Lynchburg Republican City Committee v. Virginia Department of ElectionsLynchburg Republican City Committee v. Virginia Department of Elections
The Lynchburg Republican City Committee and its chairperson, Veronica Bratton, bring this
intra-party nominations. The Committee seeks declaratory and injunctive relief to invalidate the law and enjoin further enforcement by the Department. See Dkt. 1 at 26 (Complaint).3 It also seeks a writ of mandamus requiring Commissioner Beals to accept its nomination without adhering to the challenged statute. Id. at 27.
Commissioner Beals moves to dismiss the complaint for lack of subject matter
As explained below, the Court will GRANT Commissioner Beals’ motion to dismiss for lack of subject matter jurisdiction, pursuant to
I. Legal Standard
A motion to dismiss pursuant to
II. Background
“Elections in Virginia do not begin in the November general election.” Dkt. 1, ¶ 14. “They begin during the party nomination process, when the major political parties select the nominees that the voters will see on the ballot in November.” Id. For local elections, the major political parties rely on a network of smaller political committees based in cities and counties to produce nominees. The local committees are authorized to select their choice of nomination method and must certify to the State Board of Elections whichever method is chosen. See
Historically, committees have been free to choose between either (1) a state-run, open primary, “which is paid for by the taxpayers and open to all registered voters” regardless of party affiliation,4 or (2) a “party-run process such as a convention, mass meeting, or party canvass (sometimes called a ‘firehouse primary‘),” which allows the party to restrict participation to
party affiliates. Dkt. 1, ¶ 15.5 The Committee
In 2021, the Virginia General Assembly amended a portion of the state elections code to require parties to provide for absentee participation in their nomination processes. See H.B. 2020 (2021) (now codified at
The Committee alleges that in 2024 it “attempted to conduct a party canvass . . . to nominate [its] candidate for [Lynchburg] City Council, after making drastic changes to [its] rules in an attempt to provide an efficient process for absentee voting.” Dkt. 1, ¶ 47. (The complaint does not allege further facts regarding the outcome of this attempt.) Allegedly in response to the Committee‘s action, Virginia House of Delegates Minority Leader Todd Gilbert (R - Shenandoah County), “asked Virginia Attorney General Jason Miyares for an opinion as to whether even the [Committee‘s] absentee-friendly party canvass process would pass muster under the convention ban law.” Dkt. 1, ¶ 48.6
The Attorney General issued an opinion in February 2024 concluding that “[a] political party may not select a nomination method that de facto requires covered voters to be physically present to participate or that otherwise has the practical effect of excluding their participation.” Dkt. 1, ¶ 50. General Counsel for the Republican Party of Virginia, Chris Marston, then advised all 133 county and city committees, including Plaintiff Committee, that “a state-run primary is the only way the Party can nominate candidates for public office.” Dkt. 1, ¶ 51. Marston further advised that “[a]ll chairs who have nominating contests this year should advise the Department [of Elections] that they will use a primary by the March 5 deadline.” Dkt. 1, ¶ 52. In parallel, the chairman of the 31st House District Republican Committee, Timothy Johnson, attempted
stated that “[t]his timeframe made it facially impossible for the covered voters of
Based on these events, the Committee alleges that it has been told “at every level” that it “[has] no option but to adopt a state-run, open primary in which Democrats and other opponents to the Republican Party can raid the process of selecting their nominees.” Dkt. 1, ¶ 55. It alleges that the Party Plan of the Republican Party of Virginia allows the Committee “to determine its own membership” and avoid “raiding” by requiring persons to pledge their fealty in nominating contests, but that these features of the party plan are “effectively nullified” and rendered impossible by Section
Moreover, the Committee alleges that further injury is forthcoming “as the 2026 City Council races approach.” Dkt. 1, ¶ 82. In the previous election cycle, Peter Alexander and Chris Faraldi, both Republicans, competed in the 2024 primary for the Ward IV Lynchburg City Council seat. See id. ¶¶ 82-92. Faraldi won. Id. Alexander had signed a statement of intent under the party‘s plan, promising to support the party‘s nominees in the general election. Id. But after his defeat, he began a write-in campaign as an independent. Id. He again lost in the general election, with Faraldi prevailing over him and Democrat April Watson. Id. Alexander then announced his intention to run against Republican City Council member Stephanie Reed in the
See Dkt. 9-3. At the
The Committee alleges that the party plan would normally disqualify Alexander from participating in future party actions due to his opposition to Faraldi in the previous general election. Dkt. 1, ¶ 92. However, it claims that Section
III. Discussion
The statute at issue here,
The duly constituted authorities of the political party for the district, county, city, or town in which any other office is to be filled shall have the right to determine the method by which a party nomination for that office shall be made. A method of nomination shall not be selected if such method will have the practical effect of excluding participation in the nominating process by qualified voters who are otherwise eligible to participate in the nominating process under that political party‘s rules but are unable to attend meetings because they are (i) a member of a uniformed service, as defined in
§ 24.2-452 , on active duty; (ii) temporarily residing outside of the United States; (iii) a student attending a school or institution of higher education; (iv) a person with a disability; or (v) a person who has a communicable disease of public health threat as defined in§ 32.1-48.06 or who may have come in contact with a person with such disease.
In its presentation of its claims, the Committee does not explain whether each cause of action is brought as a facial challenge, an as-applied challenge, or both. On one hand, the Committee asks the Court to invalidate and enjoin Section
“[C]lassifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding breadth of the remedy.” Bucklew v. Precythe, 587 U.S. 119, 138 (2019). To succeed in a facial constitutional challenge, a movant “must establish that no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Hosford, 843 F.3d 161, 165 (4th Cir. 2016). By contrast, “[a]n as-applied challenge requires only that the law is unconstitutional as applied to the challenger‘s case.” United States v. Mgmt. Consulting, Inc., 636 F. Supp. 3d 610, 619 (E.D. Va. 2022). An as-applied challenge must be “based on a developed factual record and the application of a statute to a specific person.” Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en banc). However, whether the challenge is facial or as-applied “does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew, 587 U.S. at 138.
The Court concludes that the Committee‘s action must be dismissed whichever way it is framed. Insofar as the Committee argues that Section
Insofar as the Committee argues that Section
A. The As-Applied Constitutionality of Section 24.2-509(A) is Not Ripe for Judicial Resolution
Ripeness, as with standing, “originates in the ‘case or controversy’ constraint of Article III.” Scoggins v. Lee‘s Crossing Homeowners Ass‘n, 718 F.3d 262, 269 (4th Cir. 2013). It is therefore “a question of subject matter jurisdiction.” Sansotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013). The burden of proving ripeness falls on the plaintiff. Renne v. Geary, 501 U.S. 312, 316 (1991).
To determine whether a case is ripe, courts “balance ‘the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.‘” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (quoting Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002)). “A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Miller v. Brown, 462 F.3d at 319. Stated differently, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Scoggins, 718 F.3d at 470 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).
“The hardship prong is measured by the immediacy of the threat and the burden imposed on the plaintiffs who
Ripeness has particular application in the context of challenges to administrative actions:
[I]njunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
Here, the Court finds that, on balance, the Committee‘s case is not ripe for review. The Committee argues that withholding judicial review constitutes a hardship upon its operations, given the compressed nature of election timelines. But the Committee‘s claims are simply unfit for judicial resolution at this stage. As explained herein, the Committee brings a First Amendment challenge to a state elections statute which does not trigger strict scrutiny, and the legal test which controls such claims would require the Court to balance the state‘s justification for the law with the burden imposed upon the Committee. See Fusaro v. Cogan, 930 F.3d 241, 257 (4th Cir. 2019) (stating that “election laws are usually, but not always, subject to ad hoc balancing“) (quoting McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995)). However, the burden on the Committee is only speculative at this point. Where the statute is reasonable on its face, lacks any implementing guidance, and has not been enforced against the Committee, the Court‘s intervention at this stage would be little more than an advisory opinion that violates the case and controversy requirement of
1. Fitness for Judicial Decision
The question for judicial resolution here, in its plainest terms, is whether it is unconstitutional for Virginia to require political parties to provide for absentee voter participation in non-primary nomination contests.
“State election regulations often ‘implicate substantial voting, associational and expressive rights protected by the
On the other hand, “the Constitution does not grant political parties free reign in determining their nomination processes.” Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 947 (W.D. Va. 2018) (”Fitzgerald“), aff‘d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019) (citing Lopez Torres, 552 U.S. at 203). “States have a major role to play in structuring and monitoring the election process, including nominee selection.” 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 402 (4th Cir. 2019) (”Alcorn“). The Supreme Court has “considered it ‘too plain for argument,’ for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion.” Jones, 530 U.S. at 572 (quoting American Party of Tex. v. White, 415 U.S. 767, 781 (1974)).
To address First Amendment challenges to a state election laws, the Supreme Court has articulated a “flexible standard,” known as the Anderson-Burdick test. Fusaro, 930 F.3d at 257 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). Under that test, “a court must first determine whether protected rights are severely burdened,” because if so, strict scrutiny applies. Id. at 257-58. (quotation marks omitted). “However, the class of laws facing this higher scrutiny is limited.” Libertarian Party, 826 F.3d at 717. Subjecting too many laws to strict scrutiny “would unnecessarily ‘tie the hands of States seeking to assure that elections are operated equitably and efficiently.‘” Id. (quoting Burdick, 504 U.S. at 433).
If the challenged election law “imposes only ‘reasonable, non-discriminatory restrictions,‘” the burden is not severe, and strict scrutiny does not apply. Burdick, 504 U.S. at 434. In that case, “the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state‘s interests in ensuring that ‘order, rather than chaos, is to accompany the democratic processes.‘” Fusaro, 930 F.3d at 258; see also Alcorn, 913 F.3d at 402 (“Not every burden on associational rights is unconstitutional . . . . Where the burden imposed by the state is not severe—where it is lesser—courts engage in less exacting review.“) (internal quotations and citations omitted).
To determine the threshold question of whether the burden is severe, courts may look “to the text of a challenged statute, its practical operation, and whether it is ‘facially neutral and nondiscriminatory,’ which—in this context—has generally referred to a statute that does not favor one political party or viewpoint over another.” Fusaro, 930 F.3d at 259. Indeed, “the controlling precedents emphasiz[e] that when a court evaluates an electoral regulation, political neutrality is a touchstone for assessing the burden imposed thereby.” Fusaro. 930 F.3d at 263; see, e.g., Libertarian Party, 826 F.3d at 717 (“The law is facially neutral and nondiscriminatory—neither . . . party faces a disproportionate burden. All parties are subject to the same requirements. None are automatically elevated to the top of the ballot.“). This is in part because a non-neutral statute—“an election regulation that plausibly burdens First Amendment rights on the basis of viewpoint, political affiliation, or class“—would be automatically subject to strict scrutiny. Id. at 261. While burden is context-dependent, courts
Several cases delineate the line between severe and modest burdens. In California Democratic Party v. Jones, the Supreme Court applied strict scrutiny and struck down California‘s blanket primary law, Proposition 198, because it required political parties to “adulterate their candidate-selection process by opening it up to persons wholly unaffiliated with the party,” who may have held different views from the party. Jones, 530 U.S. at 581. In Eu v. San Francisco County Democratic Central Committee, the Court applied strict scrutiny and struck down California‘s ban on primary endorsements, because it prevented parties from “stating whether a candidate adheres to the tenets of the party” and thereby “directly hamper[ed] the ability of a party to spread its message.” 489 U.S. 214, 223 (1989). However, in Clingman v. Beaver, the Court found that Oklahoma‘s semiclosed primary law did not impose severe burdens when it provided that only registered party members and registered Independents could vote in a political party‘s primary. 544 U.S. 581, 590 (2005). The Court reasoned that “Oklahoma‘s law [did] not regulate the [party‘s] internal processes, its authority to exclude unwanted members, or its capacity to communicate with the public.” Id. Similarly, in Timmons v. Twin Cities Area New Party, the Court found that a Minnesota law did not impose severe burdens when it prohibited individuals from appearing on the ballot as the candidate of more than one party. 520 U.S. 351, 363 (1997). The Court reasoned that the law did not “restrict the ability of the [party] and its members to endorse, support, or vote for anyone they like,” nor did the law “directly limit the party‘s access to the ballot.” Id.; see also Clingman, 544 U.S. at 590 (discussing Timmons and stating that “Minnesota had neither regulated the New Party‘s internal decisionmaking process, nor compelled it to associate with voters of any political persuasion“).
a. Strict Scrutiny Does Not Apply
Here, Section
Second, the practical exclusion provision is limited in its scope: It only applies to voters who are “qualified” and “eligible” to participate under the party‘s rules, and only when those voters are “unable to attend” the nomination because they belong to one of five classes of voters. See
Third, the statute is plainly neutral and non-discriminatory. “[P]olitical neutrality is a touchstone for assessing the burden imposed” by an election law. Fusaro, 930 F.3d at 263. And here, “[a]ll parties are subject to the same requirements” under Section
Fourth, and most importantly, the statute does not burden political parties’ right to select their nominee of choice or exclude non-affiliates. The law clearly preserves parties’ rights to adopt rules which determine who is “eligible to participate in the nominating process,” and, as noted, the absentee requirement only applies to those voters whom parties have deemed eligible. Thus, Section
Together, these factors demonstrate that Section
b. The Committee‘s Burden Is Speculative
In lieu of strict scrutiny, courts must “balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state‘s interests.” Fusaro, 930 F.3d at 258 (quoting McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995)); Alcorn, 913 F.3d at 402. Commissioner Beals asserts that the Commonwealth has a “fundamental interest in ensuring that active-duty military, people with disabilities, students, and others who are unable to attend in person are afforded an opportunity to participate in their own party‘s nominating process.” Dkt. 9 at 26. The Committee, meanwhile, argues that the absentee requirement is such a demanding and costly requirement that it will, in effect, render its party-led nominations impossible and force it to hold state-run, open primaries—vulnerable to raiding by opposing parties. See, e.g., Dkt. 1, ¶ 13 (complaint arguing that Section
The statute on its face provides simply that that “[a] method of nomination shall not be selected if such method will have the practical effect of excluding” certain enumerated classes of absentee voters.
The Committee points to two sources of information which, it contends, solve this problem and show that Section
compliance with Section
[A]n effort to allow participation remotely or through some form of absentee ballots necessarily would have to account for . . . those serving in combat zones or deployed on submarines. I note that with regard to state-run primaries, the Department of Defense (DOD) and the Virginia Department of Elections make extraordinary efforts to address these challenges . . . . A political party‘s failure to address these challenges in a like manner . . . could have the practical effect of excluding participation by military personnel, in violation of
§ 24.2-509(A) .
See Dkt. 9-3 (Attorney General Opinion) at 4; see also 2024 Va. Op. Att‘y Gen. No. 24-003, 2024 VA. AG LEXIS 2 (Feb. 16, 2024).12 Respectfully, however, the Attorney General‘s opinion is just that—an opinion. It is neither a binding interpretation of the law nor a source of law itself. It is the Department of Elections, not the Attorney General, that will be implementing the law and evaluating parties’ frontline efforts to comply with it. Accordingly, the Attorney General‘s opinion does not solve the Committee‘s problem. It does not persuade the Court that the record is developed enough to allow a merits resolution of the claims in this case.
Second, the Committee points to the experience of Virginia‘s 31st House District Republican Committee (“HD 31“),13 which attempted to certify to the Department of Elections a party canvass and was rejected. Dkt. 1, ¶ 53. The Committee‘s framing of the attempt construes the rejection as hinging upon HD 31 selecting a “non-primary method of nomination,” Dkt. 1, ¶ 54, but the facts show that HD 31‘s “non-primary nomination method” was rejected because it “only permitted 9 calendar days (less than 7 full business days) for participation.” Dkt. 9-4 (Beals email to Johnson). Commissioner Beals stated that “[t]his timeframe made it facially
impossible for the covered voters of
For one, it is not clear how Commissioner Beals’ rejection foretells that Section
Together, these factors suggest that the Committee‘s claims are not fit for judicial resolution at this stage.
Last, we think it is worthwhile to compare the instant case to others in which courts have entertained pre-enforcement challenges to state laws and found that the claims were ripe and justiciable. Our review of those cases suggests that the ripe claims at issue were largely facial challenges that required less factual development than the claims here. Two cases are particularly illustrative: Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), and Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979).
(i) Miller v. Brown
In Miller v. Brown, Virginia‘s 11th Senatorial District Republican Committee and its chairman challenged Virginia‘s open primary law on First Amendment grounds. 462 F.3d 312, 314-15 (4th Cir. 2006). The committee‘s incumbent candidate, Senator Stephen Martin, had selected a primary contest for his upcoming reelection bid, and this choice bound the committee
to hold a primary under the Incumbent Protection Act,
The committee sued the Board in a declaratory judgment action under
The Fourth Circuit first noted that “[t]he allegation of having to associate with members of the other party during their candidate-selection processes unquestionably pleads a constitutional injury.” Miller, 462 F.3d at 316. However, the real question was whether the committee‘s injury was actual or imminent, and whether the claims were ripe. On both fronts the Court concluded that the committee‘s claims were justiciable.
Regarding ripeness, the Court observed that “[t]he only issue in the case is whether Virginia‘s open primary law violates the plaintiffs’ First Amendment rights to freely associate, which presents a purely legal question.” Id. at 319. The law clearly required, on its face, association between political adversaries, and the committee‘s legal theory plainly called that unconstitutional. While the Board emphasized that the primary had yet to occur and thus the committee had yet to suffer its injury, the Court rejected this framing. “[T]he only true uncertainty is whether another candidate will file for office as contemplated by
Here, the Committee presents an altogether different situation. The Committee challenges a law which, by its text, is reasonable and does not facially infringe upon their rights, unlike Miller. Furthermore, the Committee has not sought approval of any nomination method from the Department of Elections in compliance with the law, unlike Miller—where the plaintiffs had already proposed a plan and been rejected. The Committee only speculates that its future attempts will be rejected and its rights burdened. Whereas Miller left only a legal question to be resolved, the Committee‘s claims here hinge upon future factual uncertainties and administrative actions that render them unfit for this Court‘s intervention.
(ii) Babbitt v. United Farm Workers National Union
Next is Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979). There the Supreme Court assessed the ripeness of a First Amendment challenge to Arizona‘s farm labor statute, which generally governed the rights of agricultural union members. Babbitt, 442 U.S. at 293. The plaintiffs, including the United Farm Workers National Union, challenged multiple, distinct provisions of the statute. Id. (For ease, we will refer to the plaintiffs as “the Union.”) The Court found that some claims were ripe, while others were not.
As to the statute‘s provisions “regulating election procedures,” the challenge was ripe. The Union‘s “principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons.” Babbitt, 442 U.S. at 299. The statute contained “austere limitations on who is eligible to participate in elections,” and the Union “adduced evidence tending to prove[] that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives.” Id. at 299-300.
The defendants, who were all parties charged with implementing the law, urged the Court to “decline to entertain [the Union‘s] challenge until they undertake to invoke the Act‘s election procedures,” so that the Court might “acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that [the Union] introduced at trial.” Babbitt, 442 U.S. at 299. But the Court was not persuaded. Even though the Union and its members had not “invoked the Act‘s election procedures in the past nor . . . expressed any intention of doing so in the future,” their reluctance did not defeat the justiciability of their challenge “in view of the nature of their claim.” Id. The nature of the claim and the question for judicial resolution was “whether the election procedures are subject to scrutiny under the First Amendment at all.” Id. 301. Awaiting the Union‘s “participation in an election would not assist [the Court‘s] resolution of [that] threshold question,” and thus there was “no warrant for postponing adjudication of the election claim.” Id.
Here, the “nature” of the Committee‘s claim is a world apart from the nature of the above claim in Babbitt. Whereas in Babbitt the Union attacked the farm labor statute for its existing and detailed election provisions (such as the law‘s “austere limitations on who is eligible to participate in elections”), here the Committee challenges
Notably, the Court in Babbitt found that the Union‘s challenge to a separate provision of the farm labor statute, the “access provision,” was not ripe. Babbitt, 442 U.S. at 303-04. The access provision sharply limited the extent to which employers could be compelled to provide labor unions with certain accommodations (access to property, information, facilities, etc.) to organize or simply to communicate with farmworkers. Id. The Union argued that this access provision infringed upon its associational rights, but the Court found that its argument relied on conjecture:
It may be accepted that the [Union] will inevitably seek access to employers’ property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, [the Union‘s] claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh v. Alabama, 326 U.S. 501 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting [the Union‘s] constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of [the Union‘s] challenge to the access provision must therefore await at least such time as [it] can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused.
In other words, adjudication of the constitutional challenge to the access provision depended on the resource sought and its situs (not to mention denial of access to that situs). These were factual uncertainties that rendered the legal calculus incomplete and speculative. Here, we are not dealing with an “access provision” or the First Amendment‘s collision with property or labor rights. But like Babbitt, we are dealing with a legal inquiry—the state‘s justification for
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We note that the Commonwealth has a duty to allow nomination methods that facilitate exclusive party affiliation and association, see Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) (“Miller II”),15 but the Committee also has a duty to first attempt compliance with state elections laws where those laws are reasonable and not discriminatory.
2. Hardship
As to hardship, the Committee argues that its case deserves expedient judicial resolution based on the timing constraints of the 2026 election cycle. It contends that, under Virginia law, it must call a meeting (and provide notice for that meeting) to vote on whether to hold a party-run process or submit to the state-run open primary. Dkt. 11 at 16. It contends that this decision “must be made within the statutorily-mandated election calendar,” id, and under that calendar, none of these steps can occur until January 2026. Id. (“Thus, assuming January 1 as a holiday, no call can be issued until January 2, and no meeting held pursuant to that call until January 9.”). However,
First, in a facial challenge to jurisdiction such as Commissioner Beals’ Rule 12(b)(1) motion to dismiss, we must assume that the complaint‘s factual allegations are true. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017). But the Committee‘s complaint is barren as to considerations of expediency or hardship. The Committee raises its arguments about constrained timelines only in its response to the motion to dismiss. See Dkt. 11 at 15-21. It does not allege facts regarding the “statutorily-mandated election calendar” in its complaint. This weighs against a finding of serious hardship on the Committee, but it is not dispositive.
Second, it is not clear to which “statutorily-mandated election calendar” the Committee refers. It states in its opposition that it “cannot file a notice for [its] 2026 nomination process in calendar year 2025.” Dkt. 11 at 15. It cites
Several other provisions come close to the Committee‘s argument but fail to mean what the Committee says they mean. For example,
Finally, the Party Plan of the Republican Party of Virginia prohibits the Committee from calling a non-primary earlier than January 1 of the year in which the non-primary method would occur. See Dkt. 9-2 at 19 (Article VII(A)(2) of Party Plan) (“[N]o call shall be published earlier than January 1 of the year in which the Mass Meeting, Party Canvass or Convention will take place.”). However, this is a self-imposed constraint, not a “statutorily-mandated” one. Accordingly, none of the foregoing provisions expressly preclude the Committee from developing an absentee voter plan and seeking pre-clearance for that plan before January 2026.
Commissioner Beals, moreover, has not taken any position to suggest that such
Finally, the Committee‘s theory of hardship is dissimilar from relevant caselaw on this question. The Fourth Circuit in Miller found that ripeness existed in part because “the plaintiffs would suffer undue hardship by waiting until the eve of the election to seek a decision in their case.” Miller, 462 F.3d at 321. The Court observed that “[t]he open primary law causes immediate harm to their constitutionally protected rights because they know Democrats will be participating in their primary.” Id. “By obtaining a final decision now, the plaintiffs will have adequate time to make effective campaign decisions.” Id.
Here, the same considerations do not apply. Unlike Miller,
We acknowledge that “[b]ringing lawsuits on the eve of pending elections disrupts the electoral process.” Miller, 462 F.3d at 320. Indeed, the Supreme Court in Babbitt wrote extensively (albeit in a footnote) about the importance of ripeness challenges in the election context:
Though waiting until appellees invoke unsuccessfully the statutory election procedures would remove any doubt about the existence of concrete injury resulting from application of the election provision, little could be done to remedy the injury incurred in the particular election. Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment. Justiciability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election. There is value in adjudicating election challenges notwithstanding the lapse of a particular election because “[the] construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held.”
Babbitt, 442 U.S. at 301 n.12 (quoting Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974)) (other internal citations omitted).
But we have already explained why the statutory provisions that were ripe for adjudication in Babbitt are meaningfully distinct from the capacious, unimplemented, and facially reasonable absentee voter provision in
***
On balance, while the Committee may face some hardship by the Court withholding review, its alleged hardship is not a foregone conclusion. The Committee may yet seek and receive approval for holding a non-primary method in compliance with
Accordingly, the Committee‘s as-applied challenge to the statute is not ripe and must be dismissed for lack of subject matter jurisdiction.
B. The Facial Constitutionality of Section 24.2-509(A) is Not Ripe for Judicial Resolution
“[A] facial challenge is the ‘most difficult challenge to mount successfully,’ because it requires a defendant to ‘establish that no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Nutter, 137 F.4th 224, 229 (4th Cir. 2025) (quoting United States v. Rahimi, 602 U.S. 680, 708 (2024)).18 In other words, a plaintiff must show that all conceivable applications of the law are unconstitutional. The Supreme Court has lowered that “very high bar” in the First Amendment context, however. Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024) (internal quotations omitted). First Amendment plaintiffs must show either that (i) no set of circumstances exist under which the law would be valid, or (ii) that the law lacks a “plainly legitimate sweep.” Id. To show the law lacks a plainly legitimate sweep, the plaintiff must show that “a substantial number of the law‘s applications are unconstitutional,” such that these applications “substantially outweigh its constitutional ones.” Id. at 724.
Here, the Committee has not shown that
Additionally, principles of judicial restraint which undergird ripeness doctrine likewise counsel restraint in evaluating facial challenges. “[F]acial challenges threaten to short circuit the democratic process by preventing duly enacted laws from being implemented in constitutional ways.” Moody, 603 U.S. at 723. In the same vein, one purpose of the ripeness doctrine is to “protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs, 387 U.S. at 148–49. These principles counsel restraint in the case at bar. If this Court lacks an adjudicable controversy with respect to the Committee‘s as-applied claim, the Court should not venture even further afield to resolve the statute‘s application to others or to the abstract. Thus, the Committee‘s facial
IV. Conclusion
Commissioner Beals’ motion to dismiss for lack of subject matter jurisdiction, Dkt. 8, will be GRANTED in an accompanying order.
The Clerk of Court shall send a copy of this Memorandum Opinion to all counsel of record.
Entered this 30th day of July, 2025.
NORMAN K. MOON
SENIOR UNITED STATES DISTRICT JUDGE
Notes
Miller II held that Virginia‘s open primary law was unconstitutional as applied to the 11th Senatorial District Republican Committee. The committee‘s incumbent candidate, Senator Stephen Martin, had opted for a primary contest in his upcoming reelection bid, and this choice bound the committee to a primary under the Incumbent Protection Act,
The lesson from Miller II is that Virginia‘s open primary law, and indeed the state‘s entire election apparatus, is constitutional only insofar as it provides persons with alternative opportunities to associate by exclusion, i.e., the opportunity to hold nomination contests that are exclusive to party affiliates. Where that option is foreclosed, even, for example, by the effect of an incumbent‘s lawful choice in Miller II, the State‘s election scheme becomes unconstitutional as applied.
For our purposes, this means that the Department of Elections has a constitutional duty to take seriously political parties’ attempts to comply with the absentee provisions of
We take judicial notice that the Department of Elections’ website contains a hyperlinked document called the “Political Party Bulletin” which provides deadlines for political parties for the upcoming 2025 election. See VIRGINIA DEPARTMENT OF ELECTIONS, Candidate Bulletins — “Political Parties” (last accessed July 23, 2025), https://www.elections.virginia.gov/candidatepac-info/candidate-bulletins/;
The Bulletin, on page 3, provides that parties must provide “Notice of Nomination Method” through an online form by February 12, 2025, and it cites