GOP panel claims open primaries illegal, files suit; A33
By Garren Shipley
(Daily Staff Writer)
RICHMOND — A lawsuit pending before the Fourth Circuit Court of Appeals could radically alter the way Virginia elections are held.
Members of the 11th Senatorial District’s Republican Committee have sued the Virginia State Board of Elections for the right to keep Democratic voters from casting ballots in the district’s 2007 nominating primary.
Open primaries are unconstitutional, they argue, because they allow Democrats to participate in a GOP event, infringing on the party’s right of free association.
Lawyers for both sides argued the case before a three-judge panel earlier this week.
A lower court threw out the case, holding that the party’s rights have not been infringed upon yet.
Candidates in Virginia have several ways to make it to the General Election ballot.
Rather than having a primary or a caucus in every contested race, state law leaves the choice of method to the incumbent candidate. If the incumbent isn’t running again, his or her political party gets to choose.
If a caucus, convention or other event is held, the party has full control over who does and who doesn’t participate.
But Virginia law doesn’t afford parties any choice as to who can participate in primary elections. They’re open to everyone, with the exception that voters can only participate in one party’s primary, not both.
That’s simply not constitutional, according to the GOP committee.
On its face, the state’s open primary law allows for “party raiding,” people from the opposite political party voting in primary elections to choose a candidate who would be less likely to defeat their opponent in a general election, said Sen. Ken Cuccinelli, R-Centreville, the attorney representing the committee.
Courts have consistently held that political parties have the constitutional right to associate with anyone they choose, and that states can’t force them to associate with people who oppose them.
As the law stands now, the GOP has to “choose between taking strong positions and using aggressive methods to advance their political message and risk inciting ... party raiding Democrats,” or “moderating their message and/or using less aggressive methods in an effort to avoid or reduce the likelihood and/or severity of party-raiding by Democrats,” he wrote in court filings.
Letting the GOP exclude those who have previously voted in Democratic primaries would all but end party raiding.
“This would also have the collateral result of keeping Republican voters from crossing over and voting in Democratic Party primaries,” he said. “In my client’s view, that is exactly as it should be, Democrats should nominate Democrat candidates and Republicans should elect Republican candidates.”
A spokesman for fellow Republican Attorney General Bob McDonnell, who is defending the Board of Elections, said the office doesn’t comment on pending litigation.
But lawyers for the commonwealth argue in court filings that the lower court’s decision to dismiss the case was the right one.
Rule changes to allow exclusion haven’t taken effect yet.
Also “the [GOP] does not have to choose a primary to select their candidate,” lawyers wrote.
That’s not a valid argument, Cuccinelli said.
“If you are in the Lions Club and you show up for your annual meeting to elect your officers, you wouldn’t let a bunch of Rotary Club members that have no intention of supporting the Lions Club vote on who the Lions Club’s officers should be,” he said.
In the end, a successful suit may not have that much of an impact on Virginia’s political scene, according to Craig Brians, a professor of political science at Virginia Tech.
“It’s not that big of a deal, depending on what the parties make of it,” he said.
Successful candidates aren’t changing their message from primary to general election, Brians said. With TV cameras focused on races, primary candidates more often than not just treat the primary as an extension of the race in November.
Being able to focus on just known Republicans and Democrats would certainly make get out the vote drives and direct mail efforts more effective.
Republicans and Democrats have largely stopped the “retail politics” of knocking on doors and shaking hands, and are instead using electronic means to reach voters.