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Fitzgerald v. Alcorn

United States District Court, W.D. Virginia, Harrisonburg Division

January 19, 2018

ANNE T. FITZGERALD, et al., Plaintiffs,
JAMES B. ALCORN, et al.. Defendants.


          Michael F. Urbanski, Chief United States District Judge

         Political parties in Virginia can nominate their candidates for general elections through various methods. For example, a party may use a primary election in which all registered voters are invited to participate, or it could hold a mass meeting in which party loyalists select a nominee. As a default rule, Virginia allows the party to select its preferred nomination method. However, state election law provides an exception to this rule that empowers certain incumbent officeholders to select their party's nomination method, even over the party's objection. That provision of state law, known as the Incumbent Protection Act, Va. Code Ann. § 24.2-509(B), is the target of this lawsuit.

         Plaintiffs are associated in various ways with the Republican Party of Virginia. They claim that the Incumbent Protection Act violates their right to free association under the First Amendment and should be struck down. Defendants, the Virginia Department of Elections and members of the Virginia Board of Elections, counter that plaintiffs lack standing and fall short on the merits. The case is presently before the court on cross-motions for summary judgment. ECF Nos. 33, 35.


         The Incumbent Protection Act (the "Act"), Va. Code Ann. § 24.2-509(B), affects each of the five plaintiffs in distinct ways. Indeed, each plaintiffs relationship to the Act weighs heavily on the outcome of their respective claims. Two of the plaintiffs are committees within the Republican Party of Virginia (the 'Tarty"), and three are individuals associated with the Party.

         The Party is an unincorporated voluntary association governed by its Plan of Organization (the "Plan"). ECF No. 39-1. The Plan establishes party committees for each electoral district in the Commonwealth. Under the Plan, those committees must use one of four possible methods to nominate Republican candidates for general election: a primary, a party canvass, a convention, or a mass meeting. See The Plan, Art. I § A(1), ECF No. 39-1, at 4.[1] The Commonwealth funds and conducts primaries, and the Party is responsible for funding and organizing the latter three methods. See Va. Code Ann. §§ 24.2-517, 24.2-510.

         Plaintiff 20th House of Delegates District Republican Committee ("20th House Committee") is organized under Article V of the Plan. The 20th House of Delegates district comprises the cities of Staunton and Waynesboro and portions of Augusta, Nelson, and Highland Counties.[2] Delegate Richard Bell, a member of the Republican Party, has represented the 20th House of Delegates district since 2010. Article V of the Plan vests the 20th House Committee with authority to determine whether candidates for its district "shall be nominated by Mass. Meeting, Party Canvass, Convention or Primary, where permitted to do so under Virginia Law." The Plan, Art. V § D(1)(a). The phrase "where permitted to do so under Virginia Law" was the subject of previous litigation, see 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624 (4th Cir. 2016) ("24th Senatorial Committee"), and remains important in this case.

         The other committee-plaintiff is the 6th Congressional District Republican Committee ("6th Congressional Committee"), which is organized under Article IV of the Plan. The 6th congressional district covers much of the west-central portion of Virginia, from Roanoke to Front Royal. Representative Robert Goodlatte, also a member of the Republican Party, has represented the 6th congressional district since 1993. In 2016, Representative Goodlatte won nomination by primary, which qualifies him to exercise power under the Act.[3] Under Article IV of the Plan, the 6th Congressional Committee has authority to "determine whether candidates for [] public office shall be nominated by Convention, Party Canvass or Primary." The Plan, Art. IV § D(1)(a).

         Plaintiffs Anne T. Fitzgerald, Edward A. Yensho, and Karen U. Kwiatkowski, each sue individually as Virginia voters and members of the Party. Fitzgerald also sues in her capacity as the chairman of the 20th House Committee. Likewise, Yensho sues as chairman of the Greene County Republican Committee, though the Greene County Committee is not a party to this suit. None of these individuals currendy hold public office.[4]

         In sum, plaintiffs consist of the committee-plaintiffs (20th House Committee and 6th Congressional Committee), the chairman-plaintiffs (Fitzgerald and Yensho), and the individual-plaintiffs (Fitzgerald, Yensho, and Kwiatkowski). Plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, alleging that the Act is facially invalid because it violates their right to free association.

         The defendants are the three members of the Virginia Board of Elections (the "Board")-Chairman James B. Alcorn, Vice Chair Clara B. Wheeler, and Secretary Singleton B. McAllister-and the Virginia Department of Elections (the "Department"). Both the Board and the Department are charged with enforcing the Incumbent Protection Act, among the other state election laws. See Va. Code Ann. §§ 24.2-103, 24.2-404.

         The Act empowers certain officeholders to choose the method of nomination used to select their party's nominee for general elections. Section 24.2-509 of the Virginia Code states in its entirety:

A. The duly constituted authorities of the state political party shall have the right to determine the method by which a party nomination for a member of the United States Senate or for any statewide office shall be made. 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.
B. Notwithstanding subsection A, the following provisions shall apply to the determination of the method of making party nominations. 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. A party shall nominate its candidates for election for a General Assembly district where there is more than one incumbent of that party for the district by a primary unless all the incumbents consent to a different method of nomination. A party, whose candidate at the immediately preceding election for a particular office other than the General Assembly (i) was nominated by a primary or filed for a primary but was not opposed and (ii) was elected at the general election, shall nominate a candidate for the next election for that office by a primary unless all incumbents of that party for that office consent to a different method.
When, under any of the foregoing provisions, no incumbents offer as candidates for reelection to the same office, the method of nomination shall be determined by the political party. For the purposes of this subsection, any officeholder who offers for reelection to the same office shall be deemed an incumbent notwithstanding that the district which he represents differs in part from that for which he offers for election.

         Subsection A sets forth the general rule: political parties are empowered to choose the method of nomination. Subsection B creates exceptions to the general rule, distinguishing between General Assembly incumbents and non-General Assembly incumbents.[5]

         The Act grants incumbents of General Assembly districts unilateral power to override their party's preferred method of nomination. For example, if the 20th House Committee prefers a convention and Delegate Bell prefers a primary, Delegate Bell could invoke his power under the Act to force a primary. The Act also provides General Assembly incumbents with the power to require their party to use a party-run nomination method such as a mass meeting, even if the party would prefer to use a state-run primary.

         The Act vests narrower authority to incumbents of non-General Assembly electoral districts, such as Representative Goodlatte of the 6th congressional district. If a non-General Assembly incumbent was nominated in the previous election cycle by a primary (or filed for a primary and was not opposed), then the political party may use a non-primary nomination method only with the incumbent's consent. So, for example, Representative Goodlatte, as a primary-nominated incumbent, could refuse consent to the 6th Congressional Committee's request to hold a convention and thereby force a primary. Unlike General Assembly incumbents, other incumbents do not have the authority under the Act to mandate a specific type of party-run nomination method-that is, Representative Goodlatte cannot force the 6th Congressional Committee to hold a convention if the Committee prefers a primary. Representative Goodlatte's power under the Act is limited to forcing a primary over the 6th Congressional Committee's request to use a non-primary method of nomination.[6]

         In this case, neither Delegate Bell nor Representative Goodlatte has exercised his power under the Act to override his party committee's preferred nomination method for an upcoming election. So, there is no present conflict between an incumbent and a committee-plaintiff. Plaintiffs contend that no such conflict is necessary to prevail on their facial challenge to the Act. Defendants take a different view. They argue that due to the absence of conflict between an incumbent and a party committee, plaintiffs lack standing. The court addresses these contentions below, along with defendants' other arguments on standing.

         On March 22, 2017, defendants filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, which the court denied in part and granted in part. The court granted the motion to the extent defendants challenged the claims brought by Yensho and Kwiatkowski as prospective candidates. The Fourth Circuit dismissed nearly identical claims pursued by a prospective candidate in 24th Senatorial Committee, 820 F.3d at 633.

         As regards the committee-plaintiffs, the court allowed them to proceed past the Rule 12(b)(1) stage and directed the parties to engage in jurisdictional discovery as to whether the committee-plaintiffs have standing to sue. In the motion to dismiss, defendants did not challenge the standing of the individual-plaintiffs or the chairman-plaintiffs. Defendants correct that apparent oversight in their summary judgment motion and seek judgment as to all plaintiffs in each of their capacities. On summary judgment, defendants argue that no plaintiff has standing, and alternatively that no plaintiff succeeds on the merits. Plaintiffs also filed a summary judgment motion seeking judgment as a matter of law. The court addressed the cross-motions at a hearing on October 26, 2017.


         Under Rule 56 of the Federal Rules of Civil Procedure, the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The court must "view the facts and draw all reasonable inferences in the light most favorable to the non-moving party." Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013).[7] "When faced with cross-motions for summary judgment, [courts] consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Bacon v. City of Richmond. Virginia, 475 F.3d 633, 637-38 (4th Cir. 2007). While passing on each motion, "the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).

         Both sides made clear at the October 26 hearing that they anticipate that the court will resolve this case on summary judgment. But if the parties are wrong and a factual dispute remains, the court must deny the motions and permit the case to go to trial. Podberesky v. Kirwan, 38 F.3d 147, 156 (4th Cir. 1994) ("The fact that both parties simultaneously are arguing that there is no genuine issue of fact does not establish that a trial is unnecessary.").[8] As set forth below, the court agrees with the parties; plaintiffs' claims are appropriately resolved on summary judgment.

         This is not the first case in which plaintiffs associated with the Republican Party of Virginia challenge the validity of the Incumbent Protection Act. In 24th Senatorial Committee, 820 F.3d 624, the Fourth Circuit dismissed a challenge to the Act for lack of standing. That decision directly relates to the claims brought here by the 20th House Committee and the individual-plaintiffs. Indeed, the court does not write on a clean slate as regards any plaintiff in this case given that the Fourth Circuit has examined the interplay between Virginia law and the Party's Plan on a number of occasions. See Marshall v. Meadows, 105 F.3d 904 (4th Cir. 1997); Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ("Miller I"): Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) ("Miller II"): Miller v. Cunningham, 512 F.3d 98 (4th Cir. 2007) ("Miller III") (Wilkinson, J., dissenting from denial of rehearing en banc). A topic common to each of those cases is justiciability, that is, whether the dispute is suitable for judicial resolution. This case is no exception.


         Article III of the Constitution limits federal court jurisdiction to "Cases" and "Controversies." U.S. Const, art. III, § 2, cl. 1. To determine if a case is justiciable, the court must ask "whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). Justiciability includes three inter-related doctrines of standing, ripeness, and mootness; however, the "doctrine that requires a litigant to have 'standing' to invoke the power of a federal court is perhaps the most important."Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by Lexmark Int'l. Inc. v. Static Control Components. Inc, 134 S.Ct. 1377 (2014).

         "To have standing, a plaintiff must demonstrate (1) he has suffered an actual or threatened injury, (2) a causal connection between the injury complained of and the challenged action, and (3) the injury can be redressed by a favorable decision." 24th Senatorial Committee. 820 F.3d at 628. "Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, Le., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). On summary judgment, the plaintiff "must set forth by affidavit or other evidence specific facts" that demonstrate standing. Lujan, 504 U.S. at 561.

         A. Standing of the Committee-Plaintiffs

         The committee-plaintiffs' claims require a deep inquiry into the standing doctrine. Both committee-plaintiffs are in the same position as regards the first element: neither is currently at odds with an incumbent over what nomination method to use in an upcoming election cycle. Defendants assert that in the absence of a fully developed conflict between an incumbent and a committee, the committees cannot show injury. In response, the committee-plaintiffs argue that the threat of incumbents invoking the Act influences campaign planning decisions well in advance of an actual conflict arising, and that this threat is sufficient injury to bring a facial challenge to the Act.

         As for the causation and redressability elements, the committee-plaintiffs are in different boats. Article V of the Party's Plan states that the 20th House Committee is permitted to select a nomination method "where permitted to do so under Virginia Law." § D(1)(a). In 24th Senatorial Committee, the Fourth Circuit concluded that this language incorporated the Act, and therefore, the alleged injury was caused by the Party's Plan, not the Act. 820 F.3d at 630-33 (dismissing a committee-plaintiff for failing to show causation element of standing). The committee-plaintiffs here argue that 24th Senatorial Committee is distinguished by new evidence: on June 27, 2015 the State Central Committee passed a resolution declaring "that the Act is not incorporated into the Party Plan." Meeting Minutes attached as Ex. 1 to Albertson Decl., ECF No. 39-2, at 14. The court must resolve the effect of this resolution in determining the 20th House Committee's standing. However, the 6th Congressional Committee presents no similar causation or redressability issues because Article IV of the Plan does not include the "where permitted to do so" language. In other words, the 6th Congressional Committee's power to select a nomination method is limited only by the Act, not the Party's voluntary choice to restrict its authority. The court now turns to examine these issues in depth.

         1. The Committee-Plaintiffs Suffer an Actual or Threatened Injury.

         To satisfy the first element of standing, the committee-plaintiffs must possess "a legally protected interest." Lujan, 504 U.S. at 560. They plainly do. The Supreme Court has long recognized that the First Amendment protects the freedom of political association. See Williams v. Rhodes, 393 U.S. 23, 30 n.6 (1968) (listing cases). Indeed, "[i]n no area is the political association's right to exclude more important than in the process of selecting its nominee." Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000). The committee-plaintiffs' claims of state interference in their "candidate-selection processes unquestionably pleads a constitutional injury." Miller I, 462 F.3d at 316. "Whether this alleged injury is actual or threatened, however, requires closer examination." Id. at 317.

         Defendants argue that the committee-plaintiffs lack an actual or threatened injury given the absence of conflict between a committee-plaintiff and an incumbent as to what nomination method to use in an upcoming election cycle.

         The "standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit Was filed." Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008). Plaintiffs filed this case on February 24, 2017. At that time, the upcoming general elections were to be held in November 2017 for the General Assembly and November 2018 for Congress. In December 2016, Delegate Bell informed the 20th House Committee that he would choose a convention as the method of nomination for the 2017 general election. See 20th House Committee Dep., ECF No. 36-1, at 23:13-19. Independent of Delegate Bell's choice, the 20th House Committee also preferred a convention. Id. at 23:22-24:1. As regards the congressional elections in 2018, neither Representative Goodlatte nor the 6th Congressional Committee had announced a preferred method of nomination before this lawsuit commenced. As such, no conflict between an incumbent and a committee-plaintiff existed at the time this case was filed.[9]

         But a plaintiff "does not have to await the consummation of threatened injury to obtain preventive relief." Babbitt, 442 U.S. at 298. He need only show "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Id; see also Davis, 554 U.S. at 734 ("A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct."). The Fourth Circuit's decision in Miller I, 462 F.3d 312, is highly instructive on this mark. Miller I involved a challenge to Virginia's "open primary" law, Va. Code Ann. § 24.2-530, which mandates that all registered voters be invited to participate in a political party's primary. In August 2004, the Republican incumbent to Virginia's 11th senatorial district, Senator Stephen Martin, announced his selection of a primary for the 2007 election cycle. In January 2005, the 11th Senatorial District Republican Committee ("11th Senatorial Committee") asked the Board of Elections to limit participation in the 2007 primary to voters who sign a pledge to the Republican Party. The Board refused to implement the pledge requirement, citing Virginia's open primary mandate, Va. Code Ann. § 24.2-530.

         Defendants do not contend that a plaintiff challenging the Act must wait until a formal conflict arises after the statutory deadlines. Rather, defendants argue that an incumbent and a party committee need to at least announce their intentions to select different methods of nomination for an upcoming cycle. At that point, defendants recognize a committee-plaintiff would suffer an injury adequate to sue. See Miller I, 462 F.3d 312 (party committee's expressed desire for a closed primary for an election cycle nearly two years away provided sufficient injury to challenge Virginia's open primary law). Plaintiffs argue in response that no such circumstances are necessary. This is especially so, according to plaintiffs, given how rare incumbents announce their selection before the statutory reporting deadlines: incumbents are incentivized to wait as long as possible to invoke their rights under the Act. By waiting until the deadline, incumbents maximize the uncertainty as to what nomination method will be used, and that uncertainty may scare off potential challengers. See Jenkins Decl., ECF No. 39-27, at 8-9. Therefore, incumbents realize their full power under the Act by keeping quiet until the statutory deadline. See id. For the reasons stated herein, the court agrees with plaintiffs in determining that an incumbent and a committee need not announce contradictory preferences for nomination methods for a committee to have standing to challenge the Act.

         The 11th Senatorial Committee and its chairman filed suit in early 2005, asking the court to declare the open primary law unconstitutional. The district court dismissed the case, explaining in part that "Senator Martin could conceivably change his mind about seeking reelection between now and the official date of declaration of candidacy." Miller v. Brown, 394 F.Supp.2d 794, 799 (E.D. Va. 2005), rev'd and remanded, 462 F.3d 312 (4th Cir. 2006). The district court determined that the 11th Senatorial Committee lacked standing and that the case was not ripe.

         The Fourth Circuit reversed those rulings, recognizing that the open primary law "dramatically changes the plaintiffs' decisions about campaign financing, messages to stress, and candidates to recruit" well before a given election cycle formally commences. Miller I, 462 F.3d at 317. "Because campaign planning decisions have to be made months, or even years, in advance of the election to be effective, the plaintiffs' alleged injuries are actual and threatened." Id. at 317-18. Accordingly, the court found that the "mere existence of the open primary law causes these decisions to be made differently than they would absent the law, " and remanded for resolution on the merits. Id. at 318.

         Defendants attempt to distinguish Miller I on the basis that the facts in that case presented a more teed-up controversy than the dispute here. Indeed, the conflict in Miller T was apparent: the 11th Senatorial Committee asked for a closed primary and the Board of Elections refused. In this case, neither committee-plaintiff is sparring with an incumbent or with the Board as to what nomination method to use in an upcoming election.

         In situations such as these, where a challenge to a statute does not arise from its active enforcement, courts often look to the general enforcement history of the statute in determining whether a plaintiffs rights are sufficiently threatened. See, e.g., Davis, 554 U.S. at 734 (considering enforcement of the challenged campaign finance law against candidates not party to the suit in determining that the plaintiff had standing despite lack of pending enforcement action against the plaintiff); S.F. Cty. Democratic Cent. Comm. v. Eu, 826 F.2d 814, 823 (9th Cir. 1987) (party-plaintiffs history of compliance with the challenged election law did not undermine the party's standing), affd, 489 U.S. 214 (1989). Although "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief[J ... past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury." O'Shea v. Littleton, 4l4 U.S. 488, 495-96 (1974).

         Plaintiffs have identified over 100 instances in which incumbents have invoked their power under the Act in recent election cycles. See 2015 State Senate SBE-509 Forms, ECF No. 39-28; 2013 House of Delegates SBE-509 Forms, ECF No. 39-29; 2016 Rep. Goodlatte SBE-509 Form, ECF No. 39-24; 2016 6th Congressional Committee SBE-516 Form, ECF No. 39-26 (indicating that the "incumbent of my party, is seeking re-election and has designated the method of nomination ... [as a] primary"); 2016 11th Congressional District Democratic Committee SBE-516 Form, ECF No. 39-18 (same).[10] Indeed, the incumbents associated with the committee-plaintiffs invoked the Act in their most recent election cycles. See 2016 Rep. Goodlatte SBE-509 Form, ECF No. 39-24; 20th House Committee Dep., ECF No. 36-1, at 23:13-19. And the Department has uniformly enforced the incumbents' selected nomination method. See Cortes Dep., ECF No. 39-7, at 31:1-32:15. The threat of an incumbent invoking the Act is therefore "a realistic danger, " far from "imaginary or speculative." Babbitt. 442 U.S. at 298.

         Defendants argue that an incumbent's use of his power under the Act is of no moment if his selected method of nomination does not contradict his committee's selected method. For example, in both 2015 and 2017 Delegate Bell and the 20th House Committee independently chose a convention. 20th House Committee Dep., ECF No. 36-1, at 23:22-24:3.[11] And since at least 2012, the 6th Congressional Committee has not selected a method of nomination, but instead deferred to Representative Goodlatte's choice. See 6th Congressional Committee Meeting Agendas and Minutes, Jan. 2012-May 2017, ECF Nos. 43-1, 43-2 (no mention of nomination methods); 6th Congressional Committee Dep., ECF No. 45-2, at 67:2-3 (the Committee "wait[s] for the congressman to tell us which method he has determined [that] we will follow."). Defendants argue that for the committee-plaintiffs to have the requisite injury, they must openly oppose their incumbent's choice for a nomination method.

         In response, the committee-plaintiffs argue that whether the incumbent's choice ultimately matches the committee-plaintiffs selection is irrelevant. They contend that the Act harms their associational rights long before an incumbent selects a nomination method for an ensuing election. Professor Jeffery Jenkins, an expert witness sponsored by plaintiffs, illustrates the ways in which the Act affects campaign planning decisions before it is formally invoked. See Jenkins Decl., ECF No. 39-27. Jenkins notes that each of the four nomination methods available under the Plan "create[s] a different distribution of potential voters (or decision makers) in the nomination process." Id. at 7-8. For example, primaries involve the largest pool of potential voters, whereas conventions and mass meetings "lend themselves more toward 'committed partisans.'" Id. at 8-9. Given these variations, the Act allows incumbents "to assess how they would perform under different nomination methods and choose the one that they believe maximizes their chances of reelection." Id. at 9. Therefore, even before an incumbent invokes the Act, candidates challenging the incumbent "have to potentially prepare for (and qualify for) four different nomination methods." Id. at 9 n.5. Jenkins states that "the mere existence of the Act may add ... uncertainty for potential high-quality challengers (and the staff, volunteers, and donors who would consider committing to their campaign)." Id. at 9.

         Jenkins' conclusions are borne out in the testimony of the 20th House Committee and 6th Congressional Committee chairmen. Fitzgerald, as the 20th House Committee's chairman, described the "big differences" among the various methods of nomination, includng the stricter qualifications indviduals must have to participate in party-run events compared to the qualifications applicable to primary voters. 20th House Committee Dep., ECF No. 39-4, at 27:5, 33:23-34:3. She stated that the 20th House Committee "really, fundamentally, believes that it should be the right of the party to designate the way that we nominate our members." Id. at 45:22-25. Robert Sayre, chairman of the 6th Congressional Committee, testified that candidates for the 6th congressional district begin their campaign efforts before a nomination method is announced. 6th Congressional Committee Dep., ECF No. 45-2, at 32:16-25. He also stated that because of the Act, no one knows what nomination method will govern until the incumbent makes a selection: "[t]he committee position is we wait for the congressman to tell us which method he has determined [that] we will follow." Id. at 67:1-3.[12] In fact, members of the 6th Congressional Committee have discussed efforts to repeal or invalidate the Act on numerous occasions since 2012. See Meeting Minutes, ECF No. 39-6, at 55, 66, 72, 82.

         The uncontroverted testimony from Jenkins and the committee chairmen shows that the Act need not be formally invoked to affect the campaign planning decisions of the committee-plaintiffs. In light of the fact that incumbents are not shy to exercise their power under the Act, the committee-plaintiffs must account for the ever-present threat that their preference for a particular nomination method will be rejected by their incumbent officeholders. Defendants do not challenge the accuracy of these facts, but merely argue these circumstances do not qualify as an injury for standing purposes. The court disagrees.

         The committee-plaintiffs' uncertainty as to what method will control the nomination of their general election candidates for upcoming elections is sufficient injury to demonstrate standing. This is so regardless of whether a committee ultimately agrees with its incumbent's choice of a nomination method- The committee-plaintiffs have demonstrated that the uncertainty caused by the Act "dramatically changes the plaintiffs' decisions about campaign financing, messages to stress, and candidates to recruit... months, or even years, in advance of the election." Miller I, 462 F.3d at 317-18. That uncertainty is palpable given the Act's repeated invocation by incumbents and enforcement by defendants. Therefore, the committee-plaintiffs demonstrate a real, immediate, and direct threat to their constitutional rights of free association, and thus satisfy the first element of standing.

         2. The 6th Concessional Committee Demonstrates Causation and Redressabi/ity, but ...

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