THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, October 28, 1995 TAG: 9510280028
SECTION: FRONT PAGE: A12 EDITION: FINAL
TYPE: Editorial
LENGTH: Medium: 54 lines
Sen. John Warner is probably Virginia's most popular politician. But not with members of the more fervid wing of his own party. He earned their enmity by opposing the candidacies of Oliver North and Mike Farris.
Some party leaders want to return the favor by denying Warner renomination and re-election. Standing in the way is Virginia's oddball election law. It gives incumbent candidates for the General Assembly the right to choose how nominees for their office are picked. Candidates for other offices, including U.S. senator, are to be chosen by primary. But incumbents who were last chosen by primary can elect a different method.
Warner wants a primary and the law gives him the choice. His foes want to force Warner to submit to a nominating convention where his popularity with the general public will availeth him not.
To force Warner to a convention, his opponents have either got to show the law to be unconstitutional or change it. The legal and political maneuvering will play itself out, but the dispute invites a closer look at the existing law.
Most states let parties pick the nominating method. A growing number of states mandate primaries. Virginia is virtually alone in letting incumbents decide how they will be renominated. That stacks the election deck in favor of incumbents. Virginia attorneys general have candidly admitted - in cases from 1973 and 1986 - that incumbent protection was just what the General Assembly set out to achieve.
Some partisans argue that parties ought to be free to create their own rules under the rubric of constitutionally protected free association. But it isn't that simple. Under the U.S. Constitution, states have the job of regulating the nomination and election of candidates.
Courts have repeatedly held that if parties take on those duties, they are subject to state regulation. In a 1992 case, a U.S. Court of Appeals ruled that a state could insist on primary elections because removing the nominating process from the control of party machines is a more compelling interest than protecting the right to freely associate.
At minimum, the Virginia statute should be changed to prevent incumbents from controlling nominations. The political process ought to be open to challengers, not tilted to favor those already in power.
The existing law provides for primaries - at least for statewide offices. The method has merit. A referendum should ask Virginians whether they prefer primaries for the nominating process with voters registered as Republicans, Democrats or Independents (the latter permitted to vote in one party's primary only). The choice of candidates would then be made by the people who vote and not by a closed circle of insiders. by CNB