Part 2: Abbott and Nelson Side with RINOS and Democrats Against Texas Republicans

Political Parties and the First Amendment Right of Assembly/Association

As we discussed yesterday, Texas Gov. Greg Abbott and his appointee Secretary and State Jane Nelson are fighting against the Republican Party of Texas’ (RPT) effort to keep Democrats from voting in Republican primaries. Nelson tried to portray their actions as upholding the rule of law, but all she really did was expose either their duplicity or ignorance.

If in fact Nelson and Abbott were interested in upholding the law—in this case Texas Republicans’ First Amendment right of freedom of assembly and association, they would have done what Texas Attorney General Ken Paxton did—ask the court to find in favor of the RPT and force Texas to allow closed primaries. Because there is little doubt that the RPT will prevail on the merit of its case.

Federal courts have consistently held that American’s First Amendment rights of association place significant limits on the states’ ability to regulate political parties. Seeking to protect rights of association, the courts “have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution” (Jones, 573).

One of those limits imposed on governments involves political parties “right to exclude.” In the case of the RPT, that would be the right to exclude Democrats. The U.S. Supreme Court makes it clear that the right to exclude involves not only who may join a political party but who the political party may nominate (Jones, 568):

In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views.

In Democratic Party v. Wisconsin, the Supreme Court held that while Wisconsin “asserted compelling interests in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters, … such asserted interests do not [always] justify the State’s substantial intrusion into the associational freedom of members of the National Party” (108).

This principle in support of parties’ freedom of association was validated in Texas as the state was heading into the 2018 midterm elections. Section 172.052(a) of the Texas Election Code prevented the Republican Party from removing candidates from its primary election ballot past a certain date. Yet the Republican Party removed Blake Farenthold’s name from the Republican primary election ballot after that date at Farenthold’s request. To defend its right to exclude Farenthold, the Republican Party of Texas filed a lawsuit against the state alleging that the provision in the Election Code was an “unnecessary abridgement of Plaintiffs’ First Amendment freedoms.”

Eventually, the Texas Secretary of State conceded that “that the party chairman … is ultimately responsible for submitting the list of candidates running in the 2018 primary election” and that he had no means of compelling the Republican Party of Texas and Farenthold to associate with each other when both the party and the candidate wished for him to withdraw from the ballot. In effect, Texas acknowledged the Republican Party of Texas’ freedom of association by allowing the party to make the change even though that action expressly violated state statute.

All of this applies directly to the RPT’s efforts to close its primaries. In a reference to Democratic Party v. Wisconsin, the Supreme Court wrote, “We held that, whatever the strength of the state interests supporting the open primary itself, they could not justify this “substantial intrusion into the associational freedom of members of the National Party” (Jones, 576).

In Jones, the Supreme Court was faced with California’s blanket primary in which the ballots of all voters contained all candidates of all parties. In this case, the Court concluded:

Respondents’ legitimate state interests and petitioners’ First Amendment rights are not inherently incompatible. To the extent they are in this case, the State of California has made them so by forcing political parties to associate with those who do not share their beliefs. And it has done this at the “crucial juncture” at which party members traditionally find their collective voice and select their spokesman.

The rulings of the Supreme Court provide ample evidence that the Texas Legislature’s mandate of open party primaries violates the Republican Party of Texas’ rights of association. Jane Nelson and Greg Abbott should acknowledge this and ask the court to overturn Texas’ forced open primary law.