The Republican National Committee (joined by the National Republican Congressional Committee and the National Republican Senatorial Committee) filed an amicus brief in support of Donald Trump in the Minnesota ballot access dispute. In one sense, I suppose, that’s not so remarkable–parties file briefs in support of the party’s candidates. And the RNC brief is filled with references about the important associational interests of the party at stake if a candidate is kept off the ballot. These outfits also has requested to participate in the Colorado litigation as amicus (no briefs filed yet, just the request, which I assume will include an argument similar to the one in Minnesota).
But it made me go back and check the RNC’s behavior in other recent cases where primary (and occasionally general) election presidential candidates faced significant litigation. As far as I can tell (and someone can correct me if I’m wrong), the RNC never got involved as intervenor or amicus. In 2008, when John McCain faced a flurry of challenges over whether he was a “natural born citizen,” the RNC didn’t formally participate in the litigation (except in the occasional case where the RNC was named a defendant alongside McCain). In 2012, when Rick Perry and a bevy of other Republican primary candidates failed to appear on the Virginia primary ballot and sued, the RNC likewise didn’t file any briefs in the case. The candidates lost on laches–so the candidates didn’t appear on the ballot, and the associational consequences were grave. And in 2016, when Ted Cruz faced a blitz of challenges over whether he was a “natural born citizen,” the RNC likewise didn’t participate. Cruz had to field the challenges on his own.
In fact, and relatedly, the RNC did not appear to participate in litigation when Trump faced a ballot access challenge in Minnesota in 2016, where the Republican Party of Minnesota needed to step in and defend the last-second addition of the Republican ticket on the state ballot.
Again, I might be missing a brief somewhere, and I’ll happily correct if so. But it struck me as a pretty significant change of behavior. Usually, the RNC has let the candidates fend for themselves in these matters, perhaps in some effort to appear neutral and particularly in the primaries–until this case.
Now, there are many reasons for such a change.
One is, of course, money. The massive cash infusions to political parties earmarked for election litigation may well mean there’s simply more money to spend on stuff like this.
Another is likelihood of success and severity. The party may well have viewed the threats to McCain and Cruz as insubstantial and opted not to spend resources. Perry, of course, faced a very serious consequence, but perhaps the party viewed involving itself in litigation as unfairly assisting a candidate (or viewed Perry as an insignificant candidate). But then that raises the question about whether it’s unfairly assisting a candidate at the expense of the rest of the Republican field. (And some of the challenges to McCain continued into the general election season, when the RNC’s interests would havebeen at their height.)
A third reason might be an overall change in strategy, a new desire to protect “serious” candidates more generally and intervening in litigation to protect their ballot access. (If Nikki Haley faces any “natural born citizen” challenges this cycle, for instance, one would expect the RNC would intervene.)
But a fourth reason is a narrower version of this third reason fed by the second–some sense that the RNC views it as uniquely important to protect Trump’s candidacy, when it has not protected other candidacies in recent years. (And it’s an interesting wrinkle to see the NRSC and NRCC get involved, when no congressional candidates are at issue here, only more abstract associational interests–and, as the NRCC did not get involved in Section 3 challenges to Madison Cawthorn or Marjorie Taylor Greene in the 2022 cycle.)
I can only speculate as to whether these, or other, circumstances resulted in the change of approach. But it’s certainly a break from the recent past in these cases. And it offers litigation assistance to Trump who, as a candidate, would be spending more of his campaign’s resources in the litigation, as candidates like McCain, Perry, and Cruz had to do in the past. That is, in a sense, a material advantage the RNC is providing to Trump that serves to help him–and help that comes at the expense of other challengers like Haley and Ron DeSantis, who face a Trump candidacy with cash advantages backed by the RNC.
Again, there are many possible reasons for the changes, and perhaps I’m missing some formal RNC involvement in past litigation, but it did make me take note about a change in approach.