In the coming days, we are going to hear more and more about state Republican parties that require “loyalty oaths” to participate as a candidate in a party’s primary — loyalty oaths require a candidate to pledge that he or she will support in the general election the candidate who wins the party’s primary. In light of that, readers might enjoy reading about Justice Scalia’s encounter with these loyalty oaths, as a voter, nearly 20 years ago. This story is recounted in our book, The Law of Democracy:
In practice, many parties enforce “loyalty oaths” informally, as with controlling entry into the nomination setting in what are called “firehouse primaries” (a “firehouse primary” is a polling process conducted by a party without state supervision). In the mid-1990s, a news report indicated that Justice Antonin Scalia had “questioned the legality of the oath” required from Republican voters who sought to participate in a firehouse primary in Fairfax, Virginia, but had then signed the form “after getting an explanation from a party official.” Eric Lipton, Democracy Can Stop Traffic, Wash. Post, Jan. 8, 1995, at A1.
We end this excerpt with a question: Were Justice Scalia’s initial reservations well-founded?
The South Carolina Republican Party form that Donald Trump will have to make a decision about signing by the end of next month contains this language:
I hereby affirm that I generally believe in and intend to support the nominees and platform of the
Republican Party in the November 8, 2016 general election; that I will not knowingly violate any
election law or any law defining and prohibiting corrupt and fraudulent practices in campaigns and
elections in this state; that I will qualify for the office if elected thereto, including, but not limited to,
complying with any limitation prescribed by the Constitution of the United States; that I will fulfill all
filing requirements set by the South Carolina Republican Party, including but not limited to completion
of this form and payment of a non-refundable $40,000 filing fee; that I acknowledge if I have not jointly
submitted this form and the filing fee by the 5:00 P.M. September 30, 2015 filing deadline, my name is
not eligible to appear on the ballot; and that I understand that my name will appear on all ballots as
designated in this declaration.
If you wonder whether these oaths have any serious legal bite, South Carolina law gives the parties plenty of power to enforce the oaths. But it is important to understand that this law does NOT apply to the presidential primaries; I offer the law to illustrate how, outside the presidential context, state laws can attempt to give these loyalty oaths powerful legal bite:
SECTION 7-11-210. Notice of candidacy and pledge.In the event that a person who was defeated as a candidate for nomination to an office in a party’s primary election shall thereafter offer or campaign as a candidate against any nominee for election to any office in the ensuing general election, the state chairman of the party which held the primary (if the office involved is one voted for in the general election by the electors of more than one county), or the county chairman of the party which held the primary (in the case of all other offices), shall forthwith institute an action in a court of competent jurisdiction for an order enjoining the person from so offering or campaigning in the general election, and the court is hereby empowered upon proof of these facts to issue an order.
Of course, just because state law authorizes this does not mean the law is constitutional.