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Primary, or convention? How the battle in the 24th will play out

republican-headerIf Emmett Hanger wants a primary, Emmett Hanger gets a primary. That’s how Virginia state law is written.

Backers of one of his potential Republican nomination opponents in the 24th Senate District want to change the rules to give district GOP committees the power to choose how a nominee is decided.

“The Constitution of the United States and the Virginia Code recognize the right of political parties, as private associations, to exercise very broad authority in determining the method and means of their nomination of candidates for elected office,” wrote John Wirth, of the Staunton-based law firm Nelson, McPherson, Summers and Santos, which has been retained by the 24th District Republican Legislative Committee to advocate on its position that the local committee, not Hanger, should determine the method of nomination.

Lawyers are generally good at making things sound good, but the state code on this is rather specific.

“A party shall nominate its candidate for election for a General Assembly district where there is only one incumbent of that party for the district by the method designated by that incumbent, or absent any designation by him by the method of nomination determined by the party.”




So declares §24.2-509 of the Code of Virginia, in cold, clinical language that in and of itself doesn’t take into account whether a local party committee likes or doesn’t like that an incumbent might prefer a primary over a convention.

The local GOP committee is taking sides in a brewing ugly political fight over the nomination in the 24th that will eventually involve Hanger, who has yet to formally declare his candidacy for re-election, but has indicated that he will be in the running, Marshall Pattie, a member of the Augusta County Board of Supervisors, and Dan Moxley, who had a brief tenure as Augusta County Republican Committee chair.

Pattie and Hanger will come down on the side of favoring a primary, of course with Hanger’s interests being the more important of the two, considering the guiding state code. Moxley and his backers are making the push for a convention that would narrow the playing field considerably.

Primaries in Virginia are open to all voters since Virginia does not register voters by partisan affiliation as many other states do. Meaning that a Republican primary in the 24th would be open to not just Republicans, but also independents and Democrats, and in a district where it is likely that Democrats will not field a candidate for the November 2015 election, you can expect that there would be significant crossover voter turnout in a June 2015 primary.

Hanger has enjoyed considerable support from independents and centrist Democrats, and Pattie, elected to the Board of Supervisors as an independent in 2011, is a former chair of the Augusta County Democratic Committee.

Neither would seem poised to fare well in a convention setting that would ostensibly be dominated by conservative Republicans, a point that has been driven home by Moxley supporters on local blogs and online forums, including a recent discussion thread on Augusta Free Press.

The effort to persuade the State Board of Elections to somehow intervene to force a convention is about as likely as a lottery winner being struck by lightning. That’s not to say that it hurts to try.

“An incumbent cannot require his or her party to nominate by means of an ‘open primary’ where the party desires to nominate by some other legally permissible method, such as, for example, a convention. Under such circumstances, the ‘open primary’ statute is unconstitutional,” Wirth wrote in his letter to the Board of Elections last week.

Even if the State Board were to agree, wouldn’t it be just as unconstitutional for that body, part of the executive branch, to unilaterally overturn a constitutionally-enacted state law?

Asking that question assumes that the effort to raise the issue of primary vs. convention is actually oriented toward anything other than trying to play the PR game. Agree with the law or not, it is what it is, and the two ways to change it involve either a lengthy court battle that would take years to see through to a conclusion or a political battle in a General Assembly made up of incumbents not likely to change the rules of the game that they mastered to get into the positions of authority that allow them to decide such matters.

Which brings us back to where we started. If Emmett Hanger wants a primary, Emmett Hanger gets a primary. End of story.

– Column by Chris Graham

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