913 F.3d 393
4th Cir.2019Background
- Virginia Code § 24.2-509(A) generally vests a party’s duly constituted authorities with the right to determine the method of nominating candidates (primary, convention, canvass, mass meeting, etc.).
- Subsection 24.2-509(B) (the "Incumbent Protection Act") carves out exceptions that give incumbents control over nomination method: (1) single General Assembly incumbents may designate the method; (2) multi-incumbent General Assembly districts default to primary unless incumbents consent otherwise; (3) non‑General Assembly incumbents (including U.S. House members) who were previously nominated by primary and seek reelection may insist on a primary unless incumbents consent otherwise.
- The 6th Congressional District Republican Committee sued under 42 U.S.C. § 1983 seeking to enjoin § 24.2-509(B) as facially and as‑applied violative of the First and Fourteenth Amendments; the district court permanently enjoined the statute in full.
- The Department of Elections had issued forms in 2016–17 that misapplied the statute, treating congressional incumbents like General Assembly incumbents; it later revised the forms after litigation began.
- The Fourth Circuit affirmed, holding the challenged sentences (particularly the fourth sentence relating to congressional incumbents and the second/third sentences relating to General Assembly incumbents) impose a severe burden on party associational rights and are not narrowly tailored to a compelling state interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 24.2-509(B) (fourth sentence) violates parties’ First Amendment associational rights by allowing certain incumbents to force a primary | The statute vests a single incumbent with control over the party’s nomination method, severely burdening the party’s associational right to choose how to select nominees | The statute serves legitimate state interests (e.g., democratic resolution of intraparty contests); states may regulate nomination procedures; any burden is not severe | Held unconstitutional: the fourth sentence imposes a severe associational burden and is not narrowly tailored to a compelling interest; affirmed injunction |
| Whether the second and third sentences (General Assembly incumbents’ designation powers) are challengeable and constitutional | Committee has standing and those sentences are even more offensive because they allow incumbents to impose any nomination method, severely burdening parties | Dept. argued lack of standing and mootness after form revisions; also contended injunction of whole statute was improper | Held: Committee had standing (concrete injury via Department forms); second and third sentences unconstitutional; enjoining the statute in toto was not abuse of discretion |
| Whether the statute’s delegating power to incumbents can be justified as serving a compelling state interest (e.g., promoting primaries) | Appellants claim it ensures democratic primaries when desirable | Court: delegation makes realization of the interest wholly dependent on incumbents’ self-interest, suggesting the real aim is incumbent protection | Held: incumbent‑protection rationale is not a compelling, narrowly tailored justification for the severe burden imposed |
| Whether post‑filing changes to Department forms moot the challenge | Plaintiff: changes do not moot because the harm occurred and the conduct could recur; challenge capable of repetition yet evading review | Dept.: revision moots parts of the claim because forms now comply | Held: not moot; defendant failed to show wrong cannot recur; claims justiciable |
Key Cases Cited
- Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) (prior Fourth Circuit decision addressing limits on incumbents forcing open primaries)
- Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) (standing and injury analysis for party plaintiffs in nomination‑method disputes)
- California Democratic Party v. Jones, 530 U.S. 567 (2000) (mandatory open primary law burdening party associational rights)
- Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) (state law burdening party’s associational opportunities at the candidate‑selection juncture)
- Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (lesser burdens on association warrant relaxed review)
- Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) (state regulation requiring seating of delegates chosen by primary burdening party autonomy)
- Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989) (invalidating laws dictating parties’ internal affairs)
- Burdick v. Takushi, 504 U.S. 428 (1992) (framework for assessing ballot regulation burdens)
- Clingman v. Beaver, 544 U.S. 581 (2005) (upholding semiclosed primary as nonsevere burden)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing—injury‑in‑fact standard)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) (mootness—voluntary cessation and recurrence risk)