The candidate for the GOP nomination for the 24th Senate District seat currently held by Sen. Emmett Hanger (R-Augusta) is seeking to join local GOP efforts to have the law allowing incumbents to choose their own method of re-nomination declared unconstitutional.[read_more]
As we reported at the time, late last month the 24th Senate District Republican Committee, led by Chairman Ken Adams, had designated a convention as the method of nomination for the district’s senate seat. Sen. Hanger at the very last minute filed a designation for a state-run open primary, which the State Board of Elections is bound to allow given the clear wording of the relevant section of the Code of Virginia. Adams and the majority of his Committee regard the operation of this law—which gives incumbent Republicans the power to choose a nomination process that allows participation by non-Republicans—as an unconstitutional infringement on the Republican Party’s freedom of association. They very quickly filed suit to block it.
The most recent twist in this saga came when Moxley, an Augusta engineer and small business owner who is challenging Hanger from the right, filed papers seeking to be allowed to intervene in the 24th District GOP’s suit, arguing that as a challenger to Hanger that he has rights at stake that the Party does not, and that in litigating the constitutionality of the law the Party would not have adequate standing to protect those rights. Specifically, if the court allows Moxley to intervene, his argument will center on the Fourteenth Amendment equal protection aspects of allowing one candidate (the one who necessarily is already a sitting legislator) to decide a nomination method to the potential detriment of other candidates. Moxley argues that the Party committee and its members simply will not have the ability to claim injury in the way that Moxley will.
Moxley’s motion closely followed arguments advanced in Judge J. Harvie Wilkinson’s dissenting opinion in the Fourth Circuit’s 2007 decision in Miller v. Brown, the case involving the last litigated challenge of the Incumbent Protection Act. Moxely’s motion quotes from Wilkinson’s dissent at length:
“[T]he incumbent selection provision at issue here facially discriminates in favor of incumbents, shutting down the political process and violating the most essential requirements of equal protection…. Virginia’s incumbent selection statute is plainly unconstitutional….The state facially discriminates in favor of existing officeholders….”
This, according to Judge Wilkinson and Moxley, denies challengers the equal protection of the laws guaranteed by the Fourteenth Amendment. Wilkinson’s colleagues on the bench in 2007 did not necessarily disagree with him, but instead found it unnecessary under the circumstances of that case to decide the ongoing constitutionality of the law.
This is why Moxley’s intervention is important. Although we understand some parties associated with the existing plaintiffs are skittish about the proceedings being seen to benefit one candidate or another (preferring the Party’s suit to be candidate-neutral), if Moxley is allowed to intervene, the court could then strike down the Act either on First Amendment freedom of association grounds, Fourteenth Amendment equal protection grounds, or both. In essence, Moxley is opening another front in the battle to vindicate the rights of the Party, and of challenger candidates.
As we understand it, the parties are scheduled to have their first hearings before the judge on this matter next week. The 24th District Convention is scheduled for April
The next month or so should be very interesting.