In 2015, we may finally see the death of the Incumbent Protection Act, a law long supported by opponents of nominating conventions.
History
The law, Virginia Code § 24.2-509, allows the incumbent members of the General Assembly who won their party’s nomination via a state-run open primary may choose for themselves the method of their renomination, without regard to the wishes of the relevant political party committee. This includes forcing a selection of a state-run open primary in which, for example, Democrats may participate in the selection of the Republican Party’s nominees.
In 2007, the U.S. Court of Appeals for the Fourth Circuit handed down its ruling in Miller v. Brown declaring Virginia’s open primary statute invalid in matters in which incumbents choose a method of party nomination contrary to the desires of the local party committee. This decision, left unappealed by the Virginia State Board of Elections, contains the following analysis of the Incumbent Protection Act:
The [Supreme] Court stressed that the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only. (Internal quotations and citations omitted)
In other words, parties have a right to choose who participates in the nominating process.
[A]t least for purposes of selecting a nomination method, Virginia does not view the incumbent legislator as a representative of the party.
…the [State Board of Election]’s contention that the Committee may use various means to compel Senator Martin to accede to its wishes regarding the method of nomination appears contrary to [the Incumbent Protection Act.]
The Incumbent Protection Act is odious as it allows the incumbent to interfere with party decision making and possibly allow outsiders into the nomination process against the will of the party.
Even though Miller v. Brown contained such substantially unfavorable language to the Incumbent Protection Act, no one has challenged it in SEVEN intervening years.
Until now.
The 2015 method of nomination in the 24th
On December 3, 2014 the members of the Republican Party’s 24th Senate Legislative District Committee, after consulting with counsel, voted 6-1 to hold a convention as the nomination method in the District.
In deciding on this course of action, Ken Adams, the Chairman for the District Committee said
Our goal is to overturn an unconstitutional and unjust law and in doing so, profoundly change the political landscape in Virginia…[If successful,] incumbents will be required to come back to the grassroots to be renominated.
After Speaking with Chairman Adams I can say the District Committee is well aware of the gravity of its actions and is committed to getting to the final resolution. This is about restoring power to local committees to hold Republican standard bearers accountable to the grassroots.
There are arguably three people running for the nomination:
Senator Emmett Hanger (who claims he will decide after the General Assembly session)
Marshall Pattie (A former Democrat doing much to atone)
Dan Moxley (long rumored/just announced)
But what if Sen. Hanger selects a convention as well?
The legal fight will be called off.
But, the District Committee has to file their decision of nomination method between 125 and 105 days before the scheduled primary. If Sen. Hanger selects a primary, and if, as they did in Miller v. Brown, the State Board of Elections ignores the decision of the political party and instead proceeds with a primary, the stage will be set for a fight by approximately 104 days before the potential scheduled primary. However, I am sure an enterprising lawyer can figure out how to use Miller v. Brown’s earlier precedent to get into court before then, when the threat of conflict is realistic.
The stakes for Senator Hanger are high
The incumbent is almost always heavily favored. In a three way race, the possibility of a challenger can diminish to nothing in an open primary. In a convention, organization and loyalty will often trump incumbency, and more importantly, the bar is usually set at 50%, meaning that if no single candidate gets a majority on the first ballot the candidate with the lowest percentage of the vote is dropped before the next ballot is voted. If Sen. Hanger is running, expect him to spend a hefty bit on legal fees in order to try to avoid a convention. We expect that the respective GOP caucuses of both houses, along with an army of lawyers recruited by pro-primary consultants and lobbyists, to come to his aid.
I, for one, am thankful that the 24th district LDC has shown the backbone to take on the Incumbent Protection Act, and help the Republican party throughout Virginia.
42 comments
[…] For those wondering what the Incumbent Protection Act is, it is a law that allows incumbent members of the General Assembly to choose the method of their renomination. In almost all cases, this means the incumbent chooses a state-run open primary. Reasons vary for this, but generally it is understood that incumbents have a greater advantage in a primary because they are costlier and, in cases like Hanger’s, because they can be used to shield Republican incumbents from being held accountable to their own party because the law allows Democrats to participate in choosing the Republican Party’s nominees. More background can be found here. […]
[…] 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 […]
[…] the same time, the Incumbent Protection Act is headed to court over a convention-vs-primary fight in the 24th state senate district. Liberal Republicans are […]
Well done, Paul!
Marshall (still a Democrat Socialist) Pattie is being supported by Democrats. This secret infiltration of Democrat-activist into the ranks of the Republican party is troubling. Marshall Pattie supports abortion, amnesty, GAY MARRIAGE, and Hillary Clinton. Just talk to Del. Steve Landes and Del. Dickie Bell to get their take on it.
Nick Fritas who is the Conservative Republican Chairman of CCRC (Culpepper County Republican Committee), endorsed Liberty-minded businessman Dan Moxley in the race against Emmett Hanger. Nick is someone who has shown leadership and a love for the Constitution. Conservatives who love liberty must come out and support Dan Moxley in the Convention as he is 100% pro life and an advocate for property rights. Here is Dan’s Website. http://www.danmoxley.com/
Speaking of Nick Freitas…https://www.facebook.com/DraftFreitas
I might be missing something here, but 24.2-509 specifically states that for GA seats, if there is more than one person running the nomination is by primary, unless all candidates agree to a different method.
And I remember the Miller case, very well. I was in Chesterfield then.
Peacemaker: the provision you’re remembering deals with multiple “Incumbents” not “candidates.” That provision is operative where (unlike here) two incumbents have been placed into the same district as a result if reapportionment. Here, it’s the incumbent’s choice.
I see your point, but as I’m sure you know, the GA has changed the code since that case. Following your point, here is one example:
24.2-516…”
Each chairman shall file timely written notice with the Board whether or not
a primary has been adopted and identify each office for which a primary has
been adopted. The requirement to notify the Board of the adoption of a direct
primary shall be satisfied when the Board receives by the deadline (i)
written notice from the appropriate party chairman or (ii) a copy of the
written notice from an incumbent officeholder to his party chairman of the
incumbent’s selection, pursuant to § 24.2-509, of the primary as the method
of nomination.”
509 might only apply to more than one “incumbent” but the language of this section could easily be used to serve the opposing purpose. 530, should be void with a “repealed” notice after the decision, but alas, it remains.
I think the GA has made enough amendments to 24.2 that they feel comfortable. That’s my only point.
And the court had a similar opinion of 509 as I did ”
“Section 24.2-530 is constitutionally sound when engrafted onto a
statutory scheme providing for alternative, less restrictive means of
candidate selection. When the Republican Party’s discretion is
foreclosed by Senator Martin’s invocation of § 24.2-509, mandating a
forced open primary, the confluent effect impermissibly undermines the
11th District Committee’s right of free association. This narrow and
perhaps infrequent application of § 24.2-530 violates the First
Amendment right of the plaintiffs in this case.
Therefore, in the event that a Republican primary is held in 2007 in
the 11th Senatorial District of Virginia, the defendants are enjoined
from requiring the plaintiffs to hold an open primary”.
http://scholar.google.com/scholar_case?case=1546987937737653717&q=related:kQdRf2BbC98J:scholar.google.com/&hl=en&as_sdt=2006
Steve is right about his analysis. The selection is by incumbents only under Va. Code 24.2-509.
24.2-509 has not been changed since 1993.
24.2-516 was changed in 2010, but the only change was to the dates in which the party must notify the SBE, and in no other manner.
Sheesh. Just the name, “Incumbent Protection Act” has such a bad sound. So wrong.
Excuse me for being new to this blog, but I must make a comment regarding this story involving Augusta County and particularly the South River District. Those folks in the photos here are the people of South River. Stuarts Draft, Virginia is a close knit community that is welcoming to anyone that wishes to live a better lifestyle than that they have left behind. The problem is what Ramona is pointing to is the way Carolyn was treated by Mr. Moxley who was using her for his own gain. Mr. Moxley is a stranger that had a political agenda that involved his run for higher office. Carolyn’s supporters were all Republicans and no Democrats. We are a Republican area and Carolyn is a Republican, but many do not have time to go to meeting due to taking care of our land, work, and family time. Mr. Moxley said if you dont go to the meetings and have membership then your not a Republican. The town is still upset and the articles in the paper and here have opened an old wound. I hope that Mr. Moxley will leave Draft out of his future political schemes. Thank you for your time and consideration.
Jim, Carolyn Bragg only recently became a Republican. At the time she ran for office, she was listed on the State Board of Elections as an Independent, not a Republican. That was one of the many problems with Carolyn that caused so much confusion over her candidacy. You really should talk to Delegate Dickie Bell, Steve Landes, or Dickie Bell about what happened.
Please look at Carolyn’s voting record. She has voted to dramatically increases taxes/spending and she has taken the Democratic position on amnesty, the environment, and other issues.
Shannon Tate, THERE IS NOT PARTY REGISTRATION IN VIRGINIA! WHAT DO YOU NOT UNDERSTAND??????? If you do not understand Virginia law stop commenting Shannon. You and Harold have enough to explain anyways with your situation. Waynesboro has had enough embarrassing incidents without you starting one like you did in the past. You have no respect. Emmett Hanger has served this County for decades and you want to burn him at the stake for one vote in 30 years. Shame on your malicious lies Shannon Tate.
Who is Shannon Tate? I ain’t her. The “no-party registration” rule only applies to voters, not candidates. That’s why the State Board of Elections now shows Carolyn Bragg as a Republican: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCMQFjAB&url=http%3A%2F%2Felections.virginia.gov%2FFiles%2FCast%2520Your%2520Ballot%2FCandidate%2520List%2F20141104Local.xls&ei=ltODVPeqL4WagwT7nYSABQ&usg=AFQjCNGl3taWl2p79guzyE5XWJ4SVowhjw
Just a few months ago, this state website showed Bragg as an “Independent” . You can’t run for public office in Virginia unless you file as a member of a political party or as an “Independent” (which Bragg did). She didn’t want to be identified as a Republican… until she realized she couldn’t get re-elected without being one.
So are you a community organizer for Bragg?
I will tell you that the Pattie-activist team of Ed Long, Georgia Alvis-Long, Cole Trower, and Ann Fitzgerald cannot be trusted. These activists have an agenda that does not advance liberty and the Constitution as written. These big government activists are in Wendell Walker’s pocket, they have sold out the grassroots for the establishment. It would not surprise me if Bob Goodlatte and his staff are behind this whole thing just like they have tried to throw out 6-District Vice Chairman Matt Tedrick.
Larry, you are right, the Pattie-activist are back stabbers. If you recall Georgia and Ed Long were key supporters of “Enron” Ed Gillespie over a real Conservative candidate like Shak Hill. How can one claim to be a Conservative when they support big government Republicans like 6th District Chairman Wendell Walker, Bob Goodaltte and Ed Gillespie. This should be an eye opener to anyone who advocates for liberty and the Constitution.
To be fair, Ed Gillespie proved to be a great candidate for Senate. If you look at the way he ran his campaign, it was very conservative: Everything from his message to his campaign staff.
actually it’s more likely that you’re Pattie-activist Cole Trower.
Cole Trower claims to be a Conservative, but is really in the same category with the likes of John Scott, Dan Webb, and Matt Homer who are all somewhat involved in the Wendell Walker Campaign against Matt Tedrick. We have seen Pattie will stop at nothing to get into office and this can be seen through his opportunistic “reevaluation of conservatism.” Just know that Pattie will switch to the Democrat Party when he gets elected.
Until liberty-minded conservatives see these people for who they really are, how can we restore the republic? I pray one day this great country wakes up and restores the Constitution and liberty-minded principles.
Here is a candidate that supports liberty:
.http://virginiaconservative.net/?p=5471
I’m dying…
Wouldn’t this have to be resolved before March filing deadlines for the primary? I don’t really understand the mechanics of trying to have a Federal decision implemented on a state matter, but this seems like the timeline could get awful messy if it goes to court. So what exactly is the route on this? Would the LDC have to wait for SBE to make a ruling then ask the circuit court for a declaratory judgement and relief based on the 4th Circuit decision? Then what about appeals? Will the March filing deadline put this case at the top of everyone’s docket?
Max,
I often love your well thought out questions. I detest the amount of time it takes to answer them…
I am simplifying here: All of this is covered in issues of justiciability, whether the case is ripe (there is an active controversy with opposing sides) or moot (A decision would not change anything anyway). I cited the earlier 2006 decision in Miller v. Brown later in my piece above. This entire case deals with the issue of justiciability in the context of the timing of nominations.
The shortest block quote I can post that will give you an idea of how court’s treat the timing issue is as follows
“Rejecting the Board’s arguments that too many uncertainties exist to decide this case now, we find the only true uncertainty is whether another candidate will file for office as contemplated by Section 24.2-526. Although an uncertainty, this procedural step cannot occur until at least March 27, 2007, and as late as seventeen days later. The primary election likely would be resolved before an action brought that late could reach final decision. The case is fit for judicial review despite this uncertainty.”
Uncertainties about the existence of a controversy are not good enough to keep parties out of court. Still, this will be heavily dependent on the judge assigned to the case.
Thank you for the compliment. I get that all the time from candidates and elected officials I work with.
So basically the onus is really on the LDC to move forward in court to get this resolved now. The timelines for a convention are a lot stricter and shorter than a primary. So if they are the ones to make the first legal move, based on the quote you cited, it seems like court should see that it has to make a decision as soon as possible. But at the same time, if they can only formally file 125 days before the primary, then does the vote they took now even mean anything legally? Has the committee really decided to buck the law if it hasn’t made a legally binding decision yet by telling the SBE that’s what it wants to do?
You don’t really need to answer that, but I wonder if this committee really understands what it is they are doing and how its got to be done or if they are just trying to make a point and hoping it all ends up OK.
After re-reading your post and looking at the Miller v Brown case, which I see you were involved in, I think you answered my question. So you can get the case in beforehand just based on the initial vote of the committee, although in Miller v Brown that vote looks like it was taken in January of the year of the election as opposed to this case where it was done in December.
Hypothetically, depending on the timelines for calls and conventions and filing deadlines, is it possible the clean hands doctrine comes into play? If the committee doesn’t act in the right time frame and by the time they take it to court any decision would put them outside of their own bylaws for holding a proper convention then it would seem to be a moot point entirely and there would have to be a primary.
So, are you saying that in some circumstances a wrong that cannot have legal remedy in time for its next instance cannot be legally remedied for all subsequent instances. Rob some of their constitutional sovereign people status once w/o remedy and the wrong becomes a right?
‘Messy’ is a just consideration for procedure but it is not a just consideration in outcome.
How coincidental that you bring up Carolyn Bragg in an article about fighting for the right of the Republican Party to choose conventions as their method of nomination (in order to keep out Democrats). Bragg invited Democrats and other non-Republicans to support her at a Convention for county supervisor. As a penalty for that, she was disqualified as a candidate by the Augusta County Republican Party. The Party later reversed course and let her proceed AFTER she apologized for inviting non-Republicans. Chairman Moxley followed the rules of the Augusta County GOP. He is a man of integrity and did what was right. A lot of people who criticized him have since apologized to him after understanding what actually happened. Talk to Del. Steve Landes and Del. Dickie Bell to get their take on it.
Let Hanger challenge the decision. That will allow the law to be fully struck down and open the gates for other races across the Commonwealth to consider their own nomination method.
If Hanger doesn’t challenge it or opts for a convention, it makes no difference to the other 149 seats in the House and Senate, and we’ll still be left waiting for the law to be struck down at last.
These good people were manipulated and disrespected by Mr. Moxley. What he did to Carolyn Brag was terrible. Mr. Moxley has just moved here and needs to know that we do not act like this in augusta county virginia. People need to know what happened to her.As someone who believes in THE BIBLE I am shocked that this man wants my and my familys vote. NO SIR YOU WILL NOT GET 1 VOTE FROM SOUTH RIVER. -Ramona, Thursday evening 8:30
I am tired from work. I made a spelling mistake on my message. Carolyns last name is Bragg with 2 gs not one. BRAGG. thank you – Ramona,
Alright I’ll bite. What “happened to her”? You went on this little rant about how Moxley is apparently the devil in sheep’s clothing, so go on and explain how and why.
Side note: You just inserted a (rather large) picture of some people sitting in chairs. That explains absolutely nothing.
Did you mean “…a picture of some rather large people sitting in chairs?”
It’s a room full of old white people. It’s got to be a Republican meeting. 😀
Oh look, an old white guy criticizing old white men.
Middle-aged white guy making fun of a horrible photo.
Bruce, something I have to ask you regarding that blue shirt you are wearing in your pic.
Are you wearing that blue shirt as some sort of “subliminal” message to reach out to the subconscious of Republican’s, and flip them from red to blue?
Sorta like playing a musical record backwards.
Or, is blue the only color you will wear? What’s the deal?
It depended on what was good TV. Once I wore red and almost all Republicans watched and called in. When I wore purple, I’d get a lot of independents.
Today I’m wearing black, so people with no brains at all are responding. That would be you.
You know, I think you are right Bruce!
Have you looked in a mirror lately?
face made for radio. right Bruce? or blogging
I’m glad to be out of the TV business.
When I get up to go to the bathroom, I’ll say “I’ll be right back… after this.”