Miller v. Brown

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY MILLER; 11TH SENATORIAL 

DISTRICT REPUBLICAN COMMITTEE,

Plaintiffs-Appellants,

v.

MICHAEL BROWN, in his official

capacity as Chairman of the

Virginia State Board of Elections;  No. 05-2254

BARBARA HILDENBRAND, in her

official capacity as Vice-Chairman

of the Virginia State Board of

Elections; JEAN R. JENSEN, in her

official capacity as Secretary of the

Virginia State Board of Elections,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Henry E. Hudson, District Judge.

(CA-05-266-3)

Argued: May 23, 2006

Decided: August 30, 2006

Before WILKINS, Chief Judge, DUNCAN, Circuit Judge,

and Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge Goodwin wrote

the opinion, in which Chief Judge Wilkins and Judge Duncan joined.

2 MILLER v. BROWN

COUNSEL

ARGUED: Kenneth Thomas Cuccinelli, II, CUCCINELLI & DAY,

P.L.L.C., Fairfax, Virginia, for Appellants. James Christian Stuchell,

Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON

BRIEF: Paul A. Prados, CUCCINELLI & DAY, P.L.L.C., Fairfax,

Virginia; Patrick M. McSweeney, MCSWEENEY & CRUMP, P.C.,

Richmond, Virginia, for Appellants. Robert F. McDonnell, Attorney

General of Virginia, Francis S. Ferguson, Deputy Attorney General,

Maureen Riley Matsen, Deputy Attorney General, Peter R. Messitt,

Senior Assistant Attorney General, James W. Hopper, Senior Assis-

tant Attorney General, OFFICE OF THE ATTORNEY GENERAL

OF VIRGINIA, Richmond, Virginia, for Appellees.

OPINION

GOODWIN, District Judge:

Virginia’s 11th Senatorial District Republican Committee and its

chairman, Larry Miller (collectively referred to as "the plaintiffs"),

appeal the district court’s order dismissing their constitutional chal-

lenge to Virginia’s open primary law for lack of justiciability. We

reverse. We remand to the district court for decision on the merits.

I.

On June 4, 2004, the Republican Party of Virginia amended its

Plan of Organization to exclude voters who participated in the nomi-

nation process of another party within the preceding five years from

voting in the Republican primary.1 The Plan of Organization offers an

exception for those who, in writing, renounce their affiliation with the

other party, indicate their agreement with Republican Party principles,

and express their intent to support the Republican Party’s nominees.

These amendments to the Plan of Organization became effective on

June 15, 2006.

1

This provision does not apply to voters who participated in another

party’s nomination process before March 1, 2004.

MILLER v. BROWN 3

The plaintiffs conduct nominations for the Republican candidate

running for the 11th District’s seat in the Senate of Virginia. Stephen

Martin, a Republican, currently holds the seat and is up for reelection

in 2007. In Virginia, incumbents may select their method of nomina-

tion. Va. Code Ann. § 24.2-509(B) (2006). On August 12, 2004, Sen-

ator Martin submitted a form to the plaintiffs that designated a

primary as his chosen method of nomination for the 2007 election.

On January 13, 2005, the plaintiffs decided to hold the 2007 pri-

mary consistent with the recent amendments to the state party’s Plan

of Organization. That is, they would exclude anyone who voted in

any Democratic primary in Virginia since March 1, 2004, from partic-

ipating in their primary. Mr. Miller informed the Virginia State Board

of Elections ("Board") of the plaintiffs’ decision in a January 17, 2005

letter. The letter requests "written confirmation from [the Board] of

[its] receipt of this letter and of [the Board’s] intention to implement

the above-noted restrictions on the participation by Democrats in our

primary." J.A. 34.

Jean Jenson, the Board’s secretary, replied on behalf of the Board

on February 9, 2005. She explained the plaintiffs may take whatever

action they deem appropriate that complies with their party’s Plan of

Organization, but pointed out several Virginia statutes for Mr. Mil-

ler’s review. She noted that under Section 24.2-516, "the State Board

of Elections may accept notification of the selection of the primary

method of nomination for the 2007 election in 11th Senate District no

earlier than February 22, 2007, and no later than March 14, 2007."

J.A. 36 (emphasis in original). Section 24.2-516 provides:

At least 120 days prior to the regular date for a primary, the

Board shall inquire of each state chairman and each county

and city chairman whether a direct primary has been

adopted. The Board shall advise each chairman that notifica-

tion to the Board of the adoption of a direct primary is

required and must be filed with the Board not more than 110

days and not less than 90 days before the date set for the pri-

maries.

Each chairman shall file timely written notice with the

Board whether or not a primary has been adopted and iden-

4 MILLER v. BROWN

tify 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 chair-

man or (ii) a copy of the written notice from an incumbent

officeholder to his party chairman of the incumbent’s selec-

tion, pursuant to § 24.2-509, of the primary as the method

of nomination.

Id. § 24.2-516.

At the conclusion of the letter, Ms. Jensen stated the Board must

follow Section 24.2-530, Virginia’s open primary law. This law pro-

vides:

All persons qualified to vote, pursuant to §§ 24.2-400

through 24.2-403, may vote at the primary. No person shall

vote for the candidates of more than one party.

Va. Code Ann. § 24.2-530. After quoting the statute, she explained

that unless Mr. Miller can "point to a specific provision" of Virginia

law authorizing the Board to restrict voting in the pending primary,

the Board "will have to comply with the law of the Commonwealth

in effect at that time." J.A. 37.

On April 12, 2005, the plaintiffs filed a declaratory judgment

action under 42 U.S.C. § 1983 seeking a declaration that Virginia’s

open primary law violates their constitutional rights to free associa-

tion. The Board filed a motion to dismiss pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure on June 14,

2005. The plaintiffs filed a summary judgment motion two months

later. Following a hearing, the district court granted the defendant’s

motion to dismiss for lack of subject matter jurisdiction. The district

court ruled the plaintiffs lacked standing and that the case was not

ripe.

II.

It is well established that before a federal court can decide the mer-

its of a claim, the claim must invoke the jurisdiction of the court.

MILLER v. BROWN 5

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Article III gives

federal courts jurisdiction only over "cases and controversies," U.S.

Const. art. III, § 2, cl. 1, and the doctrine of standing identifies dis-

putes appropriate for judicial resolution. Valley Forge Christian Coll.

v. Ams. United for Separation of Church and State, Inc., 454 U.S.

464, 471-76 (1982). A claim is justiciable if the "conflicting conten-

tions of the parties . . . present a real, substantial controversy between

parties having adverse legal interests, a dispute definite and concrete,

not hypothetical or abstract." Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979) (quoting Ry. Mail Ass’n v. Corsi,

326 U.S. 88, 93 (1945)).

We review a district court’s dismissal for lack of standing and ripe-

ness de novo. Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379,

385-86 (4th Cir. 2001).

A.

The doctrine of standing is an integral component of the case or

controversy requirement. Marshall v. Meadows, 105 F.3d 904, 906

(4th Cir. 1997). There are three components of constitutional stand-

ing: (1) the plaintiff must allege that he or she suffered an actual or

threatened injury that is not conjectural or hypothetical, (2) the injury

must be fairly traceable to the challenged conduct; and (3) a favorable

decision must be likely to redress the injury. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). The party attempting to invoke

federal jurisdiction bears the burden of establishing standing.

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The plaintiffs

argue the district court erred when it concluded they lack standing.

We agree.

The first component of standing requires the plaintiffs to allege an

actual or threatened injury. Valley Forge Christian Coll., 454 U.S. at

472. The plaintiffs’ Complaint alleges:

By maintaining, implementing and/or enforcing a set of

laws forbidding plaintiffs the right to exclude Democrat

Party primary voters from their Republican Party nomina-

tion in accordance with their own adopted rules contained

in the Party Plan, defendants are propogating [sic] customs,

6 MILLER v. BROWN

policies, and practices that violate the plaintiffs’ rights of

free association under the First Amendment of the United

States Constitution.

J.A. 5. The allegation of having to associate with members of the

other party during their candidate-selection processes unquestionably

pleads a constitutional injury. See Cal. Democratic Party v. Jones,

530 U.S. 567, 577-82 (2000) (finding blanket primary unconstitu-

tional because it "forces petitioners to adulterate their candidate-

selection process . . . by opening it up to persons wholly unaffiliated

with the party"). Whether this alleged injury is actual or threatened,

however, requires closer examination.

The district court held the asserted injuries were not actual or

imminent. J.A. 109. The district judge explained that Senator Martin

is not an official candidate for the 2007 primary until he files a writ-

ten declaration of candidacy, which cannot occur until at least March

27, 2007. See Va. Code Ann. § 24.2-520 (stating a candidate for a

party’s nomination in a primary must file a written declaration of can-

didacy with the Board); id. § 24.2-522 (explaining the declaration of

candidacy should be filed with the Board between noon on the 77th

day and 5:00 p.m. on the 60th day preceding the primary). The district

judge also cited Section 24.2-526, which requires at least two persons

to file declarations of candidacy to hold a primary.2 J.A. 110.

In the standing analysis, we avoid focusing on the injuries of Sena-

tor Martin, who is not a party, and concentrate on the injuries of the

2

This statute provides:

Whenever within the time prescribed by this article there is only

one declaration of candidacy in a political party for the nomina-

tion for any office, the person filing the declaration shall be

declared the nominee of the party for the office for which he has

announced his candidacy and his name shall not be printed on

the ballot for the primary. Whenever within the time prescribed

by this article there is no declaration of candidacy in a political

party for the nomination for any office, the appropriate commit-

tee of the party may provide for an alternative method of nomi-

nating a candidate.

Va. Code Ann. § 24.2-526.

MILLER v. BROWN 7

plaintiffs. Focusing on the plaintiffs’ injuries reveals that their alleged

constitutional injuries are not conjectural or hypothetical. The partici-

pation of Democrats in the plaintiffs’ upcoming primary is inevitable.3

Knowing their upcoming process for selecting a nominee will include

Democrats prevents the plaintiffs from formulating a message and

selecting the candidates best tailored to their party’s interests. See

Clingman v. Beaver, 544 U.S. 581, 600 (2005) (O’Connor, J., concur-

ring) ("And the choice of who will participate in selecting a party’s

candidate obviously plays a critical role in determining both the

party’s message and its prospects of success in the electoral con-

test.").

The plaintiffs’ goal to nominate the candidate who best represents

the interests of the Republican Party in the 11th Senatorial District is

thwarted if the plaintiffs must account for Democrats voting in their

primary. See Jones, 530 U.S. at 577-82 (recognizing the effects of

crossover voting on a political party’s right to freely associate).

Knowing that voters wholly unaffiliated with the plaintiffs’ party will

participate in their primary dramatically changes the plaintiffs’ deci-

sions about campaign financing, messages to stress, and candidates to

recruit. Because campaign planning decisions have to be made

months, or even years, in advance of the election to be effective, the

plaintiffs’ alleged injuries are actual and threatened. See New Mexi-

cans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500-01 (10th

Cir. 1995) (finding injury from the mere existence of a New Mexico

statute relating to campaign expenditures that caused congressman to

engage in fundraising differently than he otherwise would have, even

though the congressman had not yet announced his intention to run

for office).

The mere existence of the open primary law causes these decisions

to be made differently than they would absent the law, thus meeting

3

The open primary law inevitably causes crossover voting and also

allows for the strong possibility for organized party raiding. See Cling-

man v. Beaver, 544 U.S. 581, 596 (2005) (explaining the effects of party

raiding). The Supreme Court defines "party raiding" as "the organized

switching of blocs of voters from one party to another in order to manip-

ulate the outcome of the other party’s primary election." Anderson v.

Celebrezze, 460 U.S. 780, 788-89 n.9 (1983).

8 MILLER v. BROWN

the standing inquiry’s second requirement of a causal connection

between the plaintiffs’ injuries and the law they challenge. Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). The open pri-

mary law causes the plaintiffs to associate with Democrats during the

candidate-selection process. Under Virginia law, Democrats cross

over and vote in the Republican primary free of procedural impedi-

ments, such as changing voter registration or paying a fee. Account-

ing for Democrats in the primary causes the plaintiffs to alter

campaign decisions. See Jones, 530 U.S. at 581-82 ("Such forced

association has the likely outcome . . . of changing the parties’ mes-

sage.). "We can think of no heavier burden on a political party’s asso-

ciational freedom." Id. at 582. Undoubtedly, a causal connection

exists between the open primary law itself and the plaintiffs’ alleged

injuries.

This case is different from our decision in Marshall v. Meadows,

105 F.3d 904, 906 (4th Cir. 1997), which also presented a challenge

to Virginia’s open primary law. The Marshall plaintiffs lacked stand-

ing because the party’s decision to hold an open primary, not the open

primary law itself, caused their alleged injuries.4 Marshall, 105 F.3d

at 906. In this case, however, the plaintiffs want a closed primary, not

the open primary Virginia requires. Finding a causal connection

between the open primary law and the plaintiffs’ alleged injuries, the

plaintiffs satisfy the second component of standing.

The third component of standing requires the plaintiffs to show that

their injuries can be redressed by a favorable court decision. Lujan,

504 U.S. at 560. A favorable court decision in this case would allow

the plaintiffs to exclude Democrats from participating in their primary

and thus eliminate their alleged injuries. In Marshall, because the

party chose to have an open primary, we could not have redressed the

plaintiffs’ alleged injuries. Marshall, 105 F.3d at 906. We explained,

"If the Virginia Republican Party voluntarily elects an ‘open’ pri-

mary, which it is legally entitled to do, then there is nothing this court

can do to prevent the Virginia Republican Party from ‘forcing’ its

4

In Marshall, we declined to address the first component of standing—

whether the open primary law causes actual or threatened injury to a

political party—because it was apparent the plaintiffs could not establish

the second or third components. Marshall, 105 F.3d at 906 n.5.

MILLER v. BROWN 9

members to vote with non-Republicans." Id. In this case, the plain-

tiffs’ alleged injuries are redressable and thus satisfy the third compo-

nent of standing.

The plaintiffs’ alleged injuries (1) are actual and threatened, (2) are

fairly traceable to the statute they challenge, and (3) are redressable

by the court. Accordingly, the plaintiffs have standing.

B.

The doctrine of ripeness prevents judicial consideration of issues

until a controversy is presented in "clean-cut and concrete form." Res-

cue Army v. Mun. Court of L.A., 331 U.S. 549, 584 (1947). The bur-

den of proving ripeness falls on the party bringing suit. Renne v.

Geary, 501 U.S. 312, 316 (1991). Analyzing ripeness is similar to

determining whether a party has standing. See Erwin Chemerinsky,

Federal Jurisdiction § 2.4 (4th ed. 2003) ("Although the phrasing

makes the questions of who may sue and when they sue seem distinct,

in practice there is an obvious overlap between the doctrines of stand-

ing and ripeness.").

To determine whether the case is ripe, we "balance ‘the fitness of

the issues for judicial decision with the hardship to the parties of with-

holding court consideration.’" Franks v. Ross, 313 F.3d 184, 194 (4th

Cir. 2002) (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726,

733 (1998)). A case is fit for judicial decision when the issues are

purely legal and when the action in controversy is final and not

dependent on future uncertainties. Charter Fed. Sav. Bank v. Office

of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992). "The hard-

ship prong is measured by the immediacy of the threat and the burden

imposed on the [plaintiffs] who would be compelled to act under

threat of enforcement of the challenged law." Id. at 208-09. When

considering hardship, we may consider the cost to the parties of

delaying judicial review. Fort Sumter Tours, Inc. v. Andrus, 564 F.2d

1119, 1124 (4th Cir. 1977).

This case is fit for judicial review. The only issue in the case is

whether Virginia’s open primary law violates the plaintiffs’ First

Amendment rights to freely associate, which presents a purely legal

question. Rejecting the Board’s arguments that too many uncertainties

10 MILLER v. BROWN

exist to decide this case now, we find the only true uncertainty is

whether another candidate will file for office as contemplated by Sec-

tion 24.2-526.5 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.

In Babbitt v. United Farm Workers National Union, the Supreme

Court deemed ripe a First Amendment challenge to procedures gov-

erning the election of employee-bargaining representatives in Arizo-

na’s farm labor statute. The Court found the plaintiffs’ challenge ripe

even though they had not actually invoked the statute’s election pro-

cedures. Babbitt, 442 U.S. at 299. The plaintiffs’ challenge, based on

the procedures’ effect of frustrating rather than facilitating democratic

selection, was justiciable because "of the nature of their claim." Id. at

299-300. Like the plaintiffs in our case, the Babbitt plaintiffs claimed

the challenged statute imposed a continuing injury on their associa-

tional rights.6 Id. at 300. Although Babbitt dealt with internal labor

elections, the Court analogized the challenge in that case to chal-

5

In addition to the requirement for two candidates to file, the Board

relies on Section 24.2-516, which requires notification to the Board of a

local district’s selection of a method for nomination. This section speci-

fies notification must occur between February 22 and March 14, 2007.

Va. Code Ann. § 24.2-516. The statute, however, does not require the

plaintiffs to select their method of nomination during this time period; it

merely requires the Board "to inquire" about the method already chosen.

Id. The statute explains the Board must inquire to determine whether a

primary "has been adopted" by the local district. The verb choice indi-

cates the local district selects its method for nomination at some time

prior to the time period for the Board’s inquiry. Id.

6

Under the Board’s ripeness argument, the case cannot become ripe

until at least two candidates file for office. The reasoning supporting this

argument, however, suggests the Board believes the case is not actually

ripe until the first Democrat casts a vote in the Republican primary. The

Court explains the problems with this argument in Babbitt:

Though waiting until [the plaintiffs] invoke unsuccessfully the

statutory election procedures would remove any doubt about the

existence of concrete injury resulting from application of the

election provision, little could be done to remedy the injury

incurred in the particular election.

Babbitt, 442 U.S. at 301 n.12. Similarly, if we waited until after the elec-

tion to decide this case, redressing the plaintiffs’ injuries would be

impossible.

MILLER v. BROWN 11

lenges brought on the eve of pending governmental elections. Id. The

Court’s reasoning is helpful to our ripeness inquiry:

Challengers to election procedures often have been left

without a remedy in regard to the most immediate election

because the election is too far underway or actually consum-

mated prior to judgment. Justiciability in such cases depends

not so much on the fact of past injury but on the prospect

of its occurrence in an impending or future election. There

is value in adjudicating election challenges notwithstanding

the lapse of a particular election because "[the] construction

of the statute, an understanding of its operation, and possible

constitutional limits on its application, will have the effect

of simplifying future challenges, thus increasing the likeli-

hood that timely filed cases can be adjudicated before an

election is held."

Id. at 301 n.12 (emphasis in original) (citations omitted).

Bringing lawsuits on the eve of pending elections disrupts the elec-

toral process. Not only would a last-minute decision declaring Virgin-

ia’s open primary law unconstitutional affect the parties in the case,

but it would significantly affect non-parties as well. For example, the

votes of absentee voters who had mailed in their ballots could not

properly be considered. See Williams v. Rhodes, 393 U.S. 23, 35

(1968) (finding last-minute addition to ballot would pose "a risk of

interference with the rights of other [ ] citizens, for example, absentee

voters"). If we adopt the Board’s position that the courts should not

decide the case until another candidate files for office, courts would

have to decide the case between the last day for a candidate to file (60

days before the election) and the day absentee ballots are distributed

(approximately 30 days before the election). Providing only thirty

days for briefing, argument, and decision of a novel constitutional

question before the courts is troublesome.

In Simkins v. Gressette, 631 F.2d 287 (4th Cir. 1980), we dismissed

a challenge alleging South Carolina’s reapportionment plan unconsti-

tutionally diluted the plaintiffs’ votes. The Simkins plaintiffs brought

their claim just two days before the beginning of the filing period and

sixteen days before the filing deadline. Simkins, 631 F.2d at 295. We

12 MILLER v. BROWN

explained, "Although the court below expedited this matter as best

possible, the hearing did not occur until the filing deadline had passed

and only 5 1/2 weeks remained before the primary elections them-

selves." Id. at 295-96. Finding the plaintiffs could have brought suit

as early as three years earlier, we stated the plaintiffs should have

brought suit earlier to avoid a "major disruption" in the pending elec-

tion. Id. at 296. In deciding Simkins, we relied on our reasoning from

Maryland Citizens for a Representative General Assembly v. Gover-

nor of Maryland, 429 F.2d 606 (4th Cir. 1970), where we upheld a

district court’s refusal to convene a three-judge district court to decide

a suit filed thirteen weeks prior to the filing deadline that challenged

an apportionment plan. Maryland Citizens, 429 F.2d at 607. "The

maintenance of such a suit at that time, [we] concluded, would have

resulted in great disruption in the election process." Simkins, 631 F.2d

at 295 (explaining Maryland Citizens).

Waiting until at least two candidates file for office likely would

provide insufficient time to decide the case without disrupting the

pending election. That delay would force the plaintiffs to bring suit

closer to the date of the primary than either the plaintiffs in Simkins

or the plaintiffs in Maryland Citizens. Moreover, striking down Vir-

ginia’s open primary law on the eve of the election would seriously

disrupt the election process.

The district court also based its ripeness decision on the fact "[t]he

Board has made no formal decisions concerning the 2007 election."

J.A. 111. The Board is charged with carrying out Virginia’s election

laws. See Va. Code Ann. § 24.2-103 (detailing the Board’s duties). At

no point has the Board, or any other State actor, suggested that the

open primary law will not be enforced. See Virginia v. Am. Booksell-

ers Ass’n, 484 U.S. 383, 393 (1988) (finding standing to seek pre-

enforcement review of statute where no evidence that law would not

be enforced). The Board’s February 9, 2005 letter and the Assistant

Attorney General’s concession at oral argument are further evidence

the law will be enforced.

Turning to the hardship prong, the plaintiffs would suffer undue

hardship by waiting until the eve of the election to seek a decision in

their case. The open primary law causes immediate harm to their con-

stitutionally protected rights because they know Democrats will be

MILLER v. BROWN 13

participating in their primary; if, however, the plaintiffs’ challenge is

successful, these Democrats will be precluded from participating. By

obtaining a final decision now, the plaintiffs will have adequate time

to make effective campaign decisions. Waiting until the last minute

to seek a final ruling will severely diminish the effectiveness of these

decisions. The plaintiffs’ injuries become worse each day decision is

delayed. See Reg’l Rail Reorganization Cases, 419 U.S. 102, 123-24

(1974) (finding plaintiffs’ injuries accelerated by delaying decision on

the applicability of the Tucker Act).

This case is fit for judicial review. Accordingly, we find the case

ripe for decision.

III.

The district court erred in concluding the plaintiffs lack standing

and the case is not ripe. The case is remanded for consideration of the

merits.

REVERSED AND REMANDED