A legal opinion by Attorney General Jason Miyares casts doubt on whether firehouse primaries remain a lawful method for political parties in Virginia to nominate their candidates under a new law that went into effect last month.
“A political party may not select a nomination method that de facto requires covered voters to be physically present to participate or that otherwise has the practical effect of excluding their participation,” Miyares wrote in the opinion issued Friday.
Miyares weighed in on the new legislation in response to a request by Del. Todd Gilbert, R-Shenandoah County and the House minority leader, addressing widespread concern that the decision by Lynchburg Republicans to hold a firehouse primary ahead of the upcoming city council elections might violate the law, which passed with bipartisan support in 2021 and outlines new procedures party officials must follow when running their own elections.
Sponsored by Del. Dan Helmer, D-Fairfax County, the law stipulates that all absentee voters, including those serving in the military overseas, studying in institutions of higher education, temporarily residing outside of the United States, living with a disability or suffering from a communicable disease, or who have been exposed to a communicable disease, be offered an opportunity to participate in the nomination process.
The Lynchburg Republican City Committee will meet Tuesday night to set and approve the details of the firehouse primary, for which they voted at a party meeting on Jan. 22. Committee Chair Veronica Bratton said in an interview last month that the vote was nearly unanimous, with only Vice Mayor Chris Faraldi — whose Ward IV seat will be on the ballot this year — voting against it. Faraldi said he voted against a firehouse primary because Lynchburg Republicans had not yet figured out how its firehouse primary rules will comply with the new law.
Bratton said in an email on Friday that the committee sought legal counsel at the state level before pursuing the firehouse primary option, “and were told we were able to do it.”
“We then proceeded based upon the decision we were given. We believe we have a process that will be in compliance with the law. We will be evaluating our options and if we are unable to do what we were told we could, then so be it,” Bratton said.
Updated Feb. 17: Republican Party of Virginia general counsel Chris Marston has sent an email to all unit chairs advising them that in light of Miyares’ opinion, “a state-run primary is the only way the Party can nominate candidates for public office” and that all units must notify the state Department of Elections by March 5 if they have nominating contests.
Firehouse primaries and conventions — those run by a political party instead of the state — are often favored by some as a method to keep members of other political parties from diluting the vote. Miyares wrote in his opinion that although a party can use any method available to it by law and by its party plan to select its nominees, choosing a selection process “is a political privilege subject to regulation” by the legislature.
What’s a firehouse primary?
A “firehouse primary” is the popular name for what is technically considered a “canvass.” It resembles a state-run primary in that voters can show up at a polling place during a designated time, cast their vote and leave. However, this is a process run by the party, not the state, so voting times, voting places and other rules differ.
Since Virginia does not register voters by party, state-run primaries are “open” primaries, open to all. For a firehouse primary, a party would require loyalty oaths.
“Accordingly, case law makes it clear that the rights of political parties to nominate whoever they want, however they want, is not absolute. Indeed, courts recognize that regulation of the nomination process is linked to a strong governmental interest in widening participation in the democratic process and they have upheld statutes generally favoring a primary over other nominating methods.”
Miyares also noted that the new law “forbids those nomination processes that have the practical effect of excluding covered voters from participation.” He singled out active-duty members of the uniformed services whose duty requirements can create “substantial limitations on the ability to participate (or even communicate) with a party conducting its own nomination process.”
Helmer, the new law’s sponsor, in a letter to Miyares last month expressed concern that the city’s GOP committee had not made provisions to guarantee that the firehouse primary will not violate the law, which requires political parties to make accommodations for absentee voters, including military, to avoid suppressing turnout.
Helmer said in a phone interview Friday that Miyares’ opinion confirms that the new law is constitutional and backed by precedent, and that there is “a real problem” with nomination methods like firehouse primaries, conventions and caucuses that exclude military members from participating. “For all intents and purposes he is saying that what they are doing in Lynchburg is not OK, that’s pretty clear,” Helmer said.
“It is stunning that Republicans would deny active duty military the ability to participate in this election of their nominee in contravention of Virginia law, and it’s time for them to stop. They may do it anyway, but it will be illegal.”
Lynchburg Republicans have been embroiled in infighting since the party won a 5-2 majority on the city council in 2022, with Faraldi and Martin Misjuns, a Republican city councilmember and his rival, in different camps among the two Republican factions.
Faraldi, who faces a primary challenge from Peter Alexander, said in an email Friday that his team has reviewed Miyares’ opinion. “The Lynchburg Republican City Committee is slated to discuss City Council nominations this coming Tuesday, and our campaign will issue a more robust statement once a nomination method (and associated details) has been officially established by the party,” Faraldi said.
Last year, Faraldi was one of three Republicans on the city council who joined with two Democrats to censure Misjuns for “disorderly behavior and misconduct.” In response, Misjuns recently criticized Faraldi on Facebook and posted: “2024 is going to be a great year to remove incompetent fraudsters at the ballot box.”