By: Trevor Bernardo

GOP state committees in South Carolina, Kansas, Alaska, Arizona, and Nevada have all cancelled their primary or caucus elections for the 2020 presidential election.  The Minnesota GOP also recently announced that Trump would be the only Republican candidate on its primary ballot.  How can state parties avoid holding a primary election, even if only to confirm or re-nominate an incumbent, that will ultimately determine who will be on the general election ballot, and pledge electors to vote in the Electoral College?

While this may, at first blush seem to be unlawful, the practice is fairly routine.  In 2012, 2004, 1996, 1992, and 1984, Republican and Democrat state parties in South Carolina, Arizona and Kansas, all cancelled their respective primaries or caucuses.  Typically, these cancellations have occurred by the party with an incumbent running for reelection and state parties have cited two related reasons for the cancellation: (1) avoiding administrative costs, and (2) inevitable election outcomes.

On September 7th, the South Carolina GOP Executive Committee (“SCGOP”) voted 43-1 to cancel their 2020 primary election.  On October 1st, Robert Inglis, a former GOP Congressman representing South Carolina, and Frank Heindel, a SCGOP donor, sued the South Carolina Republican Party and Drew McKissick, the SCGOP chairman, in state court (Inglis v. South Carolina Republican Party).  In their complaint, the plaintiffs do not claim that the SCGOP lacks the authority to change its method of pledging electors from a primary to a convention vote, but rather, they protest the way in which the SCGOP changed its method.

According to the plaintiffs, § 7-11-20 of the South Carolina Code and Article I § 3 of the South Carolina Constitution “compels political parties to follow their own rules before depriving members of the right to vote in a primary election.”   In particular, the plaintiffs point to SCGOP Rule 11(b)(1) which says that “[u]nless decided otherwise by the state party convention within two (2) years prior to each presidential election year, the South Carolina Republican Party shall conduct a statewide presidential preference primary.”

Section 7-11-30 of the South Carolina Code provides further guidance, “[a] party may choose to change from nomination of candidates by primary to a method to nominate candidates by convention . . . if: (1) there is a three-fourths vote of the total membership of the convention to use the convention nomination process; and (2) a majority of voters in that party’s next primary election approve the use of the convention nomination process.”

In a hearing, the SCGOP argued that voters do not have the absolute right to vote in presidential preference primaries, only in June primaries or general elections.  The SCGOP said that the party has the authority to nominate a candidate by a convention vote, and that other candidates may lobby voters at the convention.  According to the SCGOP, this process is actually easier for other candidates because there are fewer individuals to engage with at the convention than in the primary electorate.  The SCGOP said that they complied with applicable laws because the two-year requirement in their rules only applies when the party chooses to have a primary in the first place and the party, by not holding a primary, did not do so.

The case will ultimately be decided based upon the court’s interpretation of South Carolina state and GOP party laws, and both parties make compelling arguments.  After filing the complaint, Inglis and Heindel were joined by Protect Democracy, a DC-based nonpartisan non-profit.  In addition to claimed violations of state law and party rules, Inglis and Heindel have also moved for injunctive relief to compel the party to hold a primary election.

The case is currently pending a decision from the court on the SCGOP’s motion to dismiss.  While we will have to wait to see what the court decides in this case, what is clear is that state parties are not required to hold primary or caucus elections.  Further, state parties may cancel a primary election in favor of a convention vote, as long as they follow applicable state and party rules.  After all, the US Constitution assigns broad powers to the states, and by proxy to state parties, to determine the best way to appoint their electors.

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