Miller v. Brown

Miller v. Brown

Opinion

 [*362]  WILKINS, Senior Circuit Judge:

Three officials of the Virginia State Board of Elections (collectively, "the Board") appeal a district court order holding that Virginia's open primary law, Va. Code Ann. § 24.2-530 (2006), is unconstitutional as applied to the 11th Senatorial District Republican Committee and its chairman, Larry Miller, ² and enjoining the Board from requiring the Committee to hold an open primary in Virginia's 11th Senatorial District in 2007. The Committee cross-appeals another portion of that order holding that § 24.2-530 is not facially unconstitutional. For the reasons that follow, we affirm the district court order in its entirety.

On June 4, 2004, the Republican Party of Virginia amended its Plan of Organization (Plan) to allow its affiliated committees,  [**3] of which the Committee is one, to exclude from the Republican nomination process any voter who participated in the nomination process of another party in Virginia "after March 1, 2004, or in the last five years, whichever is more recent." J.A. 20. The Plan provides an exception for voters who, in writing, renounce their affiliation with any other party, indicate their agreement with Republican Party principles, and express their intent to support Republican nominees. The amended Plan became effective on June 15, 2006.

The Committee oversees the nomination process for the Republican candidate for the 11th District seat in the Senate of Virginia. Stephen Martin, a Republican, currently holds the seat and is running for reelection this year. ] Under Virginia law, an incumbent state legislator is entitled to select the method of nomination for his seat. See Va. Code Ann. § 24.2-509(B) (2006). Virginia allows nomination of candidates not only by a primary--which is conducted and funded by the state--but also "by methods other than a primary." Va. Code Ann. § 24.2-510 (2006). Such other methods, which are conducted and funded by the party, include (but are not limited to) a party convention,  [**4] see Va. Code Ann. § 24.2-508(ii) (2006); a mass meeting, also known as a "caucus"; and a party canvass or unassembled caucus, also called a "firehouse primary." ³

In August 2004, Senator Martin designated a primary as the method of nomination in the 11th District for the 2007 election. In accordance with Senator Martin's designation, the Committee, on January 13, 2005, formally recognized that a primary would be used to select its nominee. Consistent with the amendments to the Plan, the Committee chose to exclude voters who had voted in a Democratic Party primary between March 1, 2004, and June 12, 2007 (the date of the Republican primary), except those voters who complied with the written "loyalty" requirements of  [*363]  the Plan. In a letter dated January 17, 2005, Miller informed the Board of the Committee's decision. His letter requested "written confirmation . . . of the [Board's] intention to implement the above-noted restrictions on the participation by Democrats in our primary." J.A. 42.

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