Misrule of Law

“Bona fide” status is a malleable standard frequently manipulated by establishment moderates—or RINOs–to exclude grassroots conservatives.

A slightly abridged version of this essay first appeared in The Blaze (edited by my friend Ben Boychuk) on October 6, 2023 as “‘The Swamp’ is everywhere–even in Republican Tennessee” (here). Thanks to Instapundit (here), Tennessee Conservative News (here and here), The Pamphleteer, and Mill Creek View Tennessee Podcast (here)!

Conservatives are flocking to Tennessee as political refugees from blue states. The Tennessee Republican Party (TRP) should be embracing these new voters with gusto, but instead treats them like pariahs. Political parties exist to serve voters, not vice versa. So why does the TRP, in one of the nation’s most conservative states, restrict participation in internal governance of the TRP and Tennessee’s 95 county GOP organizations, and eligibility to run as a Republican candidate, to an infinitesimal percentage of the nearly two million Tennessee patriots who identify as Republican?

This is not an idle question, because just last month the TRP amended its bylaws (for the third time in five years) to make the already-strict definition of “bona fide Republican”—the standard for intraparty participation and eligibility to appear on the GOP ballot—even more stringent.

Like the membership committee of an exclusive country club, the TRP gives the nod to an elite few, while turning away the overwhelming majority of grassroots Republican voters. By some estimates, only three percent of self-identifying Republicans qualified as “bona fide” under the prior bylaws, which have now become in some respects even more exclusionary. Erecting barriers to participation is directly contrary to the bylaws’ stated goal of “broadening the base” of the Republican Party. One would think that the TRP would desire to harness the conservative energy of Tennessee’s grassroots, who voted by a margin of nearly 61 percent for President Trump in both 2016 and 2020. What gives?

As a lifelong Republican and conservative activist whose write-in election to the TRP’s governing body (the State Executive Committee) in 2022 was nullified by party apparatchiks on spurious grounds, after the results were certified by Tennessee’s Secretary of State, I can speak from personal experience.  Part of the explanation for “bona fide” status lies in the fact that Tennessee is an “open primary” state, but the real story is deeper and more complicated—sordid, even.

In many states, voters register by political party, and primary elections are conducted on a partisan basis: only registered Democrats vote in the Democratic primary, only registered Republicans vote in the Republican primary, and so forth. For inexplicable reasons, Tennessee is different. Voters in the Volunteer State do not register by political party, so there is no “official” record of party affiliation. All voters can vote in either party’s primary, even though Republican voters dominate in most parts of the state.

The predictable consequence of open primaries is that Democrats residing in majority-Republican districts often “cross-over” to vote for the most moderate GOP candidate in contested Republican primaries, diluting the electoral preferences of the conservative grassroots and not coincidentally sometimes giving a margin of victory to moderate “establishment” candidates. Open primaries reduce the influence of conservative Republican voters, and–perhaps for that reason–the GOP leadership in Tennessee opposes efforts to close the primaries.

Because there is no “official” designation of voters’ party affiliation, the TRP—instead of lobbying the majority-Republican General Assembly to close the primary—has developed its own standard for distinguishing between poseurs and authentic (or “bona fide”) Republicans when it comes to voting in the biennial reorganization of county GOP parties or appearing on the ballot as a Republican.  In theory, there is merit in this approach; no one wants to see Democrat activists masquerading as Republicans on Election Day, or voting to elect county GOP officers.

But the same logic suggests that the better solution would be to close the primaries, resort to registration of voters by party, and cease the current practice of giving Democrats a voice in selecting the GOP nominee by letting them vote in the Republican primary. I suggested earlier that the TRP may have an ulterior motive, which is to give establishment moderates (or RINOs) in Tennessee a stealth mechanism for selectively excluding conservatives from participating in internal GOP governance and from appearing on the ballot.

Unlike the grassroots-friendly Republican Party of Texas—a state whose electorate is less conservative than Tennessee—RINOs dominate the TRP and wish to preserve their control. Consider the TRP’s draconian definition of “bona fide Republican”—a vague and complicated formulation that gives unwarranted (and unreviewable) discretion to TRP functionaries. Courts regard the interpretation of “bona fide” status as an internal housekeeping matter with which they will not interfere.

The simplest definition of a “bona fide Republican,” assuming that Tennessee’s majority-Republican legislature unwisely retained open primaries, would be to limit participation in TRP governance and GOP candidate eligibility to persons who are registered to vote in Tennessee and who had voted in one or more GOP primaries and had not voted in Democratic primaries within a reasonable period of time, say the prior 24 months. Period. Beyond that, changes or inconsistencies in a person’s voting patterns would simply be an issue for the candidate’s opponent(s) to raise in the campaign.

The TRP bylaws take a much more convoluted approach. The prolix definition of “bona fide” status contains as much confusing verbiage as a provision in the federal tax code. The person requesting “bona fide” status has the burden of proof on all issues. That is, in Tennessee, a person is presumed to be non-bona fide until proven otherwise. So much for “broadening the base.” Oddly, “bona fide” status, once obtained, can easily be lost—even without a change in voting history—based on the failure to donate money regularly to the TRP or membership dues in a TRP-recognized auxiliary organization. This smacks of pay-to-play. The TRP candidly acknowledges that “the criteria set forth to determine if a party member is a ‘bona fide’ Republican…is not always ‘cut and dry.’” Subjective, in other words.

Pursuant to Article IX, Section 1 of the TRP bylaws, internal participation and ballot eligibility are limited to registered voters who are “actively involved” (as defined) in the TRP, the county Republican Party of their county of residence (many of which are moribund), or a TRP-recognized auxiliary organization (few such organizations exist); and who have voted in at least three of the four most recent statewide (but not county-wide) Republican primary elections. Confused? “Active involvement” is a minefield of arbitrary judgments, and the requirement of voting in “three out of the last four” GOP primaries is a trap for the unwary. Many diehard “Republican” voters, in Tennessee and elsewhere, vote in presidential primaries and the general elections, but not every GOP primary, every year.

Not all GOP activism, or Republican donations, qualify as “active involvement.” For example, giving money to the Republican National Committee doesn’t count. The bylaws state:

For purposes of this Article, “actively involved” includes, without limitation, attending TRP meetings or events; regularly attending Republican county party meetings or events; being a member of a recognized auxiliary organization for at least one year; working on the campaign of a Republican candidate for office in the most recent previous election cycle; contribution of money to the TRP, a county party, any recognized auxiliary organization, or to a Republican candidate committee with confirmation by the candidate or candidate’s campaign official; provided, however, that such activity or actions must have occurred during the time period elapsing since the most recent reorganization of the county Republican party in the county in which the individual resides. (Emphasis added.)

The bylaws erect additional hurdles by requiring Republicans relocating to Tennessee to “prove” their primary voting record in their prior state until they have satisfied the de facto three to four-year residency requirement in the Volunteer State. (Having been registered as a Republican elsewhere doesn’t suffice.) Candidates wishing to appear on the GOP ballot must pay the TRP mandatory “filing fees” of up to $5,000.

With neither transparency nor due process (my nullification “hearing” was held via Zoom call with no recorded roll call vote), each election cycle TRP apparatchiks remove numerous candidates from the state and federal primary ballot (including, in 2022, the 5th Congressional District candidate in Nashville endorsed by Donald Trump, Morgan Ortagus, and two others), bully candidates into withdrawing, or (in my case) unilaterally nullify the election after the results are certified by the state.  At the local level, countless other grassroots conservatives across the state are barred from participating in biennial county party reorganization elections on the basis of contrived, nitpicky arguments that they are not “bona fide.” The process is unfairly rigged.

The bylaws proclaim that “The TRP, in its sole discretion, reserves the right to disqualify any individual from running as a Republican candidate if it determines the individual does not meet the standards or requirements set forth in this Article IX.” Procedural protections are wholly absent. The bylaws state that neither the rules of evidence, the rules of civil procedure, nor “any other standards required in American courts of law or equity” apply to disputes involving bona fide status. Secrecy encourages backroom intrigue, and the lack of accountability enables cliques and emboldens petty score-settling.  

Party insiders familiar with the byzantine rules effectively disenfranchise grassroots conservatives who do not read the arcane and ever-shifting fine print in the bylaws. Most rank-and-file Tennessee conservatives have never seen the TRP bylaws or are even aware of their existence. The surreptitious rules are malleable enough to be manipulated to suit the ends of RINO insiders. For a party that professes to be committed to election integrity and “broadening the base,” this practice is a travesty.

Perhaps the most outrageous aspect of the TRP’s recent bylaws amendments is the addition of a ten-year ban from seeking the GOP nomination for any public office in Tennessee for any “individual who has brought legal action against the TRP or any county Republican Party,” an obvious threat of retaliation inspired by 5^th Congressional District candidate Robby Starbuck, a conservative refugee from California who, when removed from the GOP primary ballot in 2022, filed a lawsuit challenging the legality of the removal and litigated the case unsuccessfully to the Tennessee Supreme Court. Only at the TRP is seeking judicial redress subject to punishment.  

These measures deliberately tilt the playing field in favor of RINO insiders and incumbent elected officials who use county parties as their personal fiefdoms. Emasculating the grassroots limits competition by conservative candidates and hinders the development of effective precinct organizations that could mobilize conservatives at the local level.  The “bona fide” definition and its administration border on Kafkaesque. Tennessee should repeal open primaries and dispense with the transparently self-serving project of deciding who “qualifies” as a Republican.

The current TRP bylaws are a bona fide disgrace.