State of Elections

William & Mary Law School | Election Law Society

SC: Loyalty Oaths

The idea of swearing or singing an oath pledging loyalty and allegiance to a person, a place, or even an ideal may seem like a vestige of a bygone era where cold war tensions were high and the threat to the American way of life was constantly under attack, even in our own homes. However, loyalty oaths are still commonplace in the bustling, fast paced world in which we live.  Many loyalty oaths are only required of certain elected officials and government employees so it easy to overlook how prevalent loyalty oaths are and the important role they play both in a historical context and today.

Historically, loyalty oath requirements have been invoked during times when the nation was confronted by external forces perceived to be a threat to national security by the government. During the Cold War era loyalty oaths became common in American culture with as many as 42 states and more than 2000 local jurisdictions passing laws requiring loyalty oaths to be taken by public officials and employees before they were allowed to take office or begin work.  Many of the loyalty oath requirements passed during these uncertain times have since been struck down by the courts as Due Process and 1st Amendment violations.

While some statutes requiring loyalty oaths for public employees have been struck down for being too broad or unduly vague, the Supreme Court has held that loyalty oaths for government employees to be constitutional if they meet certain requirements and do not infringe on the employee’s 1st Amendment rights.  An example of loyalty oaths that have survived are those required from polling place managers and clerks appointed by the county board of voter registration and elections to conduct elections in South Carolina.  The required oath, prescribed by Section 26 of Article III of the State Constitution, is an affirmation that the signatory is qualified for the position appointed and that he or she will preserve, protect and defend the Constitution of South Carolina and of the United States. The oath must then be immediately filed with the clerk of court of common pleas of the county in which the managers and clerks are appointed.  Before opening the polls on Election Day, the poll managers must take and sign an additional oath.  With the signing of the second oath, the poll manager swears to conduct the election according to State law; not allow any person to vote who is not entitled by law to vote in the election; and not to advise any voter as to how he or she should vote in the election.  The South Carolina loyalty oaths survive because the legislative aim of requiring the oath is not to create specific obligations, but to insure that those in positions of responsibility as vital as operating polling places commit themselves to the constitutional processes of our system.

Loyalty oaths have once again come under fire in the media attempting to “expos[e] the absurdity” of loyalty oaths as outdated remnants of the Red Scare.  What was not taken into account was that loyalty oaths have been used in America from the very beginning of the nation.  The loyalty oaths that were born out of fear and mistrust of an unseen, and in some cases imagined, adversary have been invalidated over the years as political climates change. But as long as the statute requiring the loyalty oath is narrowly focused to achieve a legitimate government objective that does not infringe on a person’s constitutional rights, then the statute will be held to be constitutional and the long-standing tradition of swearing oaths of loyalty will continue in America.

Friedrich died in the night, his hop over to here body writhing with convulsions.
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1 Comment

  1. Interesting, I hadn’t realized that most loyalty oaths arose during the Red Scare. I had assumed they had been there much longer than that.

    *Signing

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