UPDATED: Reactions from party officials and candidates have been added at the bottom of this post.
Today, federal judge Michael Urbanski, sitting in the U.S. District Court for the Western District of Virginia, issued a permanent injunction against enforcement of the Virginia statute empowering incumbent elected officials to choose the method by which their political party may choose a nominee for their office.
Known colloquially as the Incumbent Protection Act, the statute takes the power to decide how the party’s nominee will be chosen from the political party itself, and gives it to the single individual elected official whose re-nomination would be most affected by the choice. Unsurprisingly, this benefit of incumbency has been used by elected officials to shield themselves from challenge as much as possible.
In the words of Judge Urbanski,
At bottom, the Act provides express statutory benefits to incumbents at the expense of political parties’ associational rights. Defendants have not shown any state interest that justifies such an intrusion into the 6th Congressional Committee’s constitutional protections. Virginia law allows political parties to conduct a variety of nomination methods, and the Constitution does not permit a state to grant incumbents power to take away that authority to further their individual interests. The Act fails constitutional muster.”
Today’s ruling denied motions for summary judgment from Virginia state elections officials, and cited the egregiously unconstitutional nature of the law when it granted the 6th District Republican Committee its motion for a permanent injunction against enforcement of the law, a great victory for grassroots activists eager to place more power in the hands of ordinary party members and less in the hands of establishment interests. At its most corrupt, the Act has been used by otherwise vulnerable Republican legislators in heavily Republican districts to force state-run open primaries in which Democrats and other non-Republicans were actively recruited to choose the Republican nominee.
The Incumbent Protection Act has long stood out as a tool of powerful established interests to shut out and marginalize grassroots activists. As such, it has been subject to a series of legal challenges over the years that have repeatedly faltered on procedural grounds. This action arose from a concerted effort among conservative grassroots activists, first by Ken Adams in the 24th Senate district and later at the 6th Congressional District level. [Note: this author supported the effort with written testimony.] The current drive has been led steadfastly by 6th District GOP Chairman Scott Sayre, who has consistently opposed the patently unconstitutional law.
This means that, absent a successful appeal or a change in the law, going forward the relevant political party committees will make all decisions concerning the method of a candidate’s nomination.
The judge’s 54 page opinion is embedded below, as is the text of the 6th District GOP’s press release.
We will post more details as we receive them. In the meantime, congratulations to all those involved with this historic victory!
FOR IMMEDIATE RELEASE
Contact: Scott Sayre (540) 4460-8888
January 19, 2018
The Peoples Victory
(LEXINGTON, VA) – On January 19, 2018, the Federal District Court for the Western District of Virginia held that Section 24.2-509(B) of the Code of Virginia, commonly known as the Incumbent Protection Act, violates the free association clause of the First Amendment as applied to political parties in the state.
The Incumbent Protection Act, which is unique to Virginia, grants incumbent politicians the power to influence or even dictate the method by which their political parties nominate candidates for office.
As the Court stated on page 40 of its 54 page opinion, “Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to identify the people who constitute the association, and to select a standard bearer who best represents the party’s ideologies and preferences.”
The challenge to the Act was brought by the 6th Congressional District Republican Committee which is comprised of 19 cities and counties mostly located along the I-81 corridor from Roanoke to Front Royal. According to the Republican Party of Virginia’s plan of organization, each district committee determines the method of nomination for the Republican candidate from their Congressional District. The court’s decision takes the decision from the incumbent politician and restores this duty to the party organization.
In challenging the Act, the plaintiffs did not address any particular incumbent politician. As Judge Michael F. Urbanski Chief United States District Judge wrote:
“At bottom, the Act provides express statutory benefits to incumbents at the expense of political parties’ associational rights. Defendants have not shown any state interest that justifies such an intrusion into the 6th Congressional Committee’s constitutional protections. Virginia law allows political parties to conduct a variety of nomination methods, and’ the Constitution does not permit a state to grant incumbents power to take away that authority to further their individual interests. The Act fails constitutional muster.”
Scott Sayre, Chairman of the 6th District Republican Committee, said, “This case is not about a particular candidate or a particular office. It is about protecting the constitutional rights of political parties and ensuring the fairness of the electoral process.” For the first time in decades the 6th District Republican Committee will nominate its congressional candidate without consideration of the Incumbent Protection Act.
Matthew Tederick, Vice-Chairman of the 6th District Republican Committee and supporter of Cynthia Dunbar who is running for congress had this to say, “This ruling is a blow to the power hungry career politicians. The court saw the injustice of a law, which was, instituted solely for the purpose of giving establishment politicians an unfair advantage over the people. This is exactly why I am so happy to be supporting Cynthia Dunbar; she has shown herself willing to continue to take the fight to the establishment in order to fully regain control for the people.”
Jeffrey R. Adams and C. Frank Hilton of Wharton Aldhizer & Weaver, PLC, located in Harrisonburg and Staunton, Virginia, and John C. Wirth of Nelson, McPherson, Summers & Santos, LC, located in Staunton, Virginia, represented the plaintiffs.
Lead attorney Jeff Adams said, “This is a victory for the First Amendment freedom of association and the right of citizens to hold their elected officials accountable.”
UPDATE: Party leaders and candidates have begun reacting to the news of this ruling.
Steve “Doc” Troxel, Ph.D., RPV State Central Committee Member:
“This is a great day for the 1st Amendment and the rights of citizens to elect their representatives, rather than having incumbents selecting themselves. This makes it far easier for the people to hold their representatives accountable.
I am pleased and grateful that the judge affirmed our constitutional right as citizens to have control of our entire election process.”
Dan Moxley, former candidate for the GOP nomination in Virginia Senate District 24 (and former plaintiff in a prior action to invalidate the Incumbent Protection Act):
“I could not be more delighted about the decision. From the beginning, this battle has been about two things: the first amendment right to keep the the democrats out of our electoral process, and the fourteenth amendment right to keep elected officials from exercising authority that only rightly belongs to the people.”
Cynthia Dunbar, Republican National Committewoman and candidate for the GOP nomination in the 6th Congressional District:
“I applaud the work of Chairman Sayre and the conservatives of the 6th District Committee for their tenacity in opposing unconstitutional overreach. The people of Virginia owe you a huge debt of gratitude in fighting on their behalf. I promise to continue fighting in this same vein so that the voice of the people is heard above that of the elected elite.”
Ben Cline, Member of the House of Delegates from the 24th District and candidate for the GOP nomination in the 6th Congressional District:
“I applaud the Court’s ruling that the ‘Incumbent Protection Act’ is an unconstitutional violation of the First Amendment. Any attempts to manipulate the political process by those seeking elected office undermines the citizens’ confidence in their system of government. All elections – be they nominating contests, conventions, or general elections – must be conducted in a manner that is fair and unbiased for any candidate. No candidate for public office should ever be allowed to bend or set the rules of their election to their benefit, and I trust this ruling will be the start of a new era of transparency and fairness for in elections Virginia.”
Nancy Smith, RPV State Central Committee Member:
” I believe that the district court ruling in the Sixth District of Virginia today supports one of the fundamental principles of our Republic: that we are best represented by legislators who are first and foremost citizens. The return of the decision making authority in our party nomination process to the people of a community ensures that the voice of the average citizen is heard. Thanks to the Sixth District leadership for pursuing legal remedy for all Virginians.”
Anne Fitzgerald, RPV State Central Committee Member:
“I am ecstatic that the Court has struck down this unconstitutional law that has been an anchor around the necks of the grassroots. Virginia finally joins the other states in the nation by removing the unfair protections politicians legislated for themselves in order to achieve election outcomes in their favor.”