Miller v. Cunningham

dissenting from the denial of the petition for rehearing en banc:

The panel opinion is by its own admission narrow. It declares Virginia’s open primary law unconstitutional solely “ ‘as applied to the narrow facts of this case.’ ” See Miller v. Brown, 503 F.3d 360, 368 (4th Cir.2007) (citing Miller v. Brown, 465 F.Supp.2d 584, 595 (E.D.Va.2006)). Appel-lee contends these facts are “very specific” — constitutional infirmity exists only when, as here, “an incumbent legislator has exercised his prerogative to select an open primary ... against the wishes of his local party as a whole.” Brief in Opposition to Reh’g at 3. This means, argues the appellee, that the panel opinion will not apply “in elections with no incumbent, in elections where the incumbent chooses a method of renomination other than primary, and in elections where the local party and the incumbent agree on the method of renomination.” Id. at 4. Presumably, the panel opinion will also not apply in elections where the incumbent declines to exercise the power to select the method of renomination.

I respect the panel’s desire to write narrowly. Narrow rulings have much to commend them as a general matter, particularly in the constitutional context. They ensure that broad judicial decisions do not over-constitutional the most fundamental and difficult questions facing our society, leaving these “issues open for democratic deliberation.” Cass R. Sun-stein, The Supreme Court, 1995 Term— Foreword: Leaving Things Undecided, 110 Harv. L.Rev. 4, 7 (1996). Narrow rulings are therefore seldom reason for this circuit to convene en banc. See Brief in Opposition to Reh’g at 4 (“Simply put, given the very limited fact scenario to which the challenged portion of the panel’s decision applies, this is not a case of exceptional importance.”).

But in the area of election law, a narrow ruling can sometimes be a real mistake. Political campaigns require substantial planning, and participants in the political process must be able to rely on firmly established legal standards. See Sunstein, supra, at 29 (arguing that decisional minimalism may be a “large mistake” when planning is necessary). The very least courts owe those who hold and seek public office is a clear understanding of the ground rules by which they must compete. Courts, of course, do not establish all of these ground rules, but to the degree we set forth constitutional standards we must not create uncertainty.

Notwithstanding its thoughtful decision in this case, the panel risks leaving Virginia election law in limbo for some time by declining to address what I believe are two fairly presented and important issues: (1) the constitutionality of Virginia’s incumbent selection provision, Va.Code Ann. § 24.2-509(B) (2006), and (2) the constitutionality of open primaries, when not selected by an incumbent, see id. § 24.2-530. While the majority winks and nods at these broader questions, by its own terms it leaves them unaddressed. This is a mistake. These questions must assuredly be litigated and it is not right to kick the can down the road when those seeking elective office deserve explicit guidance from the courts on electoral conduct.

*100I.

A.

A brief overview is in order. Virginia law allows political parties to nominate their candidates not only by primary, but also by “methods other than a primary.” Va.Code Ann. § 24.2-510 (2006). These other methods “include (but are not limited to) a party convention; a mass meeting, also known as a ‘caucus’; and a party canvass or unassembled caucus, also called a ‘firehouse primary.’ ” Miller v. Brown, 503 F.3d 360, 362 (4th Cir.2007) (internal citation omitted). Primaries are conducted and paid for by the state, see id., and must comport with Virginia’s “open primary” law, which provides: “All persons qualified to vote ... may vote at the primary. No person shall vote for the candidates of more than one party.” Va.Code Ann. at § 24.2-530 (2006). Political parties must conduct and fund the other nomination procedures themselves, see Miller, 503 F.3d at 362, and are allowed to limit participation, so long as they do so constitutionally. See, e.g., Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).

Virginia law vests the power to decide “the method” of making party nominations with the “duly constituted authorities of [a] political party.” Va.Code Ann. § 24.2-509(A) (2006). However, there is an exception to this rule: certain incumbent officeholders, including incumbent state legislators- — and not the leadership of the party they represent — are allowed to select the method of nomination for their seats. Id. § 24.2-509(B);1 see also Miller, 503 F.3d at 362 (noting that “an incumbent state legislator is entitled to select the method of nomination for his seat”).

B.

In this case, Stephen Martin, a Republican representing the 11th District in the Senate of Virginia, exercised his statutory authority under § 24.2-509(B) to designate a state-funded primary as the method of nomination for his seat. Senator Martin’s selection conflicted, however, with the plans of the 11th District Republican Committee (“Committee”). Contrary to the dictate of Virginia’s open primary law, the Committee wanted to exclude voters from the nomination process who had voted in recent Democratic primaries. The Com*101mittee thus filed a § 1983 suit in federal court, arguing that Virginia’s open primary law violated the Committee’s First and Fourteenth Amendment rights to free association.

Affirming the district court, a panel of this court agreed with the Committee. Confining its decision to “ ‘the narrow facts of this case,’ ” Miller, 503 F.3d at 368 (citing Miller v. Brown, 465 F.Supp.2d 584, 595 (E.D.Va.2006)), the panel declared Virginia’s open primary law, § 24.2-530, unconstitutional, but only “as applied” to the situation in which an incumbent elects to hold an open primary against his party’s wishes, Miller, 503 F.3d at 371.

In reaching its decision, the panel declined to consider two properly presented questions: the constitutionality of Virginia’s incumbent selection provision, § 24.2-509(B), and the constitutionality of Virginia’s open primary law, § 24.2-530, when not selected by an incumbent. For the reasons mentioned earlier in this opinion, I think it was error for the panel to leave unanswered these two questions of exceptional importance. The basic thing judges with life tenure owe elected officials of periodic tenure is clarity on the rules of their contest. I cannot predict whether my distinguished colleagues on this court will or will not adopt at some later point the specific views expressed herein. But I am of firm conviction that two issues critical to Virginia election law are clearly presented by this case, and that it is the solemn obligation of the court to address them.

II.

The first important issue not addressed by the panel opinion is the constitutionality of Virginia’s incumbent selection provision, Va.Code Ann. § 24.2-509(B) (2006). To me, the unconstitutionality of this provision is clear. I fully recognize that governance is an immensely complicated business and that the ability of parties to renominate and electorates to re-elect incumbent officeholders is essential to the fund of experience and expertise that enables a large Commonwealth such as Virginia to be well-run. Notwithstanding the benefits that length of service confers upon the public welfare, the 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. Moreover, the provision also contravenes the First and Fourteenth Amendment rights of political parties to free association.

I believe that the constitutionality of § 24.2-509(B) is properly presented in this case: the parties are treating it as such, and the panel necessarily considered the provision in reaching its holding. However, failure to address the constitutionality of this provision can only mean more litigation down the road. I see no reason to refrain from striking down a provision that plainly runs afoul of our most fundamental constitutional rights.

A.

I start my analysis of Virginia’s incumbent selection provision with a very simple proposition: if there is going to be election law, it will be written and enacted by incumbents. Both the United States and Virginia Constitutions explicitly grant the legislative branch the authority to regulate elections. The Federal Constitution states that “Congress may at any time make or alter ... regulations” governing “the times, places, and manner of holding elections for Senators and Representatives,” U.S. Const, art. I, § 4, while the Virginia Constitution grants - Virginia’s legislature broad powers to control nearly all facets of the electoral process:

*102The General Assembly shall provide for the nomination of candidates, shall regulate the time, place, manner, conduct, and administration of primary, general, and special elections, and shall have the power to make any other law regulating elections not inconsistent with this Constitution.

Va. Const, art. II, § 4.

Given this, there is certainly nothing unconstitutional per se about incumbents shaping the electoral process to their advantage. This is merely a feature of American politics. The Framers were surely aware of the desire of those who hold elective office to retain elective office, yet they were clearly comfortable giving incumbents the authority to write election law. Judicial intervention into the electoral process, merely for the purpose of rooting out self-interested political behavior, would therefore be an “substantial” incursion into textually and traditionally legislative prerogatives.2 See Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring in the judgment). Furthermore, elections are “pervasively regulated,” Richard H. Pildes, The Supreme Court, 2008 Term — Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L.Rev. 28, 51 (2004), and aggressive review of legislative motivation in this area would leave the federal judiciary time to do little else but analyze election laws. The Supreme Court has therefore been appropriately reluctant to police enactments in the election law context, even while explicitly recognizing that self-interest may be a partial driver of legislative action in this area. See Vieth, 541 U.S. at 298, 305, 124 S.Ct. 1769 (plurality opinion) (holding political gerrymandering to be non-justiciable for lack of a judicially manageable standard despite the fact that redistricting is always conducted with an intent to gain “political advantage”).

Nonetheless, there are limits to this deference. As the Supreme Court suggested in the famous fourth footnote of United States v. Carotene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the judiciary has a basic obligation to keep the political process open and well-functioning. See id. at 152 n. 4, 58 S.Ct. 778. “The first instinct of power is the retention of power,” and those who hold public office can be expected to attempt to insulate themselves from meaningful electoral review. McConnell v. FEC, 540 U.S. 93, 263, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (Scalia, J., concurring in part and dissenting in part). It is therefore necessary for an independent and co-equal branch of government — the judiciary — to ensure that in*103cumbents are unable to create a system where the “ins ... will stay in and the outs will stay out.” John Hart Ely, Democracy and Distrust 103 (1980); see also Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Geo. L.J. 491, 497-502 (1997).

This is because any political system that lacks accountability, “democracy’s essential minimal condition,” Pildes, supra, at 44, does not conform with even the barest requirements of equal protection, which demand, at a minimum, that the majority is not systematically frustrated in enacting its policies into law. See Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 753-54, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964) (Stewart, J., dissenting) (stating that legislative action which causes “systematic frustration” of the majority will does not meet the “basic” requirements of equal protection); see also Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (stating that “[f]ull and effective participation by all citizens in state government requires ... that each citizen have an equally effective voice in the election of members of his state legislature”); Baker v. Carr, 369 U.S. 186, 261-62, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (Clark, J., concurring).

At the very least, therefore, the need to “clear the channels of political change,” see Ely, supra, at 105-34, requires the judiciary to presume that election laws that facially discriminate in favor of incumbents are unconstitutional.3 Two reasons support this conclusion. First, election laws that facially discriminate in favor of existing officeholders simply go “too far”: if incumbents are allowed to pass laws explicitly and exclusively for their own benefit, there would be no end to the advantages they could provide themselves. Incumbents could therefore diminish the possibility for change and competition in American politics to a degree never envisioned by the Constitution. Second, the problems presented by judicial intervention into the political process are not nearly as pronounced when the courts are faced with laws that facially favor incumbents. Facially neutral laws, like legislative redistricting schemes, may produce a de facto advantage for incumbents, but uncovering whether that advantage reaches unconstitutional limits requires an intrusive — and potentially error-prone — inquiry into legislative motive. The biases of facially discriminatory laws, on the other hand, are readily apparent.

Given the foregoing, Virginia’s incumbent selection statute, Va.Code Ann. § 24.2-509(B) (2006), is plainly unconstitutional, at least when state legislators are passing laws dealing with their own reelection prospects. The statute facially discriminates in favor of existing officeholders, by compelling political parties to “nominate [their] candidate[s] for election ... by the method[s] designated” by incumbents. In doing so, the law leaves no doubt as to who its purported beneficiaries are — the incumbents in Virginia’s General Assembly. These incumbent legislators already possess numerous structural advantages over their electoral competition: money, name-recognition, staff, etc. To this pre-existing array of de facto advan*104tages, Virginia’s incumbent selection provision now adds the de jure advantage that the incumbent can dictate his or her recommended preference as to renomination procedures over a party’s express wishes. Such an explicit advantage given to existing officeholders surely threatens to entrench Virginia’s incumbents to an unconstitutional extent.

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837-38, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), the Supreme Court held that a state cannot place term limits on its United States Congressmen. Thornton, however, left intact the option of states to impose term limits on state legislators. Virginia has declined to impose such limits, and it may well be wise and correct in declining to do so. Nonetheless, the basic quid pro quo implied by Thornton maintains its force: the federal courts will ensure that constitutionally qualified candidates are not prevented from seeking office, so long as those candidates do not shut down the political process and entrench themselves once they are elected. By facially favoring current officeholders, Virginia’s incumbent selection provision violates the mandate of this quid pro quo, and threatens the “fundamental principle of our representative democracy,” that “ ‘the people should choose whom they please to govern them.’ ” Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting 2 Elliot’s Debates 2&1 (A. Hamilton, New York)).

B.

The constitutional infirmity of Virginia’s incumbent selection provision does not end with its explicit discrimination in favor of existing officeholders. While this alone is sufficient to render Va.Code Ann. § 24.2-509(B) unconstitutional, the provision additionally contravenes the First and Fourteenth Amendment rights of political parties to free association.

The Supreme Court has long recognized that the First Amendment protects “the freedom to join together in furtherance of common political beliefs.” Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). A fundamental and necessary element of this freedom is the ability of a political party to make its own decisions: “ ‘Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ ” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 n. 22, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981) (quoting Laurence H. Tribe, American Constitutional Law 791 (1978)). Of particular importance are a political party’s decisions surrounding the process of selecting its nominee, for a “party’s choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 372, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (Stevens, J., dissenting).

In allowing the views of a single individual to override the wishes of an entire political party, Virginia’s incumbent selection mechanism fails to abide by even these basic First Amendment requirements. As the panel correctly recognized, the incumbent is not the party, nor even the designated representative of the party. Miller v. Brown, 503 F.3d 360, 368-70 (4th Cir.2007). In fact, the incumbent and the party face very different incentives with regard to the selection of nominating procedures. Id. at 369; see also Eu v. San Francisco County Democratic Cent. *105Comm., 489 U.S. 214, 225 n. 15, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (“Simply because a legislator belongs to a political party does not make her at all times a representative of party interests.”)- The incumbent will focus primarily on his or her chances for re-election, while the party may have multi-faceted goals that are not necessarily best achieved by maximizing a particular individual’s re-electability. Allowing the incumbent to bind a party despite these differences — without the party’s explicit or implicit consent — is the very definition of an unconstitutional burden on the party’s associative rights, and a sufficient reason, in and of itself, to declare Va.Code Ann. § 24.2-509(B) unconstitutional.

C.

Finally, I note that it is entirely proper for us to consider the constitutionality of the incumbent selection provision in this litigation. For three reasons, I think this question is squarely presented.

First, the parties are treating it as such. The state has vigorously argued that the incumbent is the party, placing the incumbent selection provision directly in front of this court. See Miller, 503 F.3d at 368-70 (noting that the Board’s challenge to the district court ruling rested on an argument that the incumbent’s selection of an open primary did not burden the Republican Party’s interests). Indeed, the panel discussed Va.Code Ann. § 24.2-509(B) at length in its opinion.

See id. at 369-70. It is difficult to see how judicial economy is served by a court considering such an obviously unconstitutional provision without ruling on its constitutionality.

Second, it is impossible to consider Virginia’s open primary law on the facts of this case without also evaluating the incumbent selection provision. The constitutionality of an open primary — nr any other nomination option — is inextricably linked to the manner in which a state designates those options may be chosen. Therefore, we must consider the two provisions in concert. Indeed, as the panel recognized in limiting its decision to the “specific” circumstance where “an incumbent legislator has exercised his prerogative to select an open primary ... against the wishes of his local party as a whole,” Brief in Opposition to Reh’g at 3, one cannot consider what was chosen without asking how and by whom it was chosen.

Third, leaving the incumbent selection provision largely intact almost certainly ensures further litigation down the road. The minute an incumbent chooses to run, for example, a convention or closed primary against his or her party’s wishes, the party will challenge the law, claiming that its associative rights have been violated. To repeat: clarity is a critical component of election law — a particularly litigious field — and this question should simply not be left hanging. It is not a matter for another day.

III.

The second important issue not addressed by the panel is the constitutionality of Virginia’s open primary law, Va.Code Ann. § 24.2-530 (2006), when it is not triggered by the incumbent selection mechanism. The panel explicitly reserves this question in its opinion: “we do not decide whether the open primary statute, viewed in isolation, impermissibly burdens a political party’s associational rights.” Miller v. Brown, 503 F.3d 360, 366 n. 6 (4th Cir.2007). Later, to emphasize its point, the panel explicitly reserves the question again: “[h]ere, we need not decide whether Virginia’s open primary statute, viewed in isolation, impermissibly burdens a politi*106cal party’s right to associate with those who share its beliefs.” Id. at 367. Reading the panel’s rejection of the Committee’s facial challenge to open primaries, one may conclude that state-mandated open primaries are constitutional. Id. at 364-68. Conversely, in striking Virginia’s open primary law as applied to an incumbent-selected primary, the panel sets up a most peculiar system in which an incumbent is free to impose on his party any nomination mechanism he chooses — convention, caucus, fire-house primary, closed primary — except that he cannot choose a state-funded open primary over his party’s veto. Id. at 368-71. This decision may be construed as mandating a constitutional preference for closed primaries — a dramatic step certainly not dictated by Supreme Court precedent.

To repeat once more: clarity in election law is critically important, and the implications of the panel’s decision are not clear. The consequences of this lack of clarity are considerable in this case: to the extent the panel calls into question the constitutionality of open primaries, the panel not only discourages state legislatures from making a choice that they are perfectly entitled to make, but it also nudges Virginia down the road to party registration, something the state has yet to adopt. Thus, the panel opinion threatens to remove legitimate options as to party nomination mechanisms from the people themselves and enshrine a principle of political polarization in constitutional law. The panel could and should have made clear that a state law mandating open primaries, through something other than an incumbent selection provision, is perfectly constitutional. To say that this question must await further litigation is to do the Commonwealth a considerable disservice.

A.

A mandatory open primary should indeed be a constitutional choice for states to make. Not the only choice by any means, or necessarily the best, but a permissible one.

In Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 120-24, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), the Court invalidated Wisconsin’s selection of its presidential delegation by open primary because it conflicted with the national Democratic Party’s rules for seating delegates and thus infringed the national party’s associational rights. The Court did not consider the constitutionality of state open primaries generally — except to observe that “the Wisconsin Supreme Court may well [have] be[en] correct” to uphold the Wisconsin open primary law as constitutionally valid. Id. at 121, 101 S.Ct. 1010.

In Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 225, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), the Supreme Court invalidated a state-imposed closed primary that disallowed participation of registered independent, where such a primary conflicted with party rules. The Supreme Court noted, “[t]he relative merits of closed and open primaries have been the subject of substantial debate since the beginning of this century, and no consensus has as yet emerged.” Id. at 222, 107 S.Ct. 544. The Court went on to enumerate the states that mandated open primaries by statute. Id. at 222 n. 11, 107 S.Ct. 544. These observations hardly suggest that the open primary option is constitutionally foreclosed. To the contrary, they suggest that the “relative merits” of open primaries are a matter for each state to consider.

In California Democratic Party v. Jones, 530 U.S. 567, 586, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), the Supreme Court invalidated California’s mandatory *107blanket primary. The blanket primary placed all the candidates on one ballot and allowed all registered voters, regardless of their party registration, to vote for any candidate in any race, such that one individual could cast votes for candidates from different parties in different races. Id. at 570,120 S.Ct. 2402. The top vote-getter of each party became the nominee of that party for the general election. Id. The Court invalidated the California system. In doing so, however, it expressly observed that “the blanket primary ... may be constitutionally distinct from the open primary.” Id. at 577 n. 8, 120 S.Ct. 2402. The Supreme Court distinguished open primaries in Jones for one simple reason: open primaries do not impose an impermissible burden on parties’ constitutional rights.

Unlike the blanket primary in Jones, an open primary does not force a party to allow nonmembers to participate. See id. at 577, 581, 120 S.Ct. 2402. Instead, an open primary creates an affiliation between voter and party on the day of the election, when the voter chooses to participate in one party’s primary to the exclusion of all others. In this respect, it is much more akin to a constitutionally permissible closed primary than an unconstitutional blanket primary. In Jones, the Court said a closed primary is “qualitatively different” from a blanket primary. Id. at 577, 120 S.Ct. 2402. “Under [a closed primary] system, even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to ‘cross over,’ at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.” Id. (emphasis omitted).

But this seems no “qualitatively different” from what an open primary does: it allows voters to change their party affiliation on the day of the election and limits each voter’s participation to one party’s primary. Just as in some closed party systems, members can affiliate with the party as late as the day of the election. And, as in closed primaries, an important sign of affiliation is voting exclusively in one party’s primary. Constitutionally speaking, an open primary functions the same way as a closed primary with same-day registration. See id.

It is no answer to say that a closed primary requires formal party registration and an open primary does not. The act of voting exclusively in one party’s primary is itself an act of affiliation. As the Court noted in Jones, “[t]he act of voting in the [party] primary fairly can be described as an act of affiliation with the [party].” Id. at 577 n. 8, 120 S.Ct. 2402 (quoting La Follette, 450 U.S. at 130 n. 2, 101 S.Ct. 1010 (Powell, J., dissenting)).

The importance of voting as an act of affiliation is only under-scored in Virginia, where the act of voting is the only act of affiliation recognized by state law. Virginia law, as noted, does not provide a mechanism for party registration. Presenting oneself on election day and asking for a particular party’s ballot is thus not just a declaration of affiliation — it is the only declaration of affiliation contemplated by Virginia law. In this, Virginia has chosen to recognize that “[t]he act of casting a ballot in a given primary may, for both the voter and the party, constitute a form of association that is at least as important as the act of registering.” Clingman v. Beaver, 544 U.S. 581, 601, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (O’Connor, J., concurring in part & concurring in the judgment).4

*108In Jones, the Court showed keen awareness of such electoral nuances. It characterized its holding as striking a primary that was open “to persons wholly unaffiliated with the party,”