Court Affirms Virginia’s Open Primaries Are Unconstitutional
(H/T Good Sense)
The U.S. Court of Appeals for the 4th Circuit handed down a ruling today in the case of Miller v. Brown affirming in full the decision by Judge Hudson of the U.S. Dist. Court for the Eastern Dist. of Virginia that the Commonwealth’s open primaries law is unconstitutional (at least with regard to instances where an incumbent selects a primary as the means of nomination and the political party committee is forced to use a method by which it is prevented from excluding voters with whom they do not want to associate.)
The appellate decision goes through a list of U.S. Supreme Court decisions on this issue and makes clear that a state must have a compelling interest for it to interfere in a party’s political nomination process and that is a high burden for a state to meet. However, in Virginia a party can use means other than a primary to select a nominee and those means can be tailored to exclude non-party members. It is only when a committee is directed by an incumbent to hold a primary and that primary must be open in accordance with state law that the committee’s First Amendment rights of association are violated.
Further, applying strict scrutiny, the court held that the various state interests offered by the Board in support of the open primary law were not compelling. See Miller, 465 F. Supp. 2d at 594-95. The court thus concluded that “[w]hile § 24.2-530 survives facial constitutional challenge, it is constitutionally infirm as applied to the narrow facts of this case.”
We therefore conclude that none of the reasons articulated by the Board constitutes a compelling state interest justifying a severe burden on the Committee’s right of association. Accordingly, we affirm the holding of the district court that § 24.2-530 is unconstitutional as applied to the Committee.
For the reasons discussed above, we affirm the district court rulings that Va. Code Ann. § 24.2-530 is facially constitutional but that the statute is unconstitutional as applied to the Committee.
So, what does it all mean? Well, from a logical standpoint, since there can now exist a situation where a party that wishes to restrict participation in its nomination process could be forced to use a primary as the method of nomination, one would have to conclude that the only practical means for Virginia to be able to comply with this court ruling would be to institute party registration. I see no other means by which the Commonwealth could ensure compliance with this ruling.
It is about time!
Filed under: Judiciary, Republican Party of Virginia, Virginia Politics
Actually, the Court said quite clearly that our open primary statute was facially neutral and not unconstitutional per se. What was unconstitutional according to the court was allowing the incumbent in a district to mandate that a party choose its nominee by an open primary. This clearly leaves open the possiblity that Virginia law could provide that parties have choices of process for selecting nominees but if they choose taxpayer funded primaries all registered voters would be allowed to vote. The court clearly wasn’t ruling against open primaries, but rather the process of incumbent choice that forces an open primary on a political party without its consent.
Not nearly so far reaching as some, including this headline, are suggesting.
I agree with Lovell but go on to say that just because you don’t see any other means by which the Commonwealth could comply doesn’t mean there are none. The loyalty oath administered in the 2000 Presidential Primary is one example of another means. Eliminating incumbent power over the nomination method is a second. Eliminating state-funded primaries completely is a third and, based on the low turnout in party primaries and the high cost to local governments to run them, that is the course that should best appeal to conservatives.
Actually, you completely miss the point. The point was that parties CAN restrict who associates with them and it is their constitutional right to do so. As I clearly stated, it is limited in the circumstances to when an incumbent selects a primary as the means of nomination. If a party itself were to select a primary, then it would have to be open. It is only when the primary option is NOT selected by the party committee could they opt to restrict it.
So, either incumbents will lose the ability to choose their method of nomination (and don’t think that they are going to give that up very easily) which is what I think that you were driving at or else Virginia will be compelled to institute a method by which closed primaries can be enforced, the easiest being that of party registration.
The loyalty oath is a joke. Sen. Chi-ching-e$ter was mocking it during the firehouse primary for the 28th Dist. nomination earlier this year, saying that anyone who wanted to vote could and that they should just sign the oath and ignore it in Nov.
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