United States District Court, W.D. Virginia, Harrisonburg Division
ANNE T. FITZGERALD, et al., Plaintiffs,
JAMES B. ALCORN, et al.. Defendants.
Michael F. Urbanski, Chief United States District Judge
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.
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.
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.
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. 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.
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. 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.
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. 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
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
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.
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.
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
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
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.
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
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.
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.
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
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). "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).
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."). As set forth below, the court agrees with
the parties; plaintiffs' claims are appropriately
resolved on summary judgment.
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
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).
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.
Standing of the Committee-Plaintiffs
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.
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.
The Committee-Plaintiffs Suffer an Actual or Threatened
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.
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.
"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.
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. §
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.
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
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
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.
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).
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). 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.
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. 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
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.
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. 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.
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.
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.
The 6th Concessional Committee Demonstrates Causation and
Redressabi/ity, but ...