Fitzgerald v. Alcorn

Decision Date19 January 2018
Docket NumberCase No. 5:17–cv–16
Citation285 F.Supp.3d 922
Parties Anne T. FITZGERALD, et al., Plaintiffs, v. James B. ALCORN, et al., Defendants.
CourtU.S. District Court — Western District of Virginia

John Charles Wirth, Nelson, McPherson, Summers & Santos, Charles Frank Hilton, Wharton, Aldhizer & Weaver, PLC, Staunton, VA, Jeffrey Robert Adams, Thomas E. Ullrich, Wharton Aldhizer & Weaver, PLC, Harrisonburg, VA, for Plaintiff.

Anna Tillie Birkenheier, Matthew Robert McGuire, Trevor Stephen Cox, Office of the Attorney General Richmond, VA, for Defendant.

MEMORANDUM OPINION

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.

I.

The Incumbent Protection Act (the "Act"), Va. Code Ann. § 24.2–509(B), affects each of the five plaintiffs in distinct ways. Indeed, each plaintiff's 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 "Party"), 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 currently 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...

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2 cases
  • 6th Cong. Dist. Republican Comm. v. Alcorn
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 9, 2019
    ...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 con......
  • League of Women Voters of Va. v. Va. State Bd. of Elections
    • United States
    • U.S. District Court — Western District of Virginia
    • May 5, 2020
    ...Wisc. Apr. 2, 2020) (applying Anderson - Burdick test in evaluating a similar witness signature requirement); Fitzgerald v. Alcorn , 285 F. Supp. 3d 922, 948 (W.D. Va. 2018).The Supreme Court has made clear that it has not identified any "litmus test for measuring the severity of a burden t......

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