Parson v. Alcorn
| Decision Date | 15 January 2016 |
| Docket Number | Civil Action No. 3:16cv13 |
| Citation | 157 F.Supp.3d 479 |
| Parties | Stephen A. Parson, Sr., Leon Benjamin, and Bruce L. Waller, Sr., Plaintiffs, v. 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-Chair of the Virginia State Board of Elections; Singleton B. McAllister, in her official capacity as Secretary of the Virginia State Board of Elections; and, The Republican Party of Virginia, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Chester Leonard Smith, Law Office of Chester Smith, Virginia Beach, VA, for Plaintiffs.
M. Hannah Lauck
This matter comes before the Court on Plaintiffs Stephen A. Parson, Sr., Leon Benjamin, and Bruce L. Waller, Sr.'s Motion for Preliminary Injunction. (ECF No. 3.) On January 11, 2016, Defendants James B. Alcorn, Clara Belle Wheeler, and Singleton McAllister, in their official capacities as officers of the Virginia State Board of Elections, responded. (ECF No. 14.) On January 12, 2016, Plaintiffs replied. (ECF No. 16.) On January 13, 2016, the Court heard oral argument. Accordingly, the matter is ripe for disposition. This Memorandum Opinion expounds upon the ruling as set forth in the January 14, 2016 Order. (ECF No. 24.)
To set the stage for the present action, the Court provides an overview of the various avenues political parties can use to select a presidential nominee. The Court then turns to the system established in Virginia.
In Virginia, as in states across the country, political parties have the power to “provide for the nomination of ... candidates” for elected office. Va. Code § 24.2-508
. Parties have many options by which they effectuate such nomination, especially, and related to this case, for candidates for the presidency of the United States. Va. Code § 24.2-545(A) (). Options “include (but are not limited to) a party convention; a mass meeting, also known as a ‘caucus'; and a party canvass or unassembled caucus, also known as a ‘firehouse primary.’ ” Miller v. Brown, 503 F.3d 360, 362 (4th Cir.2007) (citations and footnote omitted).
An additional method of nomination, commonly used and at issue in this case, is a primary. Three principal types of primaries exist: closed,2 semiclosed,3 and open.4 By statute, Virginia usually holds entirely open primaries. This is unlike most states, which require party identification in some form of closed primary.5 In most Virginia elections, Va. Code § 24.2-530
.
If the party chooses to proceed by primary, the Commonwealth funds the primary and the SBE administers it. Miller, 503 F.3d at 362
. When the SBE manages a primary election, the Code of Virginia tasks the SBE with broad discretion to “supervise and coordinate [local electoral boards and registrars] to obtain uniformity in their practices and proceedings and legality and purity in all elections” and to “make rules and regulations ... to promote the proper administration of election laws.” Va. Code § 24.2-103(A). Political parties, however, retain considerable input in the primary process. In a presidential primary, subject to the statutory mandate that “each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party,” the Code allows the party to “set requirements ... for participation in its presidential primary.” Va. Code § 24.2-545(A). Such requirements must “be determined at least 90 days prior to the primary date and certified to, and approved by, the [SBE].” Va. Code 24.2-545(A). Additional deadlines impact the primary. For example, under the Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20302(a)(8),6 the Commonwealth must send absentee ballots to overseas citizens, including military personnel, not later than 45 days prior to an election.7
On November 24, 2015, the RPV filed with the SBE its proposed requirements for the 2016 presidential primary. (Defs.' Resp. 2, ECF No. 14.) Among other proposals, the RPV sought to enclose a document with each ballot stating the following:
.) Blank lines for a signature and printed name follow the proposed language. (Id. ) An asterisk indicates that these lines are required. (Id. ) Lines for email address and phone number are included, but because they lack an asterisk, responses do not appear to be required.
On December 16, 2015, the SBE held a meeting during which it considered a version of the RPV proposal as transcribed onto a state form by state personnel. Agency personnel added language to the form and cited Section 24.2-545(A)
. Virginia Commissioner of Elections Edgardo Cortes testified in this Court that agency personnel added a notice that “[a]ny voter refusing to sign the statement form cannot vote in this Republican Party nominating process” in order to keep the form consistent with earlier forms created by the SBE.8 The proposed form, entered as Defendants' Exhibit 2, stated:
Commonwealth of Virginia Republican Presidential Primary Tuesday, March 1, 2016 NOTICE TO VOTER Section 24.2-545 of the Code of Virginia allows the political party holding a primary to determine requirements for voting in the primary. The [RPV] has determined that the following pledge shall be a requirement of your participation. Any voter refusing to sign the statement form cannot vote in this Republican Party nominating process. STATEMENT My signature below indicates that I am a Republican. ______________________________ ________________________________ Signature of Voter* Printed Name of Voter* ______________________________ ________________________________ Email Address Phone *Required
(Jan. 13, 2016 Hr'g Defs.' Ex. 2.)
After a representative of the RPV commented during the December 16 SBE meeting that the voter document language was a statement and not a pledge, the SBE unanimously approved an amended form that replaced the word “pledge” with “statement.” (Jan. 13, 2016 Hr'g Defs.' Ex. 3.) The SBE approved a final version of the voter document language (the “Statement”).9 The final statement, first publically released on December 16, reads as follows:
Commonwealth of Virginia Republican Presidential Primary Tuesday, March 1, 2016 NOTICE TO VOTER Section 24.2-545 of the Code of Virginia allows the political party holding a primary to determine requirements for voting in the primary. The [RPV] has determined that the following statement shall be a requirement of your participation. Any voter refusing to sign the statement form cannot vote in this Republican Party nominating process.10 STATEMENT My signature below indicates that I am a Republican.
____________________________________________________________________
Signature of Voter* Printed Name of Voter*
____________________________________________________________________
Email Address Phone *Required [Editor's Note: The preceding image contains the reference for footnote10 ].
[Editor's Note: The preceding image contains the reference for footnote10
].
(Jan. 13, 2016 Hr'g Defs.' Ex. 4.)
Concomitant to approving the form, the SBE sent by email on December 15 a list of Frequently Asked Questions (“FAQs”) to general registrars and local electoral board members as “guidance ... which addres[ses] question from general registrars regarding the process of utilizing the voter statement.” Those FAQs included the following:
in full]
...
5. Do we need to mail the pledge with the absentee voters ... ?
“The oaths must be mailed along with Absentee Ballots ....
...
15. Can a voter submit a provisional vote without signing the oath?
No. Any voter refusing to sign the pledge cannot vote in this Republican Party nominating process. Refusal to sign the oath is not a basis for issuing a provisional ballot since there is no eligibility issue that can be remedied after the election.
16. Can the voter sue the greeter, or anyone, because s/he was denied their right to vote?
For legal advice please contact your county or commonwealth attorney.
...
18. What if an officer decides the whole thing is too confrontational and simply lets people vote without signing the oath?
Officers of Election have a sworn duty to uphold the law and must carry out their responsibilities as instructed by the electoral board.
(Cortés Decl. ¶ 6, Ex. A-1 (emphases added).)
During this Court's Preliminary Injunction hearing, Commissioner Cortes testified that the response to FAQ 15 regarding provisional votes was given in error. Cortes said that, during the SBE's January 8, 2016 meeting, the SBE voted to provide provisional ballots in order to comply with the Help America Vote Act.11 Commissioner Cortes stated that collecting provisional ballots did not mean that votes on provisional ballots would be counted. He testified that the SBE planned to send subsequent guidance to local election officials. Also, Commissioner Cortes said that the SBE would consider the...
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