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'Incumbent Protection Act' is unconstitutional.

Byline: Virginia Lawyers Weekly

In rejecting the commonwealth's challenge to a decision that the "Incumbent Protection Act" violates the First Amendment, the court found the law's operative provisions are unconstitutional and impose a "severe" burden on the associational rights of Virginia's political parties.


The 6th Congressional District Republican Committee argues that Virginia's Incumbent Protection Act, Virginia Code 24.2-509(B), violates the First Amendment of the Constitution. The district court agreed and enjoined 24.2-509(B) in its entirety.


Subsection 24.2-509(A) grants the "duly constituted authorities" of the commonwealth's political parties considerable discretion in selecting the method of choosing their nominees. The Incumbent Protection Act, subsection 24.1-509(B), carves exceptions to this rule in favor of incumbents.

The second and third sentences allow incumbent members of the General Assembly to dictate the method their party shall use in selecting the nominee for the office that incumbent holds. The fourth sentence allows incumbent members of the U.S. House of Representatives, who were themselves nominated by primary in the last election cycle, to require their party to use a primary in the current election cycle to nominate a candidate for the office they hold if they themselves are seeking reelection. In short, the associational rights of Virginia's political parties that are recognized and protected by 24.2-509(A) are taken away by 24.1-509(B) and given instead to a single individualthe incumbent.

Because the provision of the Incumbent Protection Act which protects congressional incumbentsthe fourth sentenceimposes a "severe" burden on the associational rights of Virginia's political parties, the commonwealth must show that it is "narrowly tailored to serve a compelling state interest." It cannot make this showing. This delegation of power over the party to the incumbent office holder is not narrowly tailored to meet the commonwealth's asserted interest. Under the terms of the statute, the interest in democratic resolution of intraparty disputes will only be vindicated when and where an incumbent office holder decides that it is in his interest to do so. It is implausible that the General Assembly would seek to vindicate this interest in such an odd, uneven, and underinclusive fashion. Instead, the text and structure of the law gives rise to the strong suggestion that the Incumbent Protection Act serves a different interest: the interest, unsurprisingly, in incumbent protection.

To be sure, incumbent protection is not per se an unconstitutional interest. In the context of redistricting, the Supreme Court has historically allowed maps to stand that were drawn with the electoral interest of incumbents in mind. But the court has not held that the interest in incumbent protection is a compelling one that can justify such direct intrusions on the First Amendment. Incumbent protection is simply not a strong enough interest here to justify the severe burden on the appellee's associational rights.

The district court also enjoined enforcement of the Act's second and third sentences, which protect the nomination prerogatives of incumbent members of the General Assembly. The commonwealth argues that this was improper, as the committee lacked standing to challenge those provisions. We disagree. The committee suffered cognizable, traceable and redressable injury from the commonwealth's application of those sentences to its activities. And the second and third sentences are, if anything, even more offensive to the First Amendment than the fourth. Accordingly, we affirm the district court's decision to enjoin the second and third sentences on 24.2-509(B) as well.

The department argues that the challenge to the second and third sentences became moot when the department updated the offending election forms. But the update occurred after the lawsuit had been filed. Promulgating new forms may well have been the right thing to do in accordance with state law. But we have little confidence that the forms will not revert back if we hold that this lawsuit is moot. Indeed, that danger is particularly acute when, as here, a change in the forms would confer benefits upon political incumbents. The department's suggestion of mootness is accordingly denied.

The department raises yet one more challenge, arguing that the district court was wrong to enjoin the Incumbent Protection Act in its entirety. The Act comprises six sentences. We have now found that each of its operative provisionsnamely the second, third and fourth sentencesis unconstitutional. The remaining sentences merely explain how to apply them. The district court did not abuse its discretion in enjoining the Incumbent Protection Act in its entirety.


6th Congressional District Republican Committee v. Fitzgerald, Appeal No. 18-1111, Jan. 9, 2019. 4th Cir. (Wilkinson), from W.D. Va. at Harrisonburg (Urbanski). Toby Jay Heytens for Appellants, Jeffrey R. Adams for Appellee. VLW No. 019-2-012, 24 pp.

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Title Annotation:Virginia law, 6th Congressional District Republican Committee v. Fitzgerald, U.S. Court of Appeals for the 4th Circuit
Publication:Virginia Lawyers Weekly
Date:Jan 28, 2019
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