Candidate Loyalty Oaths Are Unenforceable And Unconstitutional
States who try to use loyalty oaths to keep Donald Trump off the ballot will be running afoul of the Constitution.
As I noted yesterday, Virginia and a handful of other states are considering requiring candidate who want to appear on their Presidential primary ballot to agree to support the nominee of the Republican Party in the 2016 General Election regardless of who it might be. Obviously, this is a measure primarily directed at Donald Trump, who has refused in the past to emphatically say that he would not run as a third-party candidate, and famously made news in that regard during the August 6th Presidential debate. Primarily because of the fact that it would reinforce Trump’s claims to his supporters that he was being targeted by the “establishment,” such laws seem entirely counter-productive since they seem likely to play into Trump’s message and the beliefs of those supporting him. In addition to that defect, though, Norm Leahy and Paul Goldman, a conservative Virginia political pundit and former Democratic Party official respectively, argue that such oaths are most likely illegal:
Its 1996 ruling in Morse v. Republican Party of Virginia held that the Virginia GOP had no inherent right to conduct a primary. That being the case, how could it have the arbitrary right to decide who can be a candidate in the state-run primary on March 1? The state party’s powers are derived only from the statutory delegation of authority by the General Assembly pursuant to Article II, Section 4 of the Virginia Constitution.
In an earlier case, Democratic Party v. Wisconsin, the Supreme Court said national party rules controlled how delegates selected under state law could vote once at the national convention.
Following state law, the Republican Party of Virginia chose to elect national delegates in the state-run March 1 primary. The Code of Virginia allows the GOP to require anyone wanting to vote in the primary to first sign “a pledge by the voter of his intention to support the party’s candidate when offering to vote in the primary.”
But nowhere is the party given the right to require a candidate to support whomever the national convention nominates as a condition to being allowed to run in Virginia’s primary. State law sets out specific requirements for ballot access, including the submission of a signed, notarized document in which Trump, for example, agrees to forfeit his right to later run in Virginia as an independent or minor-party candidate should he lose the Republican presidential nomination.
Yet even if state law did give the party the right to limit ballot access through a “loyalty oath,” the “dump Trump” rule would violate the Constitution. Morse and other cases make clear any such rule would have to pass muster under the First Amendment as applied to state actors through the 14thAmendment. It can’t. The proposed pledge goes much farther than mere “intention.” It also takes away the political rights of those who want to join together to get Trump on the ballot and then cast their ballots for him
Virginia Republicans tried to do something quite similar to this in the past. Back in 2008, the party considered implementing a rule that would require everyone who voted in the Republican Primary that year to pledge to support the party nominee in the General Election. Not surprisingly, there was a swift uproar in response to this move that raised several of the same arguments that Leahy and Goldman do with regard to a candidate loyalty oath, especially the First Amendment argument. Additionally, of course, a loyalty oath like this is entirely unenforceable since there would be now way for the Republican Party of Virginia to determine that someone had violated it unless they actually admitted it publicly, and even then there was no real punishment for the violation since the party could not prevent that person from voting in a future primary. Despite the uproar that its efforts in 2008 had caused, the Republican Party of Virginia considered adopting a similar rule for the 2012 election only to lead to the same uproar which caused them to once again back down. Now, instead of putting the voters under an oath to support the nominee, they want to make the candidates make an oath to support the eventual party nominee, but no matter how they phrase it the idea suffers from the same flaws as the one considered in 2008 and 2012.
From a legal point of view, Leahy and Goldman seem to me to be entirely correct. Virginia law sets forth the requirements that someone must meet in order to be the primary ballot, and Virginia law does not have any provision allowing the party to require candidates to support the eventual party nominee. Absent that, and absent any controlling rules from the Republican National Committee, which similarly do not exist, it seems fairly clear that at least in Virginia the state party does not have the authority to require a candidate loyalty oath. The situation may be slightly different in other states depending on the authority that state law grants to political parties, but even if the oath is permissible under state law in those cases, it would seem to clearly be unconstitutional under the First Amendment. There is a long history of Supreme Court case law that makes clear that no individual can be compelled by the state to engage in political speech, and there are few things that are less political than the question of endorsing a candidate for office in an election. Whether the person being asked to make the oath is a candidate or a voter is immaterial as far as the First Amendment is concerned, in both cases it is compelled speech and therefore unconstitutional.
Leaving aside the legal issues, it is clear that, as with the voter’s loyalty oath, this candidate oath is entirely impossible to enforce. Let’s say for the sake of argument that all of the candidates who want to be on the Virginia ballot agree to the proposed oath, but that when the General Election comes along one or more of them either decides to endorse a third-party candidate or refuses to support the eventual nominee. There’s absolutely nothing that the Republican Party of Virginia can do at this point other than issue a strongly worded press release. Even if the candidate(s) in question tried to run on the ballot in Virginia again in the future, there wouldn’t be anything that the party could do to prevent that if they otherwise met the legal qualifications for ballot access. The situation might be different if the party had chosen a convention to pick its nominee, but the State Central Committee wisely did not choose that route and now they must abide by the requirements of the law and recognize the fact that their oath would be entirely unenforceable in addition to being unconstitutional. If these candidate oaths are adopted in Virginia or elsewhere during this election, I expect that they will be challenged in Court and I think there’s a fairly good chance that they will be thrown out.