Ruling could change the landscape of Va. primaries

By Warren Fiske
The Virginian-Pilot

RICHMOND

Virginia’s longtime law requiring Democratic and Republican primary elections to be open to all voters was partially struck down Monday by a federal appeals court.

A political party has the right to restrict voting to its members when an incumbent has chosen a primary to secure nomination for another term, a two-judge panel of the 4th U.S. Circuit Court of Appeals ruled.

The decision may bring a significant change to Virginia’s election system. Republicans for years have complained that Virginia’s open primary law could taint their nominations by allowing Democrats to vote.

Chesterfield County Republicans began the case after state Sen. Steve Martin, a Republican, said he wanted to be nominated in a primary election .

Under state law, an incumbent has the right to decide whether he wants to seek his party’s nomination through a primary, a convention or a caucus.

The Chesterfield Republicans successfully argued that Martin’s decision forced them to hold an open primary – and that having to admit Democrats to the polls would violate their rights to freedom of association .

The judges, however, rejected an argument that open primaries are unconstitutional in all circumstances.

They noted that political parties decide the method of nomination in races with no incumbents. Each party can control who participates – its right to free association – if it chooses to hold a convention or caucus.

But if the party chooses to hold a primary, then participation must be open to all Virginians, the judges said.

Larry Sabato, a political scientist at the University of Virginia, said crossover voting in primaries is more myth than reality. He said studies have shown only about 2 percent of Democrats vote in Republican contests and vice versa.

There are exceptions, however. Sabato said there was significant Democratic participation in a 1996 Republican primary in which U.S. Sen. John Warner defeated James Miller III, a former federal budget chief. Many conservative Republicans were disenchanted with Warner, who had refused to support several state GOP candidates .

Sabato said the decision, if upheld, could hurt moderate Republicans. He said it could force the moderates to participate in party-only primaries or in-house nominations that are usually dominated by conservative activists.

State Sen. Ken Cuccinelli, R-Fairfax, argued the case for the Henrico Republicans. “We didn’t get everything we wanted from the ruling, but we got a good chunk of it,” he said.

Attorney General Bob McDonnell, whose office argued in support of the state law, has not decided if he will appeal to the U.S. Supreme Court, said David Clementson, a spokesman for McDonnell.

The Associated Press contributed to this report.