United States District Court, W.D. Virginia, Harrisonburg Division
KENNETH H. ADAMS and 24TH SENATORIAL DISTRICT REPUBLICAN COMMITTEE, Plaintiffs,
JAMES B. ALCORN, CLARA BELLE By: Elizabeth K. Dillon WHEELER, SINGLETON McALLISTER, United States District Judge and VIRGINIA DEPARTMENT OF ELECTIONS, Defendants, and DANIEL MOXLEY, Intervenor-Plaintiff, and SEN. EMMETT W. HANGER, JR., Intervenor-Defendant.
ELIZABETH K. DILLON, District Judge.
This lawsuit involves constitutional challenges to a portion of a Virginia election statute, Section 24.2-509(B) of the Virginia Code, commonly referred to as the Incumbent Protection Act ("the Act"). The Act provides that if there is only one incumbent office-holder in a General Assembly district, that incumbent may select the nominating method by which his political party's candidate for his seat will be chosen. The original plaintiffs are the 24th Senatorial District Republican Committee, which is a local committee of the Republican Party of Virginia ("RPV" or "the Party"), and its chairman, Kenneth H. Adams (collectively, "the Committee"). The Committee's amended complaint asserts an as-applied challenge to the Act, contending that it unconstitutionally infringes on the plaintiffs' First Amendment rights to free association. The Committee names as defendants the Virginia Department of Elections and various officials with the Virginia State Board of Elections (collectively, "the Commonwealth").
In addition to the original parties in the lawsuit, the court has granted leave for two parties to intervene. The first is intervenor-defendant Senator Emmett W. Hanger, a member of the RPV and the incumbent office-holder for the 24th Senate District seat. As described in more detail herein, Hanger has relied on the authority granted him in the Act and has designated a primary as the method for nominating the Republican candidate for his seat in the 2015 election. He made that designation after the Committee had called for a convention to be used as the method of nomination.
The second party is intervenor-plaintiff Daniel Moxley, who (like Hanger) seeks the nomination of the RPV for the 24th District senate seat. Moxley has filed a separate intervenor complaint alleging that the Act violates his constitutional rights under the Equal Protection Clause of the United States Constitution and is invalid on its face, because it confers on an incumbent an electoral advantage over challengers in his own party, i.e., the unfettered ability to choose the nominating method for the party's candidate. He argues that the Act "invidiously discriminat[es] against [him] and all other challengers to Hanger[, ]" that it "serves no compelling state interest, and is not narrowly tailored to serve any such interest." Dkt. No. 40, Moxley Compl. at ¶¶ 21, 22.
Pending before the court are: (1) separate motions for preliminary injunction filed by the Committee and Moxley; (2) separate motions to dismiss the Committee's complaint filed by the Commonwealth and Hanger; (3) a motion by the Commonwealth to dismiss Moxley's intervenor complaint; and (4) defendants' motion for joinder. In their motions to dismiss, defendants argue that both complaints are subject to dismissal because the plaintiffs have failed to establish standing.
As discussed in more detail below, the court concludes that both the Committee and Moxley have failed to establish constitutional standing in this case. As a result, this court does not have jurisdiction over their claims. The court will therefore deny both the Committee's and Moxley's motions for preliminary injunction and grant the defendants' motions to dismiss the complaints.
At the March 23, 2015 hearing before the court, the parties confirmed that there are no factual disputes that affect the merits of the case at this stage and that the parties disagree solely over issues of law. As noted, Hanger is the only incumbent senator in the 24th Senate District of Virginia and is a member of the RPV. Dkt. No. 29, Am. Compl. at ¶ 16. The RPV, a voluntary association, has a Plan of Organization ("the Plan") that is a contract governing its members and operation. The Plan includes a delegation of authority to the Committee to determine the method of nomination for candidates seeking the Republican nomination for the 24th Senate District. Dkt. No. 29, Am. Compl. at ¶¶ 3, 13 and Ex F thereto. Specifically, Article V of the Plan (titled "Legislative District Committee"), subsection D (titled "Duties"), provides in pertinent part:
The Legislative District Committee shall determine whether candidates for Legislative District public office shall be nominated by Mass. Meeting, Party Canvass, Convention or Primary, where permitted to do so under Virginia Law.
Dkt. No. 29-6 at 13, Plan at Art. V, § D(1)(a). As discussed herein in relation to standing, the parties disagree over whether the foregoing delegation to the Committee includes the authority to select a nomination method where the incumbent has designated a method pursuant to the Act or only delegates such authority when the incumbent has not made such a designation.
Virginia law generally provides that the nomination method for political candidates shall be determined by the political parties. The Act is described as an exception to that rule. Virginia Code § 24.2-509(A) provides, "[t]he 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." The provision challenged here is contained in subsection (B), and states in pertinent part, "Notwithstanding Section (A), ... [a] party shall nominate its candidate for election for a General Assembly district where there is only one incumbent of that party for the district by the method designated by that incumbent, or absent any designation by him by the method of nomination determined by the party." Va. Code § 24.2-509(B). Thus, the provision sets up a scheme whereby it is possible that the incumbent could select one method of nomination, such as a primary, in contradiction of the local committee's desire for a different method to determine the party's candidate. That is what has occurred here.
In December 2014, the Committee adopted a resolution designating a convention as the means of nominating the Republican candidate for the 24th Senate District for 2015 and informed the Commonwealth of that action on December 4, 2014. Dkt. No. 29, Am. Compl., ¶ 15 at Exs. B & C. After making suitable arrangements for a location, Adams issued a Call for the convention on February 10, 2015, setting it for April 25, 2015. See Dkt. No. 32, Pls.' Reply to Defs.' Mot. Dismiss, at 21; Dkt. No. 9-4, Adams Decl. at Ex. 3. Then, on February 23, 2015, Senator Hanger, pursuant to Section 24.2-509(B), provided notice to the Commonwealth and to the Committee that he was designating a primary as the method of nomination for the Republican candidate for his seat for the 2015 election. Dkt. No. 29, Am. Compl. at ¶ 16 and Ex. D.
The Commonwealth has indicated that it intends to follow Hanger's designation and hold a primary to determine the Republican candidate. Dkt. No. 49, Defs.' Mem. Opp. to Moxley's Mot. for Prelim. Inj., at 1-2; see also Dkt. No. 9-8 at 1, Adams Decl. at Ex. 7 (document signed by Gary W. Fox of the Virginia State Bar of Elections, in which he states that a Republican Primary has been called for the 24th Senate District, and that it will proceed unless only "one candidate qualif[ies] for the primary ballot."). In their filings, the Commonwealth acknowledges, consistent with the Fourth Circuit's decision in Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) ("Miller II"),  that it cannot require the RPV to hold an open primary and that "it will do all it can to comply with Miller [II]." See Dkt. No. 26, Defs.' Mem. Supp. Mot. Dismiss, at 22 (noting this is the first instance since Miller II in which an incumbent has chosen a primary and the party "seeks a closed primary based on its rules"). This effectively means that the RPV Plan shall govern who may participate in any primary and that this will not be an open primary. See Dkt. No. 54, Transcript of March 23, 2015 Hearing ("Hearing Tr.") at 23.
Based on the Commonwealth's representation, the parties are in agreement that the universe of voters who will be permitted to vote for the Republican nominee for the seat is the same pool of voters, regardless of whether a convention or a primary is the voting method. Hearing Tr. at 24, 35, 77. That is, the Plan directs that the same qualifications will permit a voter to ...