Facts of the case

In 1994, the Republican Party of Virginia held a state convention to nominate the Republican candidate for United States Senator.  A local political committee could certify any voter as a delegate to the convention by paying a registration fee of $35 or $45.  Fortis Morse, Kenneth Curtis Bartholomew, and Kimberly J. Enderson, registered voters in Virginia willing to declare their intent to support the Party's nominee, were eligible to participate.  Bartholomew and Enderson refused to pay the fee and did not become delegates.  Morse paid the fee with funds advanced by supporters of the eventual nominee.  Moore and others then filed a complaint seeking an injunction preventing the Party from imposing the fee, alleging that that the imposition of the fee violated sections 5 and 10 of the Voting Rights Act of 1965.  Ultimately, the District Court dismissed the claims. 

Question

Does section 5 of the Voting Rights Act of 1965 require preclearance of the Republican Party of Virginia's decision to exact a fee to nominate the party's candidate for senator?  Are voters permitted to challenge the fee as a poll tax prohibited by section 10? 

Media for Morse v. Republican Party of Virginia

Audio Transcription for Oral Argument - October 02, 1995 in Morse v. Republican Party of Virginia

John Paul Stevens:

We will now hear argument in Number 94 203, Morse v. The Republican Party of Virginia. 

You may proceed. 

Pamela S. Karlan:

Thank you. 

Justice Stevens, and may it please the Court--

This case presents the question whether section 5 of the Voting Rights Act requires a preclearing method of nominating candidates for the United States Senate that restricts the right to vote to persons who give 45. 

Under the facts of this case, if you don't pay 45, you have absolutely no say in how the Republican nominee for Senate in Virginia is selected. 

Section 5 requires the preclearance of all voting standards, practices or procedures, or prerequisites to voting, no matter how small the change, and was enacted to keep States and political parties from denying the recently won gains in registration under the Voting Rights Act. 

In Presley v. Etowah County Commission, this Court reaffirmed the broad scope of section 5, and identified once again a series of categories or typologies of case which require preclearance, and under the facts alleged in our complaint, this case falls within two of those typologies. 

Sandra Day O'Connor:

Ms. Karlan, may I inquire, your brief suggests possibly three different theories of why section 5 might have been violated, and the first is that the 45 fee affects the process of selecting the nominee, and the second is that being a delegate to the convention is an elective party office, and third is the threat that the change from a primary election to a nominating convention required preclearance. 

Now, were either of those last two theories contained in the complaint, and were they raised below? 

Are they actually here, or do we just look at the 45 fee question? 

Pamela S. Karlan:

Well, Your Honor, they were properly presented below. 

As Your Honor knows, this case came up on an expedited schedule with no discovery permitted to the plaintiffs. 

The result was that we found out when we received the affidavit of David Johnson contained in the Joint Appendix that the Republican Party had switched from a primary to a convention, and that this fee effective... this fee would only be possible were that change in there. 

We then raised that issue at oral arguments--

Sandra Day O'Connor:

The change from a primary to a convention, was that... it was not part of your complaint? 

Pamela S. Karlan:

--No, Your Honor, it was not part of our complaint. 

Sandra Day O'Connor:

You talked about it. 

Pamela S. Karlan:

That's correct. 

Under our complaint, the facts of which must be taken as true for these purposes, we alleged that this was in effect a primary election itself, because as we alleged, and the district court assumed, anyone who pays 45 is entitled to go and cast a vote for a nominee. 

Sandra Day O'Connor:

Well, the court below did not deal with those... with the second and third so called theories? 

Pamela S. Karlan:

No, Your Honor, it did. 

It held that nothing connected with the convention required preclearance, not the imposition of a fee, not the rules governing who could attend, and not the decision under section--

Sandra Day O'Connor:

But do you think it dealt with the issue of whether the change itself from a primary to a convention required preclearance? 

Pamela S. Karlan:

--It said, Your Honor, that nothing connected with the convention, including implicitly the decision to hold one, is covered--

Sandra Day O'Connor:

And certainly not expressly. 

It didn't expressly deal with that, did it? 

Pamela S. Karlan:

--No, Your Honor, but under Federal Rule of Civil Procedure 15, we were entitled to conform the pleadings to the proof, and had this case not been done in the expedited manner in which it was done, we could have amended the complaint. 

Now, under Rule 15, the failure to amend the complaint need not keep the Court from reaching that issue. 

If this Court concludes that that's the central question, and that that issue wasn't sufficiently developed, then the proper response from the Court would be to reverse the judgment of the district court granting the motion to dismiss, and remand for further proceedings in which that issue can be expressly litigated.