For a quick primer on the Incumbent Protection Act and the basis of the controversy, please check here and here. In a nutshell, Virginia’s Incumbent Protection Act gives incumbent members of the General Assembly the exclusive right to pick the method by which they can be re-nominated by their party, regardless of the preferences of the party. Incumbents naturally choose state-run open primaries, which give them the greatest possible advantage over challengers when compared to the party-run alternatives (mass meetings/caucuses, cavnasses/firehouse primaries, or conventions). Incumbents have the advantage of name recognition and the ability to tap vast funding from their respective House and Senate party caucuses.
Because these state-run open primaries in Virginia mean that members of other political parties can participate in the nomination of Republican candidates, the Republican legislative district committee for the 24th Senate District, where Emmett Hanger (R-Augusta) is the incumbent, sued the State Board of Elections to halt the primary that Hanger chose, in favor of the convention the party committee chose.
The 24th LDC’s principal argument was that forcing the party to hold a process that allows non-members to participate violates their First Amendment freedoms of association and speech, and that therefore Virginia’s Incumbent Protection Act should be declared unconstitutional. As we wrote here, after the LDC and its chairman Ken Adams filed their suit, a challenger for the nomination, Dan Moxley, filed a motion to intervene as a plaintiff. Moxley’s principal argument is that the Incumbent Protection Act represents a Constitutional equal protection violation, in that it gives an incumbent unique advantages over all other candidates.
Since Moxley’s move to join the suit, the defendant State Board of Elections has filed its reply, along with a motion to dismiss. Additionally, Senator Hanger has moved to intervene, arguing that he has interests that the State Board cannot adequately represent. The gist of the defendants’ arguments was that the state has an interest in promoting primaries that justifies what would otherwise be deemed Constitutional infirmities in the Incumbent Protection Act. These were pretty weak arguments given that the Act allows the incumbent to choose any method of nomination that suits him or her, not just a primary, and even then these arguments don’t address the unfair advantage incumbents are given in being able to make that choice regardless of what other voters in the district (i.e., the Party) believe.
Unfortunately for the 24th District Committee and Dan Moxley, defendants also made another basic argument that the judge determined to have more merit. This involved the portion of the Republican Party Plan of Organization that allows for a Legislative District Committee to determine a method of nomination only “where permitted to do so by Virginia law.” Rather than allow plaintiffs’ challenge to proceed on the basis that the law’s injury exists with or without the Party rules and/or that the provision does not preclude challenging unconstitutional law, the judge instead found that the existence of that language in the Plan constituted the Party’s voluntary acquiescence to the Incumbent Protection Act. Hence, reasoned Judge Dillon:
The Party’s voluntary decision to limit the authority of the LDC in its Plan and to allow the incumbent to decide upon the method of selecting a nominee is a decision the Party is permitted to make and is the cause of any alleged injury to the plaintiffs. For these same reasons, this court cannot redress any injury caused by the Party’s governing Plan. Plaintiffs have failed to meet their burden to establish standing
It is unclear at this point whether the plaintiffs are contemplating an appeal. We’ll keep you posted.
Judge Dillon’s full ruling is embedded below: