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?
The opinions expressed here are solely the views of the author, and not representative of the position of any organization, political party, doughnut shop, knitting guild, or waste recycling facility, but may be correctly attributed to the Vast Right-Wing Conspiracy. If anything in the above article has offended you, please click here to receive an immediate apology.
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