I got an e-mail from a friend, wanting to know about whether the plan of the Virginia Republican Party to require a “loyalty oath” to participate in their presidential primary is legal under the Voting Rights Act. What this refers to is the vote by the State Board of Elections to require voters in the March 6 primary to sign a statement that reads:
I, the undersigned, pledge that I intend to support the nominee of the Republican Party for president.
Whether it is good politics is an issue that I will leave for a different forum — this is not intended to be a political blog. Suffice it to say that as WTOP reported here, Virginia Governor Bob McDonnell and Lieutenant Governor Bill Bolling oppose the plan. Conventional wisdom is that the hard-core political right wants the “loyalty oath”, to discourage independents and Democrats from crossing over to vote in the Republican primary. In Virginia, we have a long tradition of crossover voting in an open primary; former Republican Senator/Governor George Allen voted in the 1977 Democratic primary for Governor to vote for Henry Howell, whom the Republicans thought was a weaker candidate than Andrew Miller.
The law is that the Voting Rights Act is no problem — it doesn’t apply to nominations. But does that make the “loyalty oath” legal?
First, when the political parties are nominating candidates by convention or caucus, they can require whatever form of “loyalty oath” they may want. The Democratic Party plan has a requirement that any participant in a caucus sign a declaration that says that he or she is a Democrat, believes in the principles of the Democratic Party, has not participated in the nominating process of any other party for this election, and does not intend to support any candidate running against a Democrat in the next ensuing general election. For any race other than a Presidential race, if there is to be a government-run primary, that primary must be open; the only limitations on participation are things like age and residency, according to Va. Code §24.2-530. In a presidential year, there is a different statute that controls — Va Code 24.2-525, which provides in part:
§ 24.2-545. Presidential primary.
A. The duly constituted authorities of the state political party shall have the right to determine the method by which the state party will select its delegates to the national convention to choose the party’s nominees for President and Vice President of the United States including a presidential primary or another method determined by the party. The state chairman shall notify the State Board of the party’s determination at least 90 days before the primary date. If the party has determined that it will hold a presidential primary, each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party, as defined in §24.2-201, subject to requirements determined by the political party for participation in its presidential primary. The requirements may include, but shall not be limited to, the signing of a pledge by the voter of his intention to support the party’s candidate when offering to vote in the primary. The requirements applicable to a party’s primary shall be determined at least 90 days prior to the primary date and certified to, and approved by, the State Board.
But now we come to the second rub — if the Republican Party wants the State Board of Elections to require a loyalty oath, it is supposed to get approval of that 90 days ahead of the primary. And the requirement was imposed 70 days before the primary, not 90. So the requirement could be challenged in Court, and the challenge would almost certainly be successful.
So what about the question that my friend actually asked? What does the Voting Rights Act say about this? As noted earlier, the answer there is “Nothing.” Apparently, though, the Republican Party of Virginia is going to meet again on January 21, and they will reconsider their request that the primary be closed. According to RPV Chair Pat Mullins, this reconsideration was announced on Facebook.
