FOURTH CIRCUIT STRIKES DOWN VIRGINIA’S OPEN PRIMARY LAW[Posted October 1, 2007] The Fourth Circuit today rules that Virginia’s open primary law, Code § 24.2-530, would unconstitutionally compel the Republican Party to welcome crossover Democratic voters to vote in Republican primaries. The decision is Miller v. Brown, a declaratory judgment action filed by the local Republican Party against the State Board of Elections. There are several intriguing aspects of today’s decision; here are some of the more interesting points:
1. The statute survives a facial challenge, but succumbs to an as-applied challenge. Specifically, the court rules that the party’s facial challenge fails because the statutory scheme for primaries does permit parties to select nominating processes that keep non-Republicans out of the process. (One example is a convention, at which Democrats presumably would not be welcomed.) The problem is that when a party has an incumbent, the incumbent gets to choose the method of nomination for the next election. In this case, the incumbent, an 11th District senator, chose a primary. That choice, the court rules, is both involuntary from the party’s perspective, and binding upon it. Hence, the as-applied challenge succeeds.
2. In an interesting twist of irony, no other candidate put his fedora into the ring, so as it turns out, there wasn’t any primary anyway; the senator won by default. Skeptics might suspect that this development makes the whole issue moot, and indeed the appellants (the state board) argued as much. But the court decided the issue anyway, under the “capable of repetition, yet evading review” standard that is so familiar in campfire mootness discussions.
3. There’s at least a plausible argument to be made that one of the issues decided today (the facial challenge) wasn’t ripe for review. That’s because the district court had technically only denied summary judgment when the party sought its declaratory judgment. Appellate fans will recognize that, absent unusual circumstances, denials of summary judgment aren’t appealable. The Fourth, interestingly to me, backhands this in a footnote, saying that in essence, the district court had gone ahead and decided the whole issue by denying the facial challenge. I can sort of go along with that, as there is little doubt in my mind that the district court did, in fact, intend to finally rule the way it did. But more than one appellate lawyer has been tripped up on technical finality issues, and so I’m at least a bit surprised that the court saw fit to look past this technical jurisdictional defect. In the court’s defense, it does cite two rulings from other circuits that took the same approach in similar contexts.
4. This decision was argued to a panel of judges that had included the late Senior Judge Emory Widener, who died last month (this case was argued back in March). The remaining two judges (Senior Judge Wilkins, who wrote the opinion, and Judge Duncan, who joined) decided the case by themselves, using a specific provision in the US Code (28 USC §46 (d)) for decision of cases by a quorum of a given panel. In effect, the state board lost this case by the unusual vote of 2-0. (The court also handed down a published 2-0 decision, another of Judge Widener’s cases, last Thursday.)
5. Because of the rejection of the facial challenge, the court specifically does not decide “whether the open primary statute, viewed in isolation, impermissibly burdens a political party’s associational rights.” Since Virginia gives parties other options than just a primary, this is not a situation in which the open primary law necessarily forces Democratic voters down the Republican Party’s throat. But it is easy to foresee future problems like this, and it’s overwhelmingly likely, in my opinion, that some legislator will introduce a legislative fix to the problem. Just what kind of fix that will be is out of my jurisdiction as a legal commentator.
6. Of the several options open to parties, only one of them calls for the state to pay for an election. That’s the primary. If a party genuinely wants to guarantee that no interlopers horn in on the nominating process, it can choose another method and pay for it itself. In this way, the case raises the interesting question of whether the state can be compelled to pay for a non-open primary. That, in my view, is yet another unanswered question.
7. Finally, the state board tried one last-ditch effort to avoid this result, by arguing that legitimate and compelling state interests justified the open primary law, and its intrusion upon the party’s freedom of association. Of those, one in particular is especially interesting: The assertion that in some areas, where one political party dominates the electorate, the primary effectively IS the election. In that sense, a closed primary really does disenfranchise voters of the “other” party. Today’s opinion asserts that this argument “cannot overcome the severe burden placed upon a political party when it is forced to associate with those who may not share its views.” While this ultimately may be the correct conclusion, I don’t believe the analysis is as one-sided as the court holds in today’s opinion. Nevertheless, as I have noted before, I have neither a robe nor a vote in this case.