Morse v. Republican Party of Va., 517 U.S. 186, 53 (1996)

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238

MORSE v. REPUBLICAN PARTY OF VA.

Breyer, J., concurring in judgment

We need not go further in determining when party activities are, in effect, substitutes for state nominating primaries because the case before us involves a nominating convention that resembles a primary about as closely as one could imagine. The convention (but for the $45 fee) was open to any voter declaring loyalty to the Republican Party of Virginia (Party), just like a primary. The Party itself had previously selected the primary method to choose its nominee (in 1990, the year of the immediately preceding United States Senate race, the Party canceled its scheduled primary when no candidate filed to oppose the incumbent, App. 24), but changed its mind in 1994 without asking the Justice Department to "preclear" the switch. And the Party chose to avail itself of special state-law preferences, in terms of ballot access and position, offered to the convention's choice. Va. Code Ann. §§ 24.2-511(A), 535, 613 (1993).

Nor need we go further to decide just which party nominating convention practices fall within the scope of the Act. There are already substantial limits as to which voting-related "practices and procedures" must be precleared. See Presley v. Etowah County Comm'n, 502 U. S. 491, 502-503 (1992) (gathering cases and setting out four preclearance categories: changes involving "the manner of voting[,] . . . candidacy requirements and qualifications[,] . . . the composition of the electorate that may vote[,] . . . [and] the creation or abolition of an elective office"). Thus, for example, the Party here states that besides nominating candidates, "other business at its conventions" includes "adoption of resolutions or platforms outlining the philosophy [of the Party]" and rules governing its internal operation. App. 24. Under Presley, these activities are very likely not subject to pre-clearance. See also 28 CFR § 51.7 (1995) (making clear that "changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance requirement").

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