So, there’s a bill in the Florida rubber-stamp legislature, SB 1245, which would decertify any party that previously endorsed slavery. It was filed, obviously, by State Senator and former Florida Republican Party chair Blaise Ingoglia in response to liberal campaigns against Confederate statues. 

In such a situation, what would be the options for liberals who live in such a state which decertifies an entire political party?

• The judicial route:
  • They could sue on 1st Amendment freedom of speech, freedom of association, and anti-ex-post-facto grounds. 
  • They could sue on the grounds that the law, as currently written, is too nebulous to be enforceable. 
• They could establish a new political party under another name, as the bill suggests. Plenty of bureaucratic headache if that were to take place. 

The bill is poorly written, IMO. I mean, define this: “if the party’s platform has previously advocated for, or been in support of, slavery or involuntary servitude.”

A more serious (but still ill-fated) attempt would have the following:

• specify the dates when these platforms were published
• Be limited to Florida’s jurisdiction
• Provide the details for how an offending party *corporately* endorsed these platforms (not just individual candidates for office under that party’s brand)

It’s also telling that the bill only extends to “slavery or involuntary servitude”. It does not mention, for example, the violent voter suppression campaign (also known as “Redemption”) to drive Reconstruction-era Republicans from office and cement one-party rule. It does not mention the poll taxes passed by said party, nor the intense apartheid restrictions placed upon the daily lives of Black residents by said party. All of the above would apply to the Democratic Party, of course, but why does slavery alone receive this mention in the bill?

It also begs the question of whether state governments have the power to regulate the names of political parties. California came close to attempting to regulate whether parties can use the name “independent” before Gov. Newsom vetoed said bill in October 2019, arguing that it was unconstitutional. If he had signed the bill, the far-right American Independent Party of California could have sued in federal court on aforementioned 1st Amendment grounds, and would likely have won. Furthermore, as noted by Richard Winger of Ballot Access News, “The bill violates the First Amendment. Communist Party of Indiana v Whitcomb, a unanimous decision from the US Supreme Court in 1974, said states can’t keep parties off the ballot based on the ideas of those parties. So even if the Democratic Party still supported slavery, the bill would be struck down if it passed.”

To play devil’s advocate, there may be at least one back-door way for state governments to regulate or influence party names in a way that avoids constitutional scrutiny regarding speech and viewpoint discrimination. 

• They could force annual recertification of political parties and repeatedly delay recertification without an official explanation, or even declare a sort of “at-will” decertification of political parties. 
• They could also publicly distribute a set of officially-unenforceable “best practices” for party names which would pressure political parties to conform. 
• Republicans could repeatedly jack up the filing fee, petition and party registration threshold by county (or worse) to block new parties from certification

OTOH, if the Federalist Society would rather overturn the Communist Party of Indiana case in order to strangle the First Amendment and support regional one-party rule, Republicans could use this newfound power to add further proscriptions against new political parties, such as “no party shall exist which holds views contrary to state law as written at this date”. They could also expand the definition of “slavery” to include anything that social conservatives hate and demonize, such as welfare and abortion (and they repeatedly “Godwin” themselves with this as it is). 

In a time when social conservatives are dumping their alliance with right-wing libertarians and their sensibilities in the name of power and control, liberal minorities in red states must be prepared for how far their state governments will go to undermine their ability to politically organize.