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6th Congressional District Republican Committee v. Alcorn

United States Court of Appeals, Fourth Circuit

January 9, 2019

JAMES B. ALCORN, in his official capacity as Chairman of the Virginia State Board of Elections; CLARA BELLE WHEELER, in her official capacity as Vice-Chairman of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her official capacity as Secretary of the Virginia State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS, Defendants - Appellants. and ANNE TAETZSCH FITZGERALD, individually and as Chairman of the 20th House of Delegates District Republican Committee; KAREN U. KWIATKOWSKI, individually; EDWARD A. YENSHO, individually and as Chairman of the Green County Republican Committee; 20TH HOUSE OF DELEGATES DISTRICT REPUBLICAN COMMITTEE, Plaintiffs,

          Argued: December 12, 2018

          Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:17-cv-00016-MFU-JCH)


          Toby Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.

          Jeffrey R. Adams, WHARTON, ALDHIZER & WEAVER, PLC, Harrisonburg, Virginia, for Appellee.

         ON BRIEF:

          Mark R. Herring, Attorney General, Stephen A. Cobb, Deputy Attorney General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.

          Charles F. Hilton, Thomas E. Ullrich, Lucas I. Pangle, WHARTON ALDHIZER & WEAVER, PLC, Harrisonburg, Virginia; John C. Wirth, NELSON MCPHERSON SUMMERS & SANTOS, Staunton, Virginia, for Appellee.

          Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

         Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Motz and Judge Duncan joined.


         The 6th Congressional District Republican Committee argues that Virginia's Incumbent Protection Act, Va. Code Ann. § 24.2-509(B), violates the First Amendment of the Constitution. The district court agreed and enjoined § 24.2-509(B) in its entirety. For the reasons that follow, we now affirm.



         Virginia law generally allows the Commonwealth's political parties considerable discretion in deciding how to nominate their candidates for office. Section 24.2-509(A) empowers the "duly constituted authorities" of the state and local parties "to determine the method by which a party nomination . . . shall be made." The parties make use of this latitude. For example, the Republican Party of Virginia, with whom the appellee here is affiliated, allows for four different methods of nomination: a primary, a party canvass, a convention, and a mass meeting. Fitzgerald v. Alcorn, 285 F.Supp.3d 922, 927 (W.D. Va. 2018). Under the Party's Plan of Organization, committees established in every locality, state legislative district, and congressional district are empowered to choose among these methods to nominate candidates for their political subdivision. J.A. 37, 38, 40.

         The differences between these methods are substantial. Each one "'create[s] a different distribution of potential voters (or decision makers) in the nomination process.' For example, primaries involve the largest pool of potential voters, whereas conventions and mass meetings 'lend themselves more toward committed partisans.'" Alcorn, 285 F.Supp.3d at 935 (quoting J.A. 884-85, 885-86). The choice of method, therefore, could have a significant influence on the choice of nominee.

         Subsection 24.2-509(B), often called the Incumbent Protection Act, however, limits the broad authority recognized by subsection A.[1] The second and third sentences apply to those subdivisions of the state party that select nominees for candidates to the General Assembly. Those sentences allow incumbent members of the General Assembly who are running for reelection, where there is only one incumbent, to "designate[]" the method of nomination they prefer. Under this statute, the wishes of the party are immaterial; no matter where the party's plan of organization may vest the power to choose nomination methods, the law trumps, granting the power to the incumbent.

         The fourth sentence of the Act applies to those components of political parties that make the nominations for "particular office[s]" other than for the General Assembly, including nominations for the U.S. House of Representatives. In these races, the incumbent officeholder may insist that his or her party use a primary as its nomination method as long as (1) the incumbent was selected by primary in the previous election cycle and (2) the incumbent is running for reelection. Again, the statute trumps the party's plan of organization, which, in this case allows the committees responsible for congressional nominations to choose between the approved methods (excluding mass meetings) without interference by the incumbent, J.A. 37.

         The Virginia Department of Elections, however, has not always respected the distinction made between the second and third sentences on the one hand, and the fourth sentence on the other. In the 2016 and 2017 election cycles, for example, the Department promulgated forms that allowed non-General Assembly incumbents to "designate" their preferred method of nomination as if their elections were governed by the second and third sentences. After the commencement of this litigation, and only after the appellees pointed out the mistake, the Department issued new forms that applied the fourth sentences to these races.

         Virginia has not identified a single other state that has a statute like the Incumbent Protection Act, and this is not the first case to consider a constitutional challenge to it. In 2007, for example, this court considered a challenge to the Act. Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) ("Miller II"). There, we held that an incumbent cannot constitutionally force his or her party to use an open primary, as this would be an impermissible burden on the party's associational rights. Id. at 368-71. We did not, however, reach the different question of the constitutionality of incumbents' statutory power to dictate any nomination method.


         This appeal stems from the 6th Congressional District Republican Committee's challenge to the Incumbent Protection Act under 42 U.S.C. § 1983. See Alcorn, 285 F.Supp.3d at 922. The Committee is responsible for nominating candidates for the U.S. House of Representatives for the 6th Congressional District, which "covers much of the west-central portion of Virginia, from Roanoke to Front Royal." Id. at 927. Under the Party's Plan of Organization, it is composed of the "District Chairman," the "Unit Chairman" (the chair of each relevant locality's committee), the "District Representative of the Virginia Federation of Republican Women," the "Young Republican Federation District Committeeman," the "College Republican Federation District Committeeman," and the "District members of the State Central Committee." J.A. 36-37. The Committee, along with other plaintiffs who were dismissed from the suit and do not appeal, raised facial and as applied challenges to the Incumbent Protection Act, claiming that it abridged their rights under the First and Fourteenth Amendments of the U.S. Constitution. The named defendants include the Virginia Department of Elections and the three members of the Virginia State Board of Elections at the time the suit was filed. Alcorn, 285 F.Supp.3d at 928.

         The district court, relying on Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ("Miller I"), found that the Committee had standing to challenge the Act. Alcorn, 285 F.Supp.3d at 937. It then proceeded to evaluate the burden posed by § 24.2-509(B) on the Committee's associational rights, concluding that it was "severe" because it provided "incumbents with a statutory right to dictate political parties' internal affairs . . . ." Id. at 952. The burden was "especially" onerous because it trespassed on the "realm of selecting candidates." Id. Given the magnitude of the burden, the district court found that "the Act can survive constitutional scrutiny only if it is 'narrowly tailored to advance a compelling state interest.'" Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). The district court ultimately concluded that the Act did not survive such scrutiny. Id. at 953.

         The district court thus permanently enjoined enforcement of the entire Incumbent Protection Act on January 19, 2018. J.A. 1473. The court enjoined all six sentences of § 24.2-509(B) because, according to the court, the second and third sentences-which protect the nomination prerogatives of incumbent General Assembly members-could not be severed from the fourth-which protects the nomination prerogatives of, inter alia, members of Congress. The court additionally found that the Committee had standing to challenge the second and third sentences under the overbreadth doctrine. Alcorn, 285 F.Supp.3d at 955. Finally, the district court concluded that the Act had "no legitimate sweep" and so a facial challenge to all its provisions was appropriate. Id. at 955-56. After the notice of appeal had been filed, the district court stayed its permanent injunction order on February 5, 2018, to avoid interfering with the ongoing nomination cycle. J.A. 1481. After that cycle concluded, however, the district court vacated its stay on September ...

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