RICHMOND, Va. (CN) – As Republican candidates for office confront new state laws that darken their electoral chances, legal experts are questioning whether the laws can survive constitutional muster.
In California, President Donald Trump has filed suit against a new state law that requires the disclosure of tax returns to appear on the ballot. Meanwhile, in Virginia, Republican incumbent state Delegate Nick Frietas was forced to withdraw his candidacy in July after he failed to file paperwork on time. A local Republican committee renominated Frietas immediately for the seat, but the lone Republican on the three-person state Board of Elections failed to push the nomination through at a meeting Tuesday.
Paul Goldman, a Richmond-based attorney and election law expert, emphasized in an interview that, in both of these cases, the state laws are interfering in the government’s role of facilitating the ability of the American people to express their will at the voting booth.
“The right of the people to vote is paramount, core political speech,” Goldman said.
In California, Trump has made a similar case, telling a federal judge the First Amendment bars states from “passing laws to retaliate against an individual for his or her political associations or speech.”
Frietas, so far, has not filed suit, but Goldman thinks he, or more specifically his constituents, would have a solid argument. He pointed to the incumbent’s previous win with over 60% of the vote as proof the will of the people would be ignored if he’s kept off the ballot.
“There’s no question he’s the choice of the Republican Party,” Goldman said. “The state can have reasonable regulations over ballot access … but you have the voters’ associational rights.”
Frietas’ paperwork failure might seem trivial, but state law is clear on how candidates get on the ballot.
First Frietas failed to submit a required document, then the district’s Republican Party failed to file another document. Reporting from the Richmond Times-Dispatch says the state election board has voiced concern about what it will mean for the 40 other uncontested seats across the state if Frietas is allowed on the ballot after deadline.
“We’re trying to strike a balance between the important principle of access to the ballot on the one hand, and on the other hand the need to uphold deadlines that are in the code,” Bob Brink, a former Democratic delegate who chairs the Board of Elections, said Tuesday at the meeting, as quoted by the paper.
When asked for comment on the decision, the Virginia Board of Elections sent a copy of a letter addressed to Bruce Kay, legislative district chair for Frietas’ district.
“All applicable deadlines have passed and the Department is not able to accept the form,” Elections Services Manager Dave Nichols wrote in the letter.
Frietas has not returned requests for comment on Tuesday’s decision but issued a video statement via Facebook where he said he will fight on by launching a write-in campaign.
“Don’t disenfranchise Republican voters,” Frietas said. “It will be the people of the 30th District who decide who represents them.”
Brian Schoeneman, a lawyer and longtime member of the state’s GOP, agreed with Frietas that the Elections Board decision here looks partisan but was less optimistic about how the candidate’s challenge to state law will fare.
A federal judge already found Virginia’s deadlines nondiscriminatory in a 1989 case, Schoeneman noted, but he said the First Amendment argument on behalf of Frietas’ constituents was stronger.
“The Supreme Court and other federal courts have recognized that challenges to ballot access laws are more about denying voters the candidate of their choice than somehow infringing on a candidates’ rights,” Schoeneman said in an email.
Steven Farnsworth, director of the Center for Leadership and Media Studies at the University of Mary Washington, predicted that a write-in campaign will work for Frietas, given his popularity in his district, his wins in 2015 and 2017, and the money the party would be willing to spend to ensure his win.
“He’ll have to work a lot harder, and they’ll have to spend more money than they would ever want to spend, but Democratic odds of winning the seat still seem less than 50/50,” said Farnsworth in a phone interview.
Goldman meanwhile is confident in Frietas and Trump’s ability to prevail against the state laws in court. He said he’d even represent Frietas if asked.
“It’s still a state law regulating the First Amendment and that’s supposed to be viewed with caution,” he said.
But Farnsworth pushed back, noting the delegate wouldn’t be in this scenario if he and his party had followed state law like they did several times before.
“There’s an interesting argument to be made about the rule of law too,” he said.
Ballots for Virginia’s November 2019 elections are printed in September. All 140 seats of the state’s two chambers are up for grabs and Republicans, who have held both chambers for nearly 20 years, hold a slim majority in both.