Appeals court rules part of open primary law unconstitutional

By Bob Lewis, AP Political Writer – October 1, 2007

RICHMOND, Va. – A state law that allows an official seeking re-election to force his party to pick its nominee for the seat in an open primary is unconstitutional, a federal appeals court ruled Monday.

The 4th U.S. Circuit Court of Appeals ruling could scuttle a historic prerogative that has given Virginia incumbents the power to determine how they defend their seats from challengers within their own parties.

It’s also likely to renew legislative battles over state election laws, particularly party registration and restrictions on who can vote in primaries.

Virginia now allows any registered voter to participate in Democratic or Republican primaries.

Republican conservatives began challenging the law 11 years ago, alleging it allows Democrats and others to meddle in their nominating process. Monday’s ruling came in a case filed by the Republican Committee in state Republican Sen. Steve Martin’s suburban Richmond district. Martin helped set up the challenge last year by demanding a primary.

The court ruled unanimously that open primaries are constitutional when freely chosen by a political party because state law also provides the option of closing the nominating process by holding conventions or canvasses, known as “firehouse primaries.”

But when an elected state official seeking another term uses the law to force his party to open the nomination to every voter through a primary, it violates the party’s First Amendment’s right of free association, the ruling said.

“You cannot force a political party to accept people it doesn’t want any more than you can force people having a cocktail party on their porch to accept people who aren’t invited,” said L. Steven Emmert, a Virginia Beach lawyer who specializes in appeals and is chairman of the Virginia State Bar Association’s Appellate Practice Committee.

The law came under fire from GOP conservatives in 1996 when U.S. Sen. John W. Warner, R-Va., used his prerogative to choose a primary in a nomination challenge from former Reagan administation budget aide James Miller. The party’s right wing, furious that Warner had spurned Iran-Contra figure Oliver L. North as the GOP’s 1994 Senate nominee, had hoped to defeat Warner in a state convention. Warner defeated Miller in the primary, and Republicans claimed that Democrats intruded to help the popular, centrist senator.

Former state GOP Chairman Patrick McSweeney, who unsuccessfully challenged the open primary law then and was one of the attorneys who argued against it this time, said the ruling could provide new impetus for the General Assembly to enact a party registration law.

McSweeney said the GOP is not looking to alienate independent voters, “but we wish not to have avowed Communists, Greens or Democrats involved. They try to screw it up, to get the candidate they think is most beatable.”

Had the ruling come six months ago, he noted, it could have profoundly affected Republican incumbents in this year’s legislative races. Senate Majority Leader Walter A. Stosch, R-Henrico, chose a primary and survived a conservative challenger by only 272 votes out of more than 16,700 cast.

“Now, incumbents just can’t force you to have an open primary,” McSweeney said.

Attorney General Bob McDonnell, whose office argued in support of the state law, has not decided whether to appeal the ruling to the U.S. Supreme Court, said David Clementson, a spokesman for McDonnell.