Catoosa making a federal case out of it

With the Georgia Court of Appeals not willing to take up the appeal filed by the Catoosa County Republican Party until the August calendar, long after the primaries and any potential runoffs would be over, the Catoosa County GOP and its officers have made it a federal case, asking the United States District Court in Rome, GA to enjoin the Catoosa County Board of Elections and Registration from placing the Republican candidates the Party leadership rejected on the Republican Primary ballot.

In addition to the Georgia Court of Appeals waiting to take up the case, the issue seemed further settled when the Catoosa County Board of Elections and Registration rejected an appeal of the local GOP to remove the candidates at a special meeting held Tuesday, April 2. With time running out, the Catoosa County Republican Party has now turned to the federal courts in their hope to limit the choices of Republican candidates in their attempts to disenfranchise thousands of voters.

As the Atlanta Journal-Constitution notes, “A hearing is set for April 17 — less than two weeks before early voting is set to begin ahead of the primary.”

In their six page motion seeking a Temporary Injunction and Restraining Order against the Catoosa County Board of Elections and Registration and the Board members in their official capacity, the Catoosa County Republican Party and Party Chair Joanna Hildreth has asked the Federal District Court to order the Defendants, to “remove any Independent Candidates, and any county level candidates not qualified by the Catoosa County Republican Party from the Republican Party Primary ballot.”

The Catoosa County GOP also asks the court to order the Catoosa County Board of Elections and Registration to add their rejected ballot questions back on the primary ballot.

The attorneys for the Catoosa County Republican Party, Catherine Bernard and Alex Johnson, rely on the same cases they have been trying to advance as precedent in their claims that the Catoosa County Republican Party has a First Amendment right of association to deny individuals from qualifying, once again relying on California Democratic Party v. Jones and Duke v. Massey. I have already distinguished Jones based on the facts surrounding a party organization preventing a candidate from qualifying, but have not distinguished Duke. I will do so now.

Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996) is one of a series of cases involving David Duke, the former Louisiana KKK leader who attempted to run for President as a Republican in 1992. Georgia Republican Party leaders rejected Duke as a candidate for the Georgia Republican Presidential Preference Primary (PPP) ballot in the 1992 election. The case does hold that, “The Republican Party has a First Amendment right to Freedom of Association and an attendant right to identify those who constitute the party based on political beliefs” (Id. at 1234).

However, the case was also heavily reliant on state law at the time, and is still true today, which placed the decision as to which candidates would be allowed on the PPP ballot exclusively with party leadership. However, to this day, state law does NOT give the same deference to party leadership when selecting candidates for the General Primary ballot.

Catoosa’s reliance on Duke ignores that the decision does not make the First Amendment argument absolute, stating in the decision, “The state has a compelling interest in protecting political parties’ right to define their membership. Duke, 954 F.2d at 1530. Moreover, states have a significant interest in structuring and regulating elections in order to facilitate order, honesty and fairness. Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). Common sense dictates that states must regulate elections and that the regulations will necessarily impose some burden upon voters and parties” <emphasis added> (Id.).

The decision further holds that, “Therefore, as leaders the membership of the party elected, they have been entrusted with the authority to make decisions for the party, and O.C.G.A. Section(s) 21-2-193 recognizes that these party leaders are in the best position to decide who should appear on Georgia’s Republican Party presidential primary ballot” <emphasis added> (Id.).

By relying solely on the holdings of Jones and Duke, the Catoosa GOP fails in their motion to even mention state law, which governs the procedures in the General Primary and do not give party officials anywhere near the same latitude that is afforded for the PPP.

There is another reason that the O.C.G.A. may afford a greater level of authority to party leaders for the PPP ballot, and that is the general public NEVER votes for the Presidential candidate directly. In the PPP, while a voter may select a particular candidate, they are, in fact, allocating Delegates who will then go to the National Convention and nominate that candidate. However, the Delegate has a right to vote for the Presidential candidate of their choice at the convention under certain state law defined parameters.

This means that the PPP and the eventual results are almost purely an internal party process.

This contrasts with the General Primary in which the voters vote DIRECTLY for the candidate, including the party’s nominee.

Georgia has an open primary system, which means that there is no certification of “Party Membership” in order to vote in a party’s primary. An individual voter is free to choose the ballot of the Republican or Democratic Party primary and vote on that party’s nominees on the day of the election. While the issue of open versus closed primaries (a primary where only those who pre-register to vote as a member of a particular political party may vote in a party primary) is one worth debating, the courts have never held that the open primary system to be unconstitutional (in fact, the Majority Opinion in Jones explicitly upholds the open primary system), nor does Catoosa County even make it an issue in their filings. Unlike Georgia, California has voter registration by party, so, in California, a voter can register to vote as a Republican or Democrat (or other party). In Georgia, voters cannot register to vote by party. All Georgia voters are technically “independent.”

Like Georgia, California has an open primary, which means even a registered Republican can vote in the Democratic Party General Primary. However, its not really that simple as California really has a different system all together which you can read about on the California Secretary of State’s website.

This is important as a voter registration card in California (and many other states) has a voter’s party membership on their card because they have, at the time they registered to vote, declared themselves to be a member of that political party.

This isn’t so in Georgia (and many other states with open primaries). The late Justice Antonin Scalia, writing for the majority in Jones, stated, “Proposition 198 forces political parties to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival. A single election in which the party nominee is selected by nonparty members could be enough to destroy the party” <emphasis added>.

But in Jones, the case did not turn on the leadership of the party, as it did on Duke, which was supported by state law, but on the members of the party. Catoosa County even notes this in their motion stating, “The ability of the members of the Republican Party to select their own candidate … unquestionably implicates an associational freedom.”

Since Georgia does not have party registration allowing voters to declare their party membership in advance, then we have to look to how the Georgia Republican Party defines “membership.”

Section I of the Rules of the Georgia Republican Party defines “Membership and Participation” noting in Rule 1.1, “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…”

By Party Rules, the members of the Georgia Republican Party are simply Republican voters (defined in the Rules as “electors” based on the term used in State Law). If Party rules are not controlling here for the definition, then the answer to the question, “Who are the members of the Republican Party?” is the much broader group of people, those who, at the time of the primary election, request a Republican Party ballot.

If the ability of the members of the Republican Party to select their own candidate is a Constitutional right, then the Catoosa County Republican Party has violated the constitutional rights of its members to select their own candidate as their party nominee. As in many counties where the primary is the de facto General Election as nominees are typically not opposed by the opposition party, by limiting the choices of candidates for their members, the Catoosa GOP leadership is taking away the ability of the members of the Republican Party to select their own candidate in favor of a system where a handful of “leaders” decides for the membership.

Now, through the Federal District Court in Rome, GA, the Catoosa County Republican Party has made a federal case on why a small and select group of GOP leaders should have the ability to violate the rights of thousands of GOP members in Catoosa County. It will be interesting to see how the federal courts respond.

I have April 17 circled on my calendar. Every Catoosa County Republican should too.