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IS the RPV’s LOYALTY OATH VIOLATIVE of the VOTING RIGHTS ACT? I’m not sure BUT check this out…

The Republican Party of Virginia has instituted the so-called “loyalty oath” for the March 6 primary.  Here‘s the news story about it:

Anyone who wants to vote must sign a form at the polling place pledging to support the eventual Republican nominee for president. Anyone who refuses to sign the pledge will be barred from voting.

During a brief meeting Wednesday at the state Capitol, the State Board of Elections voted 3-0 to approve three forms developed by the election board’s staff to implement the loyalty pledge requested by the state GOP.

It is clear that the state party has aligned with the Board of Elections to require this loyalty oath. This is clearly state action under the Fourteenth Amendment.  Political party primaries are not private clubs since Smith v. Allwright, 321 U.S. 649 (1944) and Terry v. Adams, 345 U.S. 461 (1953) and thus are under the purview of the Fourteenth Amendment.

First, I must say that I have mixed feelings about the loyalty oath.  I have been on both sides of the question.

When I ran for the House of Delegates in 1989, (one day when I have blogger’s block, I’ll write about my adventures running for office.  It has excitement, suspense, dork gets dates like crazy, debates and did I say sex?  No not sex, the Lord would frown on that!  But certainly political fun!) I was told after my narrow 48-52% defeat (I told you there was excitement!) that the Democrats had sent some people to vote for my opponent because they reasoned he was weaker than me to run against in the fall campaign.  I could believe it.  But I also recall (I did not do it) GOP activists voting for Virgil Goode, then a Democrat, in a primary against Senator to be Chuck Robb.  (It didn’t work – Robb won the primary and the election)  I voted for a Democrat in a primary for Attorney General (it was Whitt Clement; and I would have voted for him again after his successful tenure as Secretary of Transportation for Governor Warner.) because if Clement had won I’d have helped him and voted for him in the general election.

So I am aware of electoral malpractice as the Brits put it and I consider it immoral to vote in the other party’s primary for the purpose of voting the weaker candidate in the general election.  But I am  not sure a loyalty oath is appropriate, especially in light of the tremendous controversy over Ron Paul.  There could be a pledge that I intend to support the party in the general election I suppose.

Here’s the question – Does the state GOP have to seek preclearance of this loyalty oath under the Voting Rights Act?  The answer is probably yes.  Here is the DOJ website and here is the pertinent seciton of the regulations of the VRA:

51.7 Political parties.

Certain activities of political parties are subject to the preclearance requirement of Section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (a) If the change relates to a public electoral function of the party and (b) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political subunit subject to the preclearance requirement of Section 5. For example, changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance requirement. Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are chosen are subject to the preclearance requirement of Section 5. Where appropriate the term “jurisdiction” (but not “covered jurisdiction”) includes political parties.

I cannot imagine that this loyalty oath would be anything but a hindrance to minority voting in the GOP primary.  I want to believe my party would not act in such a way as to favor or hinder candidates.  Many perhaps all on state central committee are honorable men and women.  But did they ask the DOJ for okay?  Should someone do that? I do not like preclearence, it stigmatizes the South when no longer necessary.  But it is the law of the land.

I encourage the RPV to replace its loyalty oath with the one in the call of the state convention:

All legal and qualified voters under the laws of the Commonwealth of Virginia, regardless of race, religion, national origin or sex, who are in accord with the principles of the Republican Party and who, if requested, express in open meeting either orally or in writing as may be required, their intent to support all of its nominees for public office in the ensuing election, may participate as members of the Republican Party of Virginia in its mass meetings, party canvasses, conventions or primaries encompassing their respective election districts.

UPDATE:  Del. Bob Marshall (I am proud to say was my delegate from 1991 to 1996!) has objected to the loyalty oath as well.

Loyalty oaths are detested by many good Republicans who solidly back our party’s principles and who have never voted for a Democrat in their lives,” Marshall said.  “And there are other concerns.

“In November, Virginia House Speaker Bill Howell and Virginia Attorney General Cuccinelli, both Republicans, supported an Independent for Henrico County Commonwealth’s Attorney over the Republican nominee.  Does this make them suspect Republicans?

“How many conservative Democrats voted for Ronald Reagan in ‘Republican’ primaries in 1980?  Would they have voted in a Republican primary that required a loyalty oath when Reagan was probably the only Republican they would vote for?   I doubt it.

“Requiring Virginia election workers to enforce a Republican loyalty oath in a primary paid for by the general taxpayer is a markedly questionable use of tax money.

I have asked the reporter on the RTD article if he knows about any preclearence obtained.  I’ll let you know.  I did not find any evidence of it.

About Elwood Sanders

Elwood “Sandy” Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia’s first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

One Response to “IS the RPV’s LOYALTY OATH VIOLATIVE of the VOTING RIGHTS ACT? I’m not sure BUT check this out…”

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    1. […] think it could violate the Voting Rights Act, although an attorney I respect very much says no: So what about the question […]


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    Tom White Says:

    Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

    Check out NewsMax!

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