by JUSTIN ALEXANDER || On September 7, 2019, the South Carolina Republican Party Executive Committee voted to cancel the state’s 2020 Presidential primary. What were the reasons behind this decision? Why was it so controversial? How does it impact the presidential election? What are the legal ramifications? And what will happen in response?
This piece provides background and perspective on these questions – and others related to the party’s decision.
THE SITUATION …
The Republican incumbent, President Donald Trump, is undeniably popular among GOP voters – especially in South Carolina. There is no serious question as to whether he will be nominated again – just as many elections or nominations are foregone conclusions.
THE CHALLENGERS …
So far, there are three nationally known challengers to Trump. There’s former Massachusetts governor Bill Weld. He is social moderate, who most recently ran for vice president on the Libertarian ticket. He garnered 4.5 million votes. Then there’s former one-term U.S. representative, Joe Walsh. He is the least known of the challengers. Walsh came in on a Tea Party message and quickly lost his seat. Then there’s former South Carolina governor and representative Mark Sanford. He being the most well-known of the challengers. A deficit hawk, Sanford says he’s running to generate a national conversation about the exploding debt. Sanford has met a chilly reception, due to both Trump’s popularity and his own failures.
THE RULES …
SCGOP Rule 11(b) states: (1) Unless 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 on a date selected by the Chairman of the party (emphasis added).
The State Convention is a body representing the entire state with several members from each county, depending upon population, and is usually comprised of several hundred people. The State Convention usually meets every other year. They also met a few months ago in Columbia. It is undisputed that, at the last State Convention, no such vote or decision took place.
THE SCGOP EXECUTIVE COMMITTEE ACTION …
The State Executive Committee (EC) is made of one member from each county. Generally, this is a group that is supposed to set policy for the SCGOP, and that policy is to be executed by the State Chairman and professional staff. In practice, the State Executive Committee generally takes its cues from the State Chairman (Drew McKissick). For several months, the State Chairman had been questioning whether South Carolina would hold the primary its own rules require.
On Saturday, September 7th, the State Executive Committee gathered at their quarterly meeting. They went into executive session where only the members, the Chairman, and staff (and possibly attorneys for the party) were allowed. The issue of the primary was discussed for about an hour. EC members have stated that the pros and cons of cancelling the primary were discussed. They also said that “all issues were considered.” Because executive session is confidential, we don’t know exactly what positions were advocated by whom or what legal opinions, if any, were offered by attorneys for the party. The EC then left executive session and voted, almost unanimously, to cancel the primary.
WHY THE PRIMARY WAS CANCELED …
Only the individual members of the EC can say why they voted the way that they did, what facts they were presented with, and what arguments they heard. Chairman McKissick stated, “As a general rule, when either party has an incumbent President in the White House, there’s no rationale to hold a primary, just as South Carolina Republicans did not hold one in 1984 or 2004, and Democrats did not in 1996 and 2012. With no legitimate primary challenger and President Trump’s record of results, the decision was made to save South Carolina taxpayers over $1.2 million and forgo an unnecessary primary.”
Saving South Carolina taxpayers is an admirable goal. This argument would carry more weight if the Republicans didn’t control all reins of government and preside, year after year, over increasing budgets, corporate giveaways, and pork projects. While there’s no serious question that Trump would win the South Carolina primary, cancelling the primary eliminates the embarrassing possibility of anything less than a landslide. More practically, it frees Trump’s dollars and staff for other states.
THE SCGOP CHAIRMAN’S JUSTIFICATION …
There is no factual dispute over what the rules say – that a primary “shall” be held unless the state convention votes otherwise. There is no factual dispute that this did not happen. So how does Chairman and most of the State Executive Committee justify this? They have two primary arguments: The first argument is that no Republican primary was held in South Carolina in 1984 when Ronald Reagan was running for a second term, or in 2004 when George W. Bush sought reelection.
Bush faced primary opposition from a t-shirt designer – a bit different than a former governor or representative. What the SCGOP rules were in 1984 (I was busy watching He-Man) or in 2004, I can’t say, but I’m told the rules were the same. Rule 2(d) states, “The proceedings of all business…not covered by these Rules or by enforceable provisions of the South Carolina election law, shall conform to the most recent edition of Robert’s Rules of Order, Newly Revised.
What does Robert’s Rules tell us about precedent? That custom is important, but cannot override a clearly established written rule. The reasoning is that if the body took the time to write something into the rules, it has a purpose. Certainly, the rules can be amended, but this hasn’t happened.
The second argument is drawn from the rules themselves. Rule 2(a): “These Rules shall be interpreted and applied so as to substantially accomplish their objective … the spirit and not the letter of each Rule shall be controlling. Substantial compliance with a Rule shall be sufficient.”
This, my friends, is the crux of the matter. Can a rule that says “a primary shall occur unless the state convention votes to cancel,” be interpreted and applied to mean just the opposite? To negate the rule that it “shall” occur is in no way keeping letter or spirit of the rule. Again, there is no dispute what the rule says. There is no dispute that this vote didn’t occur. To argue that cancelling the primary without such a vote substantially complies with the requirement to hold a primary is the type of doublethink conservatives decry.
This is the same thinking that allows judges to abuse the Constitution’s Necessary and Proper Clause, or the Interstate Commerce Clause. If this very clear, explicit rule can be ignored, then any rule can be ignored. And if any rule can be ignored, well, there’s no telling what the party can do. If the money you’ve paid to attend the convention and the work you’ve put into committees can be ignored, then so can all you’ve worked for.
WHAT SHOULDN’T MATTER …
This move, likely, benefits Trump. That’s clearly the intent of cancelling the primary. For those who care about rules, this shouldn’t matter. That this benefits a particular candidate, or hurts another, shouldn’t come into play. I, for instance, can’t imagine voting for any of the challengers. But I still oppose this decision for the reasons stated below.
WHAT DOES MATTER …
There are at least four reasons it matters. From least to most significant, the absence of a primary may hurt the President. There will be some who, having been denied the ability to cast a vote in the primary, will withhold it during the general election. Trump’s team will miss out on South Carolina’s early primary status as an experience building state. As I said above, this is not a good reason to support or oppose this action.
Of next importance, South Carolina’s economy gets a boost from the presidential primary. If the cancellation stands, television and radio ads won’t run, newspapers won’t carry ads that aren’t placed, and hotels and restaurants won’t get the boost that even a landslide primary would bring. The cancellation of the primary, in clear contravention of the rules, opens the SCGOP up to an expensive lawsuit by candidates, voters, or more likely, both. The last time the SCGOP faced significant legal expenses, it had to mortgage its headquarters building to the tune of $350,000.00. We don’t know if the legal expenses of defending this action were discussed by the Executive Committee, but I certainly hope plans are in place to pay for the almost inevitable lawsuits to come.
The most important reason is that the Republican Party holds itself as the party committed to following the rules. How many times have we heard that illegal immigrants should have to play by the rules? Businesses that play by the rules shouldn’t be punished. How many times have we turned on Fox News and heard someone rightly decry, “one set of rules for some, a different set for others?”
Unfortunately, this is nothing new. At state convention after state convention, we see the rules broken. There is no honest dispute about this. The state convention could have voted to cancel the primary. That was absolutely within our right. If that had been done, there would be no legal challenge because that would have been following the rules. But that didn’t happen. Establishing a precedent that inconvenient rules can simply be ignored is corrosive to our party and to its future.
If the cancelation is not challenged, South Carolina will still send delegates to the Republican National Convention. Since there was no primary, these delegates would likely be unbound and able to vote for whoever they want at the Convention. Practically speaking, this will almost certainly be Donald
Trump, but since there is no primary, this can’t be assured.
More likely, one or more of the challengers and possibly voters will file a lawsuit challenging the cancelation. The SCGOP will spend a small fortune on legal fees to defend their action. What will the court decide? We don’t know. But it’s going to cost. And this could all have been avoided, if they had followed the rules.
ABOUT THE AUTHOR …
Justin Alexander is a conservative activist from the South Carolina Upstate.
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