As lawyers gathered in a Columbia courtroom Friday morning to argue over the cancellation of the state’s Republican primary, one question was hotly contested: Do voters have the right to vote in a presidential preference primary?
The question is the crux of a lawsuit brought on by former Republican Congressman Bob Inglis and Mount Pleasant businessman Frank Heindel, who claim the S.C. GOP injured them by denying them their right to vote in the upcoming 2020 presidential primary. That injury is the basis for the pair’s lawsuit against the S.C. Republican Party.
But lawyers representing the state Republican Party and its chairman Drew McKissick argued that if the party’s executive party opts out of the contest, then voters across the state do not have the right to cast a ballot.
“If we’re talking about a June primary or a general election ... absolutely, the right to vote is sacrosanct,” GOP attorney Butch Bowers argued. “Here, we have a (presidential preference primary). ...If a party decides they want to nominate by convention, they can do so. And if they do so, that means that (voters) don’t have the right to vote.”
Bowers and his colleague Robert Tyson, Jr., argued that voters have other ways to participate in the selection of Republican National Convention delegates, such as participating in county and precinct conventions to choose the delegates who ultimately get to attend the national party convention where a nominee is selected.
Voters can also “lobby” national convention delegates to cast a vote for their preferred candidate, Tyson maintained. He added that it would be easier to sway a group of 50 delegates than the more than 800,000 voters who participate in primaries.
Traditionally, delegates would be bound to a candidate chosen by voters for the first round of voting at the national convention. But without a primary, delegates would no longer be bound by that obligation.
“They would have to go around and try to sway those 800,000 people to go for one candidate or another,” Bowers said. “We made it easier. We made it a heck of a lot easier.”
Bess Durant, who represented Inglis and Heindel, argued that lobbying was not similar or even the equivalent to voting in a primary.
“I don’t see how that can be in the same category or even the realm of the right to vote,” DuRant said. “That is a fundamentally protected right and is not the same as lobbying those in power.”
College of Charleston political scientist Gibbs Knotts said when it comes to deciding who delegates vote for, there’s “no reason it has to be a primary,” but that holding the contest appears “most democratic.”
If parties chose to use a convention tactic to assign delegates, they may end up with a candidate who is favored by party officials, but not by voters, which would spell trouble during the general election, Knotts said. It can also cause voters to feel like the decision was made by party elite, he added.
This likely would not be the case in South Carolina, as Trump still enjoys wide support from Palmetto State Republicans, according to polls.
On the other hand, a convention can be used by party leaders to debate the merits of each candidate, leading to a stronger choice, Knotts added.
The right to vote was one of several arguments made before Judge Jocelyn Newman Friday morning, where the state Republican party was represented by Tyson, Bowers, Lisle Traywick and Robert Bolchoz, and the plaintiffs employed attorneys Biff Sowell, Cameron Kistler and DuRant.
DuRant kicked off the plaintiffs’ arguments saying the S.C. GOP violated state law and its own rules by voting not to hold the presidential preference primary.
“This is not fair and this is not proper,” DuRant said.
Specifically, DuRant argued that party rules require officials to begin the process of canceling the primary two years before the actual contest. Since the party did not do that, DuRant said, it is bound by a portion of a law that states that parties wishing to hold a convention rather than a primary must obtain support from three-fourths of the attendees of its convention and from the majority of voters in that primary.
“When you look at the applicable statutes and the party’s own rules … it’s clear that the party had two options,” DuRant said. “It didn’t jump through either of those hoops. It didn’t take any steps to jump through those hoops.”
Lawyers for the GOP countered that state law — which focuses on changing from presidential primary to convention nomination — only applied if the party were to decide to participate in the primary.
“We believe we’ve complied with the statute,” Tyson said.
On Sept. 7, members of the South Carolina Republican Party’s executive committee voted 43-1 to scrap its presidential preference primary. After the vote, party chairman McKissick maintained that both parties have canceled primaries in the past when an incumbent is running for reelection.
While that is true, in 1992, the S.C. GOP held a primary as President George H. W. Bush sought reelection, running against conservative commentator Pat Buchanan and former Ku Klux Klan leader David Duke.
Judge Newman called that argument the “weakest.”
“Just because it happens doesn’t mean it’s right,” she said.
Weeks after the vote to cancel the primary, Inglis and Heindel filed their lawsuit against the party and McKissick, claiming the GOP broke both state law and party rules. Inglis and Heindel were joined by non-profit United to Protect Democracy in claiming that the state GOP’s executive committee does not have the power to cancel an election.
The group soon sought a permanent injunction, which would force the party to hold a primary and withdraw any delegate allocation plan it may have submitted to national GOP officials.
GOP leaders responded to the lawsuit and request for injunction by asking Newman to throw out the case completely. They also argued voters don’t directly choose a party’s candidate during a primary anyway. Voters still could lobby delegates to vote for their preferred candidate, the GOP’s lawyers added.
At the end of the hearing, Newman asked both parties to submit a proposed order to her within ten days, saying she understood the importance of timeliness on this issue.
If the party is ultimately ordered to hold a primary, the contest will take place Feb. 29, 2020.