Miller v. Brown
| Citation | 503 F.3d 360 |
| Decision Date | 01 October 2007 |
| Docket Number | No. 07-1002.,No. 06-2334.,06-2334.,07-1002. |
| Parties | Larry MILLER; 11th Senatorial District Republican Committee, Plaintiffs-Appellees, v. Michael BROWN, in his official capacity as Chairman of the Virginia State Board of Elections; Barbara Hildenbrand, in her official capacity as Vice-Chairman of the Virginia State Board of Elections; Jean Jensen, in her official capacity as Secretary of the Virginia State Board of Elections, Defendants-Appellants. Republican Party of Virginia, Amicus Supporting Appellees. Larry Miller; 11th Senatorial District Republican Committee, Plaintiffs-Appellants, v. Michael Brown, in his official capacity as Chairman of the Virginia State Board of Elections; Barbara Hildenbrand, in her official capacity as Vice-Chairman of the Virginia State Board of Elections; Jean Jensen, in her official capacity as Secretary of the Virginia State Board of Elections, Defendants-Appellees. Republican Party of Virginia, Amicus Supporting Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Frank Snead Ferguson, Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/Cross-Appellees. Kenneth Thomas Cuccinelli, II, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia, for Appellees/Cross-Appellants. ON BRIEF: Robert F. McDonnell, Attorney General of Virginia, William E. Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solicitor General, William C. Mims, Chief Deputy Attorney General, Maureen Riley Matsen, Deputy Attorney General, J. Jasen Eige, Senior Assistant Attorney General, James V. Ingold, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/CrossAppellees. Christopher M. Day, Paul A. Prados, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia; Patrick M. McSweeney, Wesley G. Russell, Jr., Jeffrey L. Cimbalo, McSweeney, Crump, Childress & Gould, P.C., Richmond, Virginia, for Appellees/CrossAppellants. Louis N. Joynes, II, Joynes & Gaidies, Virginia Beach, Virginia, for Amicus Supporting Appellees/Cross-Appellants.
Before DUNCAN, Circuit Judge, and WIDENER1 and WILKINS, Senior Circuit Judges.
Affirmed by published opinion. Senior Judge WILKINS wrote the opinion, in which Judge DUNCAN joined.
Three officials of the Virginia State Board of Elections (collectively, "the Board") appeal a district court order holding that Virginia's open primary law, Va. Code Ann. § 24.2-530 (2006), is unconstitutional as applied to the 11th Senatorial District Republican Committee and its chairman, Larry Miller,2 and enjoining the Board from requiring the Committee to hold an open primary in Virginia's 11th Senatorial District in 2007. The Committee cross-appeals another portion of that order holding that § 24.2-530 is not facially unconstitutional. For the reasons that follow, we affirm the district court order in its entirety.
On June 4, 2004, the Republican Party of Virginia amended its Plan of Organization (Plan) to allow its affiliated committees, of which the Committee is one, to exclude from the Republican nomination process any voter who participated in the nomination process of another party in Virginia "after March 1, 2004, or in the last five years, whichever is more recent." J.A. 20. The Plan provides an exception for voters who, in writing, renounce their affiliation with any other party, indicate their agreement with Republican Party principles, and express their intent to support Republican nominees. The amended Plan became effective on June 15, 2006.
The Committee oversees the nomination process for the Republican candidate for the 11th District seat in the Senate of Virginia. Stephen Martin, a Republican, currently holds the seat and is running for reelection this year. Under Virginia law, an incumbent state legislator is entitled to select the method of nomination for his seat. See Va.Code Ann. § 24.2-509(B) (2006). Virginia allows nomination of candidates not only by a primary—which is conducted and funded by the state—but also "by methods other than a primary." Va.Code Ann. § 24.2-510 (2006)0005. Such other methods, which are conducted and funded by the party, include (but are not limited to) a party convention, see Va. Code Ann. § 24.2-508(ii) (2006); a mass meeting, also known as a "caucus"; and a party canvass or unassembled caucus, also called a "firehouse primary."3
In August 2004, Senator Martin designated a primary as the method of nomination in the 11th District for the 2007 election. In accordance with Senator Martin's designation, the Committee, on January 13, 2005, formally recognized that a primary would be used to select its nominee. Consistent with the amendments to the Plan, the Committee chose to exclude voters who had voted in a Democratic Party primary between March 1, 2004, and June 12, 2007 (the date of the Republican primary), except those voters who complied with the written "loyalty" requirements of the Plan. In a letter dated January 17, 2005, Miller informed the Board of the Committee's decision. His letter requested "written confirmation . . . of the [Board's] intention to implement the above-noted restrictions on the participation by Democrats in our primary." J.A. 42.
On February 9, 2005, the Board's Secretary, Jean R. Jensen, replied to Miller by letter. Jensen stated that the Committee could take whatever action it deemed appropriate under the Plan. Jensen noted, however, that the only provision of Virginia law allowing political parties to restrict primary voters' eligibility was the statute governing presidential primaries. See Va. Code Ann. § 24.2-545(A) (2006). Further, Jensen cited Virginia's open primary law, Va.Code Ann. § 24.2-530, which provides:
All persons qualified to vote, pursuant to [Va.Code Ann.] §§ 24.2-400 through 24.2-403, may vote at the primary. No person shall vote for the candidates of more than one party.
Jensen explained that unless the Committee could "point to a specific provision" of Virginia election law authorizing the Board to restrict voting in the 2007 11th District primary, the Board would "have to comply with the law of the Commonwealth in effect at that time."4 J.A. 45.
The Committee subsequently brought this action against the Board under 42 U.S.C.A. § 1983 (West 2003), seeking a declaration that § 24.2-530 violates the Committee's First and Fourteenth Amendment right of free association. The Board moved to dismiss, arguing, inter alia, that the Committee lacked standing and that the case was not yet ripe. The district court granted the Board's motion to dismiss on standing and ripeness grounds. See Miller v. Brown, 394 F.Supp.2d 794, 802-03 (E.D.Va.2005). We reversed, holding that the Committee possessed standing and that the case was ripe. See Miller v. Brown, 462 F.3d 312, 316-21 (4th Cir. 2006). We thus remanded for "consideration of the merits." Id. at 321.
On remand, the Committee moved for summary judgment, arguing that § 24.2-530 was unconstitutional on its face and as applied to the Committee. The Committee also moved for a permanent injunction prohibiting enforcement of the statute. After a hearing, the district court held that the open primary law was not facially unconstitutional because Virginia law permitted other methods of nomination under which a political party could restrict participation in its nominating process to voters who share its political beliefs. See Miller v. Brown, 465 F.Supp.2d 584, 592-93 (E.D.Va.2006). Regarding the as-applied challenge, however, the court determined that § 24.2-530 severely burdened the Committee's associational rights because Senator Martin's selection of a primary as the method of nomination forced the Committee to use a nomination process that prevented it from excluding voters with whom it did not wish to associate. See id. at 594. The court further held that the Board had provided no compelling state interest justifying this burden. See id. at 594-95. The court thus concluded that § 24.2-530 was unconstitutional as applied to the Committee. See id. at 595. Accordingly, the court enjoined the Board from requiring the Committee to hold an open primary in 2007. See id. On the Board's motion, the district court stayed the injunction pending the outcome of this appeal. See id. at 597.
We review de novo the district court rulings concerning the constitutionality of § 24.2-530.5 See United States v. Fulks, 454 F.3d 410, 437 (4th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3002, ___ L.Ed.2d ___ (2007). In considering a constitutional challenge to a state election law, "we first examine whether [the law] burdens rights protected by the First and Fourteenth Amendments." Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). If the law at issue "burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest and is narrowly tailored to serve that interest." Id. (citations omitted).
We first address the Committee's claim that the open primary law is facially unconstitutional. The Committee argues that § 24.2-530 impermissibly burdens the right of political parties to associate freely with others who share their political beliefs. The Committee contends that by requiring a party to include in its primary voters who may not share its views, the open primary law alters the party's candidate selection process and the political message that the party conveys to the public.
The Supreme Court has made clear that "the First Amendment protects `the freedom to join together in furtherance of common political beliefs.'" Cal. Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 214, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)). In particular, the...
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