6TH CONGRESSIONAL DISTRICT REPUBLICAN COMMITTEE, Plaintiff - Appellee,
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
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)
Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellants.
Jeffrey R. Adams, WHARTON, ALDHIZER & WEAVER, PLC,
Harrisonburg, Virginia, for Appellee.
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.
WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
by published opinion. Judge Wilkinson wrote the opinion, in
which Judge Motz and Judge Duncan joined.
WILKINSON, CIRCUIT JUDGE.
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
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.
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.
24.2-509(B), often called the Incumbent Protection Act,
however, limits the broad authority recognized by subsection
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
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.
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.
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
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.
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.
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 ...