October 2, 2007 – 3:46 pm
This is sort of interesting. In Virginia, incumbents are allowed to pick the process by which nominations for their seat are made. A part of that law was struck down. There is also no party registration. The 4th Circuit said that the law is unconstitutional, as applied, when the incumbent picks a primary as the nomination process:
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.
It seems that the court is saying that one primaries require party registration. That seems like a lot to find in the Constitution.
Tags: Courts, Rules, Virginia
Today, the Supreme Court overruled a district and appellate court and allowed issue ads within the "window". Stated intelligibly, issue ads will not be regulated. However, it looks like a fairly narrow ruling:
The Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice’s main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters — who were in the minority in four of the five rulings on Monday. The ruling came in Federal Election Commission v. Wisconsin Right to Life (06-969) and a companion case.
Presumably this means that there will be no challenges to the issue ads, while BCRA will stay on the books. And, presumably, NRLC and Jim Bopp will try to find another way to challenge the new status quo to continue to undermine BCRA. Who knows how this will play out.
As I have indicated previously, it seems clear that allowing these ads was the constitutional thing to do. Good for the court. It will be interesting to see how conservative pundits discuss this. I could see a lot of dissatisfaction with how narrow and respectful of precedent it is. Will this be an indicator for Alito and Roberts judgments in the future? Will that become an issue?
Tags: Campaign Finance, Courts
