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
matter is before the court on Defendants' Motion for Stay
Pending Appeal. ECF No. 62. Both parties have filed memoranda
of law in support of their respective positions. The court
dispenses with oral argument because the facts and legal
contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
For the reasons stated below, the court will
GRANT Defendants' motion for a stay of
the injunction pending appeal.
January 19, 2018, the court declared Virginia's Incumbent
Protection Act, Va. Code Ann. § 24.2-509(B), facially
unconstitutional because the Act contravenes the First
Amendment rights of political parties and their committees.
Summ. J. Order, ECF No. 57. The court enjoined the Virginia
Department of Elections and members of the Virginia Board of
Elections from enforcing the Incumbent Protection Act in an
order entered on the same day. Permanent Inj. Order, ECF No.
58. Defendants, Virginia election officials, now, ask the
court for a stay pending their appeal under Federal Rule of
Civil Procedure 62(c), contending that a stay is necessary to
avoid disruption of Virginia's administration of the 2018
elections. Mot. for Stay Pending Appeal, ECF No. 62.
requesting a stay must demonstrate "(1) that he will
likely prevail on the merits of the appeal, (2) that he will
suffer irreparable injury if the stay is denied, (3) that
other parties will not be substantially harmed by the stay,
and (4) that the public interest will be served by granting
the stay." Long v. Robinson. 432 F.2d 977, 979
(4th Cir. 1970); see also Nken v. Holder, 556 U.S.
418, 433 (2009). "Since the traditional stay factors
contemplate individualized judgments in each case, the
formula cannot be reduced to a set of rigid rules."
Hilton v. Braunskill. 481 U.S. 770, 777 (1987).
weighing the balance of these factors, the court finds itself
much in the same posture as the Eastern District of Virginia
in an earlier election law case in which a stay of an
injunction pending appeal was sought. In Project
Vote/Voting for America. Inc. v. Long. 275 F.R.D. 473,
474 (E.D. Va. 2011), the Eastern District noted:
The court is not persuaded to tacitly abandon its ruling and
find that the defendants are likely to succeed on appeal.
However, as the case is one of first impression that touches
on matters of substantial national importance, there is
certainly a "substantial case on the merits."
[Hilton], 481 U.S. at 778. Accordingly, if the other
factors militate in favor of a stay, the court may issue one.
See id.: see also Miller v. Brown, 465
F.Supp.2d 584, 596 (E.D. Va. 2006), aff'd, 503 F.3d 360
(4th Cir. 2007).
Similarly, in Miller v. Brown, the court explained,
"[w]hile the Court cannot say that Defendants are likely
to prevail in their appeal, the Court does recognize that
this case raises an issue of first impression." 465
F.Supp.2d at 596.
action, the court's decision addressed complex issues of
justiciability, and invalidated a statute guiding political
parties' processes for nominating candidates in the
Commonwealth. The statute at issue is unique in our nation,
and gives incumbents in Virginia substantial power over how
their political parties choose candidates for public office.
The constitutionality of this statute has been the subject of
much debate and prior litigation. See 24th
Senatorial Dist. Republican Comm. v. Alcorn. 820 F.3d
624 (4th Cir. 2016); Miller v. Cunningham. 512 F.3d
98 (4th Cir. 2007) (Wilkinson, J., dissenting from denial of
rehearing en banc). At least as to the issue of
justiciability, the appeal presents "a substantial case
on the merits." Hilton, 481 U.S. at 778. While
the court remains unconvinced of the likelihood of
Defendants' success on appeal, a stay could be
appropriate if the remaining factors militate in favor of
maintaining the status quo. See id.
party claims injury if its position on the stay is unheeded.
Defendants argue that the injunction will wreak havoc because
party officials must begin to make 2018 election decisions in
the next few days, well before the Fourth Circuit Court of
Appeals could rule on the justiciability of this dispute. As
was the case in Miller v. Brown. "Defendants
are correct that the injunction does create at least some
confusion and uncertainty in the nomination process and may
eventually require a legislative change." 465 F.Supp.2d
at 596. On the other hand, Plaintiffs argue that Defendants,
state election officials, cannot be harmed by the issuance of
an injunction preventing enforcement of an unconstitutional
law. See Giovani Carandola. Ltd. v. Bason. 303 F.3d
507, 521 (4th Cir. 2002). Each of these arguments has merit,
requiring the court to "weigh the public interest, which
is the determining factor in this case." Miller v.
Brown. 465 F.Supp.2d at 596.
balance, the court finds a stay to be appropriate here. Party
chairpersons may begin to report their methods for selecting
candidates for the 2018 election in two
days. As such, a stay pending appeal will
mitigate the likelihood of confusion during the nomination
process. A stay also will alleviate any concerns as to
whether party chairpersons received notice of and understand
the effect of the court's injunction. See Reynolds v.
Sims, 377 U.S. 533, 585 (1964) ("In awarding or
withholding immediate relief, a court is entitled to and
should consider the proximity of a forthcoming election and
the mechanics and complexities of state election laws, and
should act and rely upon general equitable
Eastern District of Virginia noted in Miller v.
[A] stay pending a decision from the Fourth Circuit will give
Virginia's General Assembly time to contemplate any
remedial legislation it believes to be appropriate and ensure
its conformity with . . . the First Amendment . . . without
the prospect of modification later by a higher court
decision. A stay will also give the State Board of Elections
time to implement new procedures that may be required and to
communicate those procedures to the stakeholders in
Virginia's political process.
465 F.Supp.2d at 597. Given the election decisions that need
to be made as early as this Wednesday for the 2018 election
cycle, the court finds that the public interest in avoiding
confusion in the impending nominating process weighs in favor
of granting a stay pending appeal.
these reasons, the court will GRANT