of the University of Texas School of Law falls into this category.

    While you, Jim Young, Greg, and I could provide endless litanies of cases of true judicial activism, the question remains begged — just what is it and is it always bad?

    Judicial activism can include many things, including overturning challenged statutes, fashioning remedies far beyond the scope of legislative or constitutional authority, or even sometimes infusing decisions with answers to questions never asked by the litigants.

    In the middle instance — fashioning remedies far beyond the scope of legislative or constitutional authority — I hope you and I and most conservatives would agree that this is always illegitimate.

    But in the first and third options, I think the best response is, “it depends.” When a legislature has adopted a patently unconstitutional act, statute, or ordinance, courts absolutely strike it down. And when a case brought before a court ignores an overriding principle not argued by the litigants, I would submit it is a dereliction of duty for the court to not apply the overriding principle to the decision. But making these kinds of determinations inescapably involves some subjectivity on the part of the judges/Justices making them. If that makes me a judicial activist, then I’ll gladly take the title and assert my guilt.

    I imagine you and I will always disagree. But you do keep repeating the notion that the nomination process is an unseverable component of the general election process. You just never explain why. Not why governments treat them as unseverable, but why they cannot be severed at all. Remember, if you can imagine the severability, then they ARE severable. At most, you just assert that the two being unseverable is just the way it is “today,” as if though that were a constitutional justification.

    Just because something constitutionally mandated is not altogether practical does not mean it can therefore be constitutionally waived. I would direct you to the wonderful decision in Melendez-Diaz v. Massachusetts 557 U.S. 305 (2009), in which the Court basically found that the burdensomeness on the state of complying with the Confrontation Clause was not a valid argument to release the states from complying with it.

    Even IF you were were right (Louisiana’s 30+ years of experience to the contrary proves you’re not) that my position would throw our political system into turmoil, that wouldn’t make my position wrong. But, as I indicated in earlier comments, such turmoil fears in election law cases guide far more jurisprudence than adherence to the law and the U.S. Constitution. To answer your question — oh yes I would throw out the entire FEC regime and every statute conferring preferential ballot access to any party or private organization. Such preferential treatment places an undue burden on minority parties and candidates to make their cases to the public on an equal footing with major parties. I don’t ask government to remove the inequalities that exist in the body politic — some candidates or parties will always be richer, better known, more popular than others, and that’s perfectly fine — but government just cannot, in the name of time, manner, and place authority, extend preferential treatment to ANY applicant or group(s) of applicants for public office over any others. Ballot access laws almost all serve to put the weight of the state behind the legitimacy of the 2 major parties — that is both wrong and a violation of 14th Amendment equal protection.

    As for the provisions in the Virginia Constitution governing partisan primaries — absolutely irrelevant. If the 1st Amendment confers essentially plenary free association rights to citizens in any arbitrary grouping of their choosing, than all the state constitutional provisions in all 50 states combined cannot trump those rights. You would posit the 1st Amendment extends no such conferral, I posit it does — a rhetorical impasse between us.

    Finally, you and I hold a vastly and substantively DIFFERENT philosophy of the ultimate purpose for why free citizens formed political parties. Political parties do not ultimately exist to elect candidates, they exist to implement a common vision for their community. Electing candidates is merely one mechanism (albeit, arguably, the most important one) to accomplish that goal. This is how political parties are EXACTLY like the AFL-CIO or the NRA or NARAL or the Sierra Club or the RIAA. Political parties may have far more multi-faceted agendas than these other groups, but that is merely a difference of degree, not substance. Arbitrarily cherry-picking political parties as somehow unique social actors worthy of special political treatment and regulation by the state just does NOT make them unique, nor does it strip the partisan nomination process of its incidental nature in the general election process.

    And I love your assertion about “the roles they have been given in our electoral process.” The roles they have been “GIVEN?????????” Excuse me????????? “GIVEN????????????” No no no, my GOP colleague! NO NO NO! Political parties haven’t been “given” any role by government — they gave it to themselves. The role they play pre-existed state regulation of that role, so they didn’t need to wait for states to “give” it to them. Yes, it would follow, if one bought your “the role they were given” construct, that states might then be able to govern the way that role is given. But this is yet another fundamental flaw on the part of primary advocates in their understanding of political parties.

    And even IF, as you say, political parties only existed “for the sole purpose of electing candidates to public office” — again, untrue, but an integral component of your position — that would STILL be irrelevant, because a private organization’s purpose is none of the state’s business, so long as it seeks to operate “peaceably,” as stipulated under the 1st Amendment. The “peaceably” standard surely gives states and the federal government some legitimate authority to proscribe anarchic insurrection, terrorist activities, and the like — but not the authority to tell a political party that anyone seeking to be a Republican nominee must muster 10,000 statewide petition signatures to prove to a team of state bureaucrats that he is worthy of Republican consideration. Or to tell a political party it is too late or forbidden to strip a nominee of the nomination once conferred, even if the nominee, for example, decided to endorse his general election opponent a week before the election.

    You keep returning to more and more examples of state regulation (hoping over a century’s worth of institutional precedent will strengthen your arguments) and judicial upholding of such regulatory schemes, figuring I’ll cry uncle if you can just cite me enough different court cases to show me, by sheer VOLUME of such jurisprudence, that I’m wrong, but it just doesn’t work that way. Endlessly rhetorically conflating general election integrity interests (clearly a valid state imperative) with the imaginary state interest in regulating the nomination process is like trying to prove the case by shouting louder.

    I will once again point you to Melendez-Diaz v. Massachusetts — it sure threw a monkey wrench into criminal prosecution, especially after so many decades of precedent where states excused themselves from abiding by the Confrontation Clause on impracticality grounds — but it was the EXACT right decision by a Court saying, “hey, if this Clause is in the Constitution, it’s irrelevant how impractical it is — follow it!” There’s a perfectly available constitutional amendment process by which the people can repeal or revise the Confrontation Clause.

    The same principle is true of free association rights under the 1st Amendment. This may not suit the wishes of the vast majority of the electorate, which has been spoiled by decades of spoon-fed politics by the media, political parties, and governments, but that is what is required. And governments are not authorized to usurp free association rights of political parties to scratch the convenience itch of the public or to suit the personal interests of some candidates over others. Governments are authorized to govern time, manner, and place of general elections — that’s it!

  10. Brian Schoeneman said on 12 Jun 2012 at 12:23 pm:
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    I’m well aware that you’ve taken stances that outside the mainstream of the Republican party. We all have - it just means you’re thinking, even thought I disagree with many of your stances.

    I haven’t explained why the nomination process is unseverable because in the modern system, it is unseverable. There is no political will - either on the part of elected officials or on the party of the people themselves - to completely divorce the nomination process from being a quasi-public one. It used to be. And when it was, it was so rife with corruption, racism and graft that major reforms were imposed that created the modern process. Primaries are an inherent outgrowth of that evolution. Voters were tired of situations where party office was held by bosses wielding political power based on graft, patronage and corporate dollars. In the south, you had blacks being deprived of the vote by racist party machines like the one run by Harry Byrd here in Virginia. It was largely as a result of these factors that the modern system was created.

    I, for one, do not want to go back to the bad old days where party bosses decide, by fiat, who gets to run for what and who doesn’t. Where politicians were often no more than puppets to outside interests who got them nominated and elected. I’m sure you’ve seen Mr. Smith Goes to Washington - the primary evolved into its present form specifically because of the Taylors of the world, the real life Boss Tweeds and Thomas Platts. When left completely outside of government regulation, political parties fell pray to the same kinds of things that corporations fall pray to when they’re allowed to run amock without regulation.

    In some places, like Louisiana, political parties have been emasculated to the point of near futility, and most of that was the result of abuses like the ones I’ve mentioned before. To qualify to run, one simply has to file the ballots and indicate which party he or she is registered for. The party has no say in who ends up on the ballot, which led to David Duke’s infamous gubenatorial run as a Republican back in 1991. I really don’t think that’s what you want, is it?

    There has to be some kind of regulation. Otherwise, you will see situations like Louisiana happening all the time. I don’t want that and I don’t think you do either. But the other extreme - the one you’re championing - has been tried and found to be very open to graft, error and corruption. Do we really want to make the same mistake twice?

    The Melendez-Diaz case is interesting to point out, but it’s not on point here. The issue there was the multiple violations of the confrontation clause, justified by the claim of administrative inconvenience. That’s one situation where it’s completely legitimate for the courts to take a stand, and while there may be some short term hiccups, Melendez-Diaz didn’t represent the wiping away of laws on the books of every state and over half a century worth of federal jurisprudence.

    I am correct, David. I have both current practice and existing law on my side. That Louisiana has its own quirky system for electing legislators does not invalidate what I’m saying because Louisiana is still subject to federal regulation for its federal elections, and it’s subject to state law for its state elections. That Louisiana’s system is constitutional is clear, but that doesn’t make it superior or invalidate other systems that are different.

    I disagree with you about ballot access laws. There’s no equal protection violation for setting some basic threshold of popular support before giving a candidate access to a ballot. All candidates generally have the same requirements. That there are requirements isn’t an equal protection violation.

    The First Amendment doesn’t confer essentially plenary free association rights in any arbitrary grouping of their choosing. There are always limits. At some point, those limits are reached. And while I posit it does and you posit it doesn’t, we may be at a rhetorical impasse, but my side of the argument has a quite a bit of case law and precedent behind it, while yours rests seemingly on your own opinion.

    And I agree that we have vastly different philosophy about why political parties exist. I don’t know how to bridge that difference, because you seem to think political parties are no different than a debating society or a advocacy group. I disagree, and I think I have the weight of history on my side. Historically, parties would not exist were it not for electing candidates or easily marshalling support amongst like minded members in a legislature. I disagree that the difference between the Republican Party and the NRA is one of degree - this isn’t Europe. In a parliamentary system, all of our pressure groups would be political parties themselves. You could join the Catholic Party (many European nations have a Christian Democratic style party) and be at home. I could join an NRA party. But that’s not how our political structure evolved.

    As for my comment about the “roles they have been given,” these parties have certainly had their powers conferred upon them by the state. Once the electoral system was codified in the present form, where power was granted by the General Assembly to the political parties, you can’t really argue that they took the power onto themselves. They didn’t. The reason why political parties have authority in Virginia is that the General Assembly has granted them that power in VA Code Section 24.2-508. The Virginia Constitution, in Article II Section 4 gives the GA the ability to grant parties that authority, and the Virginia Constitution gets its powers from the people. Political parties would not have any more authority that a college fraternity arguing politics otherwise. But they do, and thus they are more than a debating society. They are quasi-public entities, subject to reasonable government regulation.

    You believe that the First Amendment right to free association is a get-out-of-regulation free card. It’s not. You believe political parties are purely private entities who should be exempt from any regulation. They aren’t. That’s not my opinion. That’s the current state of the law. I understand you want to argue otherwise, but them’s the breaks.

  11. pprados said on 12 Jun 2012 at 12:47 pm:
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    Judicial activism is reading into the Constitution something that truly is not there. What is coined in caselaw as “freedom of association” is nothing more than the convergence of the First Amendment rights of freedom of assembly and freedom of speech. Brian you seem to suggest that a strict constructionist, in order to accept “freedom of association” as a right enshrined in the Constitution would require the first amendment say:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, OR OF THE RIGHT OF THE PEOPLE TO PEACABLY ASSEMBLE TO ENGAGE IN SPEECH, and to petition the government for a redress of grievances.”

    Some underlying caselaw for the NAACP v. Alabama decision supports this argument that the freedom of association is merely a convergence of the two enumerated rights.

    “It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.” Dejonge v. Oregon, 299 U.S. 353, 365 (1937) (addressing laws proscribing meeting for purposes of criminal conspiracy, not peaceable assembly)

    Although not prone to effective quoting, Thomas v. Collins, 323 U.S. 516 (1945) rests on similar principles.

    Freedom of Association is enshrined in the First Amendment as the right of people to peaceably assemble to engage in speech, and I continue to oppose “judicial activism.”

    Oh yea, and I tend to agree with David CFR

  12. Brian Schoeneman said on 12 Jun 2012 at 3:14 pm:
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    Paul, all I’m saying is that the pro-choice guys say the exact same thing about the right to privacy. It’s all there, they just connected the dots.

    David’s definition of judicial activism is the one I tend to use, too, but it’s hard for those who decry it with a straight face to say one thing is bad and the other is good without looking like you’re cherry picking arguments.

  13. David C.F. Ray said on 12 Jun 2012 at 4:20 pm:
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    As noted now between us, we indeed have fundamentally different philosophical views on the role of political parties — so much so that I think you and I would agree there is no reconciling our respective positions.

    You’re right about one thing — you have a stunningly voluminous amount of case law and precedent behind your position — and virtually none of it based on a proper understanding of free association or the role of political parties. In fact, the fact that you cite the David Duke boogey man just proves how outcome based the rationale behind the primary/state regulatory regime really is.

    David Duke did indeed advance to the U.S. Senate runoff in 1990 and the Gubernatorial runoff in 1991 in Louisiana. Republicans all across America, from the White House on down, fell all over themselves to endorse Sen. J. Bennett Johnston (D) in 1990 and former Gov. Edwin Edwards (D) in 1991, both of whom won. So your David Duke example proves what? The system allowed him to file, the political climate allowed him to advance to a runoff twice, and he LOST twice. Hardly a political crisis screaming for state intervention.

    But even IF David Duke had won — let’s even say won TWICE (resigning his Senate seat in late 1991 and appointing another Klansman to replace him) — do you fancy our system so weak that we can’t absorb that? I have far more faith in the overall body politic than that.

    But in reality, your real quarrel, should David Duke have actually won, would be with the electorate of Louisiana — and no state regulation could fix that.

    Part of the problem in Louisiana, I concede, is that the law allows candidates to designate their own political labels, creating the potential for real confusion. This is why it is best for the ballot to contain NO political designation whatsoever. Yes, David Duke could still run around the state calling himself a Republican. But the state GOP could also run around the state disowning him and touting its own REAL nominee (who, in 1991, trivia buffs may remember was then-Congressman Clyde Holloway, NOT Gov. Buddy Roemer). All the way around, NONE of that discussion would be material to the Secretary of State and the elections machinery — they would just conduct the election and let the political environment dictate the outcome — which is EXACTLY what happened. No chaos, no turmoil, no sky-is-falling calamity — just back-to-back general elections in which a politically unacceptable candidate lost.

    So, yes, Brian, as distasteful as it would be, letting David Duke run and making his case to the public is FAR preferable to the state setting arbitrary thresholds to ballot access.

    Finally, again, you are RIGHT as to how primaries came to be — they were a Progressive Era response to corrupt party hackery controlling everything. But since it was the Progressives pushing the “reform,” what we got was MORE government, not less. Again, the real problem lay in the electorate which tolerated the corruption long enough for it to reach the critical mass it did. Much like factory owners allowing young children to have their fingers cut off in factories led to child labor laws — rather than address the bad actor at the source, Progressives always sought to expand the reach of government, centralize more and more power, and make all of us less free — forever. Primary laws are just another example of that. As the Progressives’ thinking goes, political parties cannot be trusted to be good faith participants in the system WITHOUT governmental control, so they always craft more government regulation to address every real and perceived problem.

    But even conceding ALL the corruption you cite, that STILL does not justify state action in regulating political parties. If party bosses are corrupt, prosecute them. If Governor Smith or Senator Jones or State House Speaker Doe are on the take, investigate them, impeach (where required), prosecute them, convict them, and send ‘em to the big house. THAT is the answer to corruption — not government proscription or limited permission to engage in constitutionally protected activities. Even in Washington, D.C., as crooked as it is, crooks still get caught — just ask Kwame Brown.

    And yes, Brian, the 1st Amendment actually predates the Virginia Constitution (which dates ALL THE WAY BACK 1970/1971), so Virginia cannot confer a right that already existed, nor restrict an essentially plenary one as free association is.

  14. Brian Schoeneman said on 12 Jun 2012 at 7:55 pm:
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    The only reason I brought up Duke was because his election as a State Senator and his ending up in the general election with “Republican” after his name was in response to your comment that Louisiana has managed to separate nominations from a party primary. I’m simply saying that there, it’s not been beneficial. You’ve got a guy claiming to be a Republican while the party itself has to spend time and money repudiating him and trying to convince folks he’s not a Republican.

    Had they had not effectively nullified their political parties with a system like that, Duke would never have gotten the nomination - either through a party primary or through a convention.

    So, at the very least, we can agree that Virginia’s system is better than Louisiana’s.

    It’s easy to say “prosecute” corrupt party bosses - but when you elected the people who would be making the prosecution decisions, it’s kind of hard to do that. Tweed and other political bosses in the Gilded age effectively owned the judicial process because they owned the judicial process. Once that kind of corruption infects a system, it is extremely hard to eradicate. That’s why it took almost a full century, complete reform of the civil service system, the rise of primaries and other reforms to end the practice. I really don’t want to go back to that, and I’m willing to accept some government regulation to ensure it doesn’t happen again.

    The 1st Amendment may predate this iteration of the Virginia Constitution, but the 1st Amendment has limits. I don’t understand why you seem unwilling to admit this. The First Amendment doesn’t give political parties the powers granted to it under Virginia law. Only Virginia law can do that.

    Without the express grant of authority in the Virginia Code, political parties are nothing more than glorified debating societies. But you and I both know they are far more than that.

  15. Anonymous said on 13 Jun 2012 at 10:13 am:
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    No, Brian, under the U.S. Constitution, they’re not. THAT is my point.

    BTW — David Duke was never a State Senator — he was a State Representative — and not a very productive or effective one. Again, a convenient whipping boy to justify state action, but not really a political threat, once exposed.

    And I can assure you, Brian, in today’s 24/7 news cycle environment, with endless supplies of You Tube videos, bloggers, anyone-with-a-phone-camera-is-a-reporter/videographer exposés, no Boss Tweed would ever be able to get full control of all the levers of government the way you fear he might. In this sense, it really IS a different world from the late 19th Century — just not a different U.S. Constitution from the late 19th Century.

  16. Brian Schoeneman said on 13 Jun 2012 at 3:47 pm:
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    David, your reading of the Constitution is not more authoritative than the Supreme Court’s.

    Sorry - I got his title incorrect. He was state elected official. Not using him as a whipping boy - pointing out the ineffectiveness of the Republican party in Louisiana that they can’t keep people from calling themselves Republican. Not exactly one of the hallmarks of a private membership organization, as you keep arguing the parties are.

    I give the Boss Tweed’s of the world more credit. If there’s enough money involved, they will find a way. They always have.

  17. David C.F. Ray said on 13 Jun 2012 at 4:48 pm:
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    With respect to the David Dukes of the world misidentifuying themselves, I daresay EVERYONE in Louisiana knew the score.

    He HAD been elected to the legislature as a Republican, so he could, with a degree of reasonableness, CALL himself a Republican.

    Of course, with party registration, ANY rogue can register with ANY political party, and the party would be powerless to strip him of membership — more unconstitutional intrusion into a private organization.

    But if there were NO party registration, and a candidate falsely asserted party membership, that party could always inform the public that the candidate was lying. The degree of inconvenience and expense suffered by that political party is of NO concern to the state — in the same way that the state does not restrict a candidate from falsely describing himself in myriad OTHER ways. This is a POLITICAL problem, not a STATE problem.

    If a political party is so weak as to be unable to inform the public of the lies of a candidate, it probably isn’t viable in the first place.

    But the state has NO interest in ensuring the viability of ANY candidate or party. That is a POLITICAL concern — the state merely has an interest in ensuring the general election is run fairly, openly, cleanly, honestly, transparently, and honestly — that’s IT.

    You may feel political parties or the public BENEFIT from primaries and other state regulation of partisan nominations — I disagree — but that’s an argument over the MERITS of conventions vs. primaries, not over the constitutionality of primaries.

    Our discussion has centered on the CONSTITUTIONALITY of state intervention, which, at BEST, could ONLY be justified, since it usurps a 1st Amendment right of free association, if there were a compelling state interest to do so. And in the history of American elections, there has NEVER been a state interest to do — just a state DESIRE to do — with the judiciary afraid to undo the intrusions.

    If I’m to believe in the essential totality of conspiratorial corruption of the judiciary under the likes of Boss Tweed, et alia, then I’m just as free to suspect the same pervasive conspiracy by the 2-party monopoly to control the judiciary in the one matter most sensitive to it — retaining its monopoly.

    No wonder all the significant jurisprudence out there is against my position.

  18. David C.F. Ray said on 14 Jun 2012 at 9:20 am:
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    I am so very sorry — I have never posted an anonymous comment ever before, and I did not intend to start now.

    I am the poster of the previous comment.

    [Ed note: fixed.]

  19. Brian Schoeneman said on 14 Jun 2012 at 9:34 am:
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    The fact that everyone in Louisiana knew the score isn’t the point. The point is simple: you believe political parties are private organizations that should be able to control their own internal processes and determine who is a member, right? So in Louisiana, we have political parties so weakened that they can’t even expel someone and keep them from claiming membership they don’t want claiming membership. Doesn’t that undermine your argument about them being a private organization?

    If the NRA kicked somebody out because they went on shooting spree and killed a dozen people, they’d be kicked out. Here, you have a confirmed racist claiming to be a Republican and no one can really say he isn’t. Not exactly in line with the idea of private organizations?

    That’s because, as I continually have noted, political parties aren’t wholly private organizations. As for third parties, I’m a Republican - they can take care of themselves. Not my problem, nor yours.

    That you don’t find any state interests in regulating political parties compelling doesn’t mean they aren’t. I don’t find Dancing With the Stars compelling, but plenty of people do. Opinions differ.

    But when we’re talking about things like constitutionality of primaries, the breadeth of the freedom of association, and so forth, we can all have opinions, but the only opinions that matter are the ones drafted by the courts - the ones that have the binding force of law.

    And in that regard, my view is supported by the law. Yours is not. Sorry.

  20. David C.F. Ray said on 14 Jun 2012 at 1:42 pm:
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    Nothing in my argument is undermined at all.

    What is the remedy if a candidate lies? You tell me. They do it all the time. Sometimes they get away with it. Maybe the electorate discovers the lie and punishes the candidate. Maybe the public doesn’t care. It’s ultimately up to them. That’s politics.

    In your shooting spree example, what happens when the shooter is expelled by the NRA, goes to jail, loses EVERYTHING, and continues to assert he’s a member of the NRA? Nothing. He lies. No one cares.

    If a party expels a member (impossible to do in states with party registration), and the former member lies about his membership, so what? The party can bring perhaps some kind of libel suit, I suppose, or seek some court order that he refrain from so identifying himself, but those are discretionary choices by the party — not something to be regulated by government.

    But again — all this is a debate over the MERITS of states regulation of nominations — not a debate over the CONSTITUTIONALITY of it. You continually conflate the two — so much so, I begin to question if you can actually get your mind around the notion that no matter how beneficial a public policy regime MAY be (and, of course, you and I disagree over its benefits), it can STILL be unconstitutional.

    In Louisiana, David Duke could make a fair enough case that he actually WAS a Republican. The party apparatus could certainly dispute his membership. But that would’ve been a POLITICAL debate — not one of concern to the state. The party, as I recall, ended up doing rather little for Clyde Holloway — I imagine because the White House threw all its weight behind Gov. Roemer. But those are POLITICAL developments, not ones validly the subject of public law.

    And yes, indeed, the treatment of 3rd parties is VERY MUCH my concern, because under the Constitution, we’re all the same. And I will never tolerate a system where the GOP and the Democrats get special treatment over all other comers, including special consideration by being offered state “assistance” in selecting our nominees.

  21. Brian Schoeneman said on 15 Jun 2012 at 9:48 am:
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    David, the point is simple: how can a membership organization actually be a membership organization if they can’t control who actually is a member and who claims to be a member?

    This undermines your argument that political parties are inherently private organizations that should be able to order their internal workings as they please without outside interference. You can’t make that argument and then say it doesn’t matter if someone claims membership and those organizations can’t do anything about it. Determining who is and who isn’t a member is a core attribute of private organizations. If a political party can’t do that, it’s hard to argue that they’re actually a private organization.

    The reason why I tend to argue merits rather than constitutionality is that the question of constitutionality is quite settled. I don’t really know of anyone, other than you and perhaps Greg now, who is seriously trying to argue that primaries themselves are unconstitutional. It’s not a serious argument and it’s never been treated that way by the courts.

    Treatment of third parties is not your concern. You are a Republican, you’re a SCC member. I want you to be concerned about the Republican party alone, and let the rest of the parties defend their own interests. That’s why I voted for you, after all.

  22. David C.F. Ray said on 16 Jun 2012 at 10:32 pm:
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    My point isn’t that political parties are powerless to control who actually is or isn’t a member of them. My point is that such membership is not a state matter. What other private organization relinquishes custody of its membership list, as well as the standards for membership, to government. Do the Jaycees? Do the Boy Scouts? Does the Anglican Church? Does Mensa? Does the Sierra Club? I could go on and on. Each of these organizations has membership, each one defines membership, accepts and expels members as they see fit, and discretionarily decide how to address fraudulent representations by non-members that the latter are members when they’re not. Such fraud may very well call for serious penalties in law (and I’m most willing to entertain a serious debate over just what those penalties should be, since I admit I haven’t fully thought out what particular punishment fits this particular crime/tort), but not prior restraint by government.

    Nothing in my argument is undermined by my insistence that not government be a custodian of the membership lists of the Republican Party or any other party.

    I am quite troubled by your insistence that I should NOT be concerned with how the state treats OTHER political parties. In the eyes of the state (and, of course, the Constitution) ALL private associations (with the possible exception of churches, which admittedly have a separately carved out role in society under the Constitution) are exactly the same, so mistreatment of one threatens ALL of us. I am indeed a Republican, Brian, and as such, I hope for the political defeat of Democrats, Green Party candidates, Socialists, Communists, etc. But I’m an American, too, and as such, under the Constitution, I want to ensure that NO party is afforded preferential treatment by government, or that ANY political party is denied the full enjoyment of all its 1st Amendment rights.

    By being so concerned, Brian, I am emphatically protecting the interests of the Republican Party, as is my fiduciary duty.

  23. Brian Schoeneman said on 17 Jun 2012 at 8:03 pm:
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    David - thank you for proving my point. It is exactly because political parties don’t have the same attributes as groups like the Jaycees, Boy Scouts, the Anglican Church, Mensa, the Sierra Club that I am making the argument that they are not wholly private organizations whose internal workings aren’t matters for state regulation.

    Because they can’t always do things like define membership, accept and expel members, etc. they aren’t private organizations.

    Political parties are quasi-public organizations and are thus going to be subject to more government intrusion as a result.

    That’s the entire point of my argument and where we have a fundamental disagreement.

    As an American, I believe in the two party system as it has evolved. I don’t see anything unAmerican about that system, which was arguably developed by Jefferson and Madison, the authors of our independence and our republican system of government. The Constitution doesn’t forbid the two party system, and equal protection is satisfied under the current state of the law - where primaries are valid and legal.

  24. David C.F. Ray said on 17 Jun 2012 at 10:45 pm:
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    Where in the world do you get from my comments that I concede that political parties cannot define their own membership, or accept or expel members? Of course they can. If the law forbids them from doing so, and you, in turn, use such proscription to prove your point, then your argument is not only demonstrably circular, it’s also unserious.

    I only pointed out that EVERY private organization is ABSOLUTELY POWERLESS to guarantee no rogue falsely asserts membership in it. That’s not evidence that the group isn’t private — just proof that no amount of attempted prior restraint will yield 100% compliance by all members of the public, any more than the death penalty for murder eradicates all murders.

    The states might, indeed, have forbidden political parties to be the sole determiners of their membership — and by doing so, violated free association rights guaranteed by the 1st Amendment. But one cannot PROVE the constitutionality of state regulation by stating, “well, the states stripped parties of this power, and thus, by virtue of their being so castrated, the parties lost their private identity, thus further granting states the power to regulate these new semi-public entities whose wholly private character they were compelled to surrender , and that this conditions must prove the constitutionality of the original power stripping.” I’m not a lawyer, Brian, but I can figure out that much.

    Your argument essentially boils down to, “well, this is how our system has evolved, and, since almost NO ONE objects (except bizarre David Ray and perhaps now newly bizarre Greg Letiecq) and all the courts have upheld it, it can ONLY be constitutional.” While legal precedents may very well get counsels for the states favorable rulings from either lazy, unimaginative, or terrified judges, if all such arguments rest merely on the volume of precedent, then they clearly must be nigh unto untenable, since they never even ATTEMPT to demonstrate the inherent consistency between the 1st Amendment free association rights of political parties and such intrusive state regulation. (Obviously, they wouldn’t seriously try — it doesn’t seriously exist. They instead rely on asserting, without logical foundation, that such free association rights don’t extend to parties, and then extend the logic of that unfounded assertion to establish the constitutionality of state regulation.) A sound argument wouldn’t NEED precedent — it would stand unmistakeably in the absence of ANY precedent. Any logician would confirm as much.

  25. Brian Schoeneman said on 18 Jun 2012 at 6:05 am:
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    David, read through everything you wrote about Louisiana. If the Republican Party can’t keep someone they emphatically don’t want claiming to be a Republican from running for office with that party listed after their name, they aren’t able to expel members. You don’t seem to think that’s a problem, above, but I think it drives the nail through the heart of your argument. You said yourself in the Duke situation that it would be arguable that he WAS a Republican, since he’d been elected as a Republican. Again, if they can’t expel and bar someone legally from claiming that title, it’s hard to argue they’ve got all the attributes of a private organization. And, yes, the NRA or someone else could get an injunction against someone for claiming to be a member when they are not.

    Then again, look at what’s happened in Virginia. After the issues in the Henrico County Commonwealth’s Attorney race, multiple high ranking Republicans, including (according to press accounts) Eric Cantor, Ken Cuccinelli and Bill Bolling, were expelled from the party for violating the pledge to support all our candidates in the fall.

    What impact did those expulsions have on those three? Did Cantor lose his Majority Leader position? Were Bill Bolling and Ken Cuccinelli referred to as an independent? Were either disqualified from holding party office in the future?

    No. There was no impact. Again, not exactly an attribute of a private organization when people can be “expelled” with zero consequences.

    As I wrote over at Bearing Drift http://bearingdrift.com/2012/06/09/flawed-assumptions-logical-contortions-plague-the-convention-vs-primary-debate/, when the definition of who is a Republican is so broad and open to interpretation, it’s hard to even argue that there truly is a standard definition. RPV really only defines Republican as someone “in accord with the principles of the party” and who pledges to support our candidates in the fall. Yet, nowhere is the phrase “in accord with the principles of the party” defined, and, as I noted above, the consequences for breaking the pledge to support all nominated candidates in the fall is nominal.

    Many, but not all, membership organizations don’t require members to adhere to a set of beliefs in order to remain members - they just require payment of annual dues. We don’t require all Republicans in Virginia to pay dues in order to be “members” of the organization. To be a Republican, one really only needs to claim the title. Beyond that, the only other real attribute is voting that way and the secret ballot prevents how one votes from being disclosed. Is that unconstitutional, too?

    And, again, you’re conflating two competing principles. You are making an argument about what the law should be - you think primaries are unconstitutional. I am explaining to you what the law is - primaries are not unconstitutional.

    You can argue against precedent all you want, David, but doing so undermines the legal system and it undermines the Constitution. The concept of stare decisis is of prime importance to our legal system because one of the fundamental reasons we have law is to predict outcomes. If you can’t predict how a court will rule based on prior, similar cases, you throw our system of government into turmoil. You’d be constantly litigating the same things over and over and over again, clogging the system with nonsense, while putting money in lawyers’ pockets and driving up litigation. While that might help me personally, it doesn’t help the country. That’s why I don’t understand why you think precedent is such a bad thing.

    Again, as I have stated ad nauseum, the First Amendment is not limitless. Not all speech is protected, not all assemblies are lawful, some state regulation that impacts religion is acceptable, and the right to petition is routinely regulated. Why do you think freedom of association is somehow more than the sum of it’s parts? If speech can be regulated and assemblies can be regulated - and they both can have been, lawfully, for years - then the freedom of association has limits too.

    Primaries are well within those limits because, as I have noted before, political parties aren’t wholly private organizations. They have been given authorities that they have accepted which have opened them up to more government regulation, and given their fundamentally public nature - everything they do is designed with an impact on society as a whole rather than on a discrete set of issues - there are no other organizations in our society like them. Thus, they have been regulated differently than other organizations.

    Where those regulations have gone too far, as in the California primaries issue, courts have struck down systems. But, for the most part, the system of primaries Virginia uses has not been found unconstitutional, and until it is, your argument is just wishful thinking.

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