In our new Washington Post column, Paul Goldman and I take a look at the issue of a proposed Republican loyalty oath. We find it not only obnoxious, but constitutionally suspect:
…nowhere is the party given the right to require a candidate to support whomever the national convention nominates as a condition to being allowed to run in Virginia’s primary. State law sets out specific requirements for ballot access, including the submission of a signed, notarized document in which Trump, for example, agrees to forfeit his right to later run in Virginia as an independent or minor-party candidate should he lose the Republican presidential nomination.
Yet even if state law did give the party the right to limit ballot access through a “loyalty oath,” the “dump Trump” rule would violate the Constitution. Morse and other cases make clear any such rule would have to pass muster under the First Amendment as applied to state actors through the 14th Amendment. It can’t. The proposed pledge goes much farther than mere “intention.” It also takes away the political rights of those who want to join together to get Trump on the ballot and then cast their ballots for him.
The band of establishment types who are pushing this idea — which, amusingly enough, includes former gubernatorial candidate Ken Cuccinelli — could still ask the RNC to act. The national party could refuse to seat or allow any Trump delegates to vote at the convention. That would make the spats between the Ron Paul supporters and Mitt Romney’s backers at the 2012 convention look positively tame. But it would not raise constitutional issues.
But the larger, political problem is that threatening to split the party’s base — in the name of unity — is a recipe for handing Virginia’s 13 electoral votes to the eventual Democratic nominee. Not a good plan.
