Both Lane and the AJC have looked at a proposed change to the Rules of the Georgia Republican Party that, if passed, would, according to the GRA’s newsletter, “enable a GA GOP state convention of delegates (which consists if at least approximately 1,500 Republican activists from around the state) to vote to prevent a politician from qualifying to run as a Republican in the next election.”
The proposed rule was written and is being promoted by GRA President, Alex Johnson, Esq., justifying it on the basis that Governor Brian Kemp and other statewide elected GOP officials won’t give proper homage to Johnson and his 0.15% of the GOP voting base, but would rather focus on the other 99.85% of GOP voters that Johnson and the GRA don’t speak for (not to mention maybe even a few thousand more independent voters who appreciate good, conservative governance).
But could a simple rules change actually block from the GOP Primary ballot anyone who Johnson and his followers deem not sufficiently Republican enough (of course based on their subjective view of what it means to actually be a “Republican”)? The answer, shockingly, is that it possibly could.
According to the GRA, Johnson, pins his legal standing on Democratic Party of California v. Jones. His reliance on that case is laughable. The facts of the case are so far removed from his intended proposal that it’s hard to image Jones as the legal foundation for the rules change.
In that case, California voters passed Proposition 198 which put all primaries on one ballot. That meant a voter using just one ballot could jump from the Democratic to GOP primary which allowed a significate number of Democratic and independent voters to choose GOP nominees (and GOP voters to choose Democratic Party nominees). Justice Scalia, in his majority opinion, wrote, “The evidence in this case demonstrates that under California’s blanket primary system, the prospect of having a party’s nominee determined by adherents of an opposing party is far from remote–indeed, it is a clear and present danger.”
The case noted that, “in one 1997 survey of California voters 37 percent of Republicans said that they planned to vote in the 1998 Democratic gubernatorial primary, and 20 percent of Democrats said they planned to vote in the 1998 Republican United States Senate primary.”
In other words, it was very clear that the nominees were being decided by large percentages of voters from other parties, which diluted the ability of actual members of the Party, those who identified as Republicans or Democrats, to choose their own nominees.
In Georgia, GAGOP Rules define as the “members” of the Party, “All electors who are in accord with the principles of the Republican Party, believe in its declaration of policy and are in agreement with its aims and purposes may participate as members of the Georgia Republican Party, Inc. (hereinafter “GRP”) in its conventions or precinct caucuses.”
The practical effect of this rules change would be to cancel 1,100,000+ voters who vote in GOP primaries and place that power in the hands of (according to the GRA email) about, 1,500 activists (0.14% of GA GOP Primary voters).
I’m sure Alex Johnson’s argument would be that all 1.1 million GOP voters can participate in the convention process, but courts don’t look favorably on changes that complicate the democratic process. In fact, in Jones, Scalia also noted that, “We have considered it ‘too plain for argument,’ for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion.”
But if Jones is not much help, the GRA may find a “Hero” in Indiana.
Last year, the Seventh Circuit Court of Appeals handed down a ruling in Hero v. Lake County Election Board, 42 F.4th 768 (2022).
Joseph Hero was a long-time GOP activist and sometimes elected official who got caught up in a local fight over eminent-domain authority. Hero opposed the measure and publicly backed independent candidates against two Republican incumbent councilmembers. The result was the Indiana Republican Party banned him from the Republican Party for 10 years. When Hero attempted to run in the 2019 GOP Primary, his county party chair challenged his candidacy based on the ban and, although Hero met all of the eligibility requirements under state law to run in the GOP primary, the Board of Elections struck him from the ballot.
The court stated in upholding his removal, “The Election Board did not violate Hero’s First and Fourteenth Amendment rights. The decision to strike Hero’s name from the ballot imposed only a minor restriction on his ballot access. Indiana law provides alternative means to access the general-election ballot. Although Hero cannot run in the Republican primary—undoubtedly his first choice—he can either run as an independent by obtaining two percent of the total vote cast in the last election or as a write-in candidate. Ind. Code §§ 3-8-2-2.5(a), 3-8-6-3(a). As an independent, he can tout his Republican virtues, tell voters he supports Republicans, put up yard signs to that effect, and run on a platform identical to any political party. The only limitation is that he cannot appear on the Republican Party’s primary ballot.”
Where Indiana and Georgia differ is that Indiana does not have within their state code a law limiting who a party can reject for their primary. O.C.G.A. § 21-2-153 (b) protects individuals who want to run in a primary by stating;
Unless otherwise provided by law, all candidates for party nomination in a state or county primary shall qualify as such candidates in accordance with the procedural rules of their party; provided, however, that no person shall be prohibited from qualifying for such office if he or she:
(1) Meets the requirements of such procedural rules;
(2) Is eligible to hold the office which he or she seeks;
(3) Is not prohibited from being nominated or elected by provisions of Code Section 21-2-7 or 21-2-8; and
(4) If party rules so require, affirms his or her allegiance to his or her party by signing the following oath: “I do hereby swear or affirm my allegiance to the (name of party) Party.”
Perhaps Johnson would try to claim that an affirmative rejection would simply be a “procedural rule” or, alternatively, would hope the courts would strike down the law as it did to the California law in Jones.
However, this proposed rule change is not really about a litmus test to make sure “RINOs” don’t get to run under the GOP banner, but a temper tantrum by those in charge of the GRA who are pitching a fit that statewide elected GOP officials won’t kowtow to them and their agenda full of side issues and conspiracies that the average Republican voter doesn’t have the time for and cares little about. Brian Kemp may have been rejected by Johnson and his so-called band of true Republicans but won the approval of a wide majority of GOP Primary voters. That’s really who Johnson, Brant Frost V, and other GRA leaders focus their contempt. For a while, the GRA has been advocating taking the decision away from Primary voters and putting it in their hands by making sure that candidates are nominated by GOP activists in nominating conventions rather than in Primary Elections.
The Virginia Republican Party found itself in the political wilderness for decades after it switched from a Primary to Convention process. The GOP finally caught a break in 2021 with the largest registration ever with over 53,000 registering compared to only about 8,000 in 2013. Still, eventual nominee Glenn Youngkin told the press, “I’ve had dozens and dozens, if not hundreds and hundreds of good Republicans who said to me, ‘I wish I could participate, I missed the deadline,’ or, ‘I’m going to be out of town,’ or, ‘Guess what I’m in the military and I’m not going to be here,’” Youngkin said. “Shouldn’t we have 300,000 people participating in this next choice, not 50,000? That’s the way we’re going to win.”
But where Virginia has approximately 300,000 Republicans voting in their statewide primaries, more than 1,176,000 voted in the 2022 U.S. Senate GOP primary in Georgia with Herschel Walker receiving over 800,000 votes alone. Johnson would see those voters replaced by a measly 1,500.
The GAGOP is already, once again, facing massive debt issues over David Shafer’s and other’s legal bills. The lawsuits that could result from this rules change and the costs associated could be the final nail in the GAGOP’s financial coffin.
While many in party leadership who have spoken to me on the condition of anonymity have assured me the rule change will never make it to the floor, one thing has been certain about this convention cycle and that is the old rules no longer apply, and we may soon see if Johnson’s curious case from California will strike down Georgia’s laws guaranteeing a candidate can associate with the party they believe they most align with, and allow the voters to decide if they are sufficiently “Republican” enough, and will agree with Johnson and place that decision in the hands of a very few gatekeepers who will have the power to define in Georgia what it means to be a “Republican.”
Time will certainly tell.