Here we go again: RPV resurrects lawsuit in Emmett Hanger’s 24th Senate District

By Lynn R. Mitchell

Saturday’s State Central Committee meeting in Staunton had barely been called to order when a dispute arose about an added agenda item and the order in which it would be heard.

The 24th Senate District lawsuit that had seen a federal judge rule against the 24th Legislative District Committee (see 24th Senate District: Court upholds laws of Commonwealth, Hanger gets primary) was resurrected even though it was not originally on the official agenda that was sent out by Chairman John Whitbeck. It had been added in the week before the meeting, a matter that brought protests from some but they were overruled and the matter was added as the second item to be addressed.

Please note that the referenced “Incumbent Protection Act” is a made-up name by those pushing the lawsuit.

Here is the email that was sent to State Central Committee members outlining the background and desire by SCC to change the method that incumbent elected officials have for re-election:

State Central Committee Members:

Republican Party of Virginia Chairman Whitbeck requested a Committee be formed to evaluate and make recommendations concerning the 24^th Republican Senate Legislative District Committee Appeal of the Dismissed Lawsuit concerning Virginia Code § 24.2-509 (b), commonly known as the Incumbent Protection Act.  Persons appointed to that committee are State Central Committee members: Carl Anderson (Chair), Anne Fitzgerald, and Steve Albertson.

Federal Judge Elizabeth Dillon, in her official opinion dismissing the 24^th District Lawsuit, said that “Neither the State Central Committee nor the RPV itself has sought to intervene and no party has offered any evidence as to what the Party meant by the disputed provision.”  The Judge further states “The State Central Committee and the RPV are not parties to this case and their interpretation of the Plan is unknown.” And therefore the Judge states that “the court concludes that the Plan does not confer the authority on the Committee to select a method in the circumstances here. Thus, its “injury,” if any, is not caused by the Act, but by the limited delegation in the Plan itself.”

Conclusions of the Committee:

An Amicus Curiae Brief refuting the erroneous conclusions of Judge Dillon and clearly confirming RPV support of the 24th Senate District Committee Standing to bring the lawsuit and their position that Virginia Code 24.2-509 (b) (the so called Incumbent Protection Act) is Unconstitutional should be submitted to the 4th Circuit Court of Appeals not later than July 6, 2015.  As a minimum, the Brief must include two points: 1.) The State Central Committee confirms the 24th District Committee does have the authority to select the nomination method used by the District, and 2.) The State Central Committee considers VA Code 24.2-509(b) (the Incumbent Protection Act) is unconstitutional.  It is recommended that Patrick McSweeney be retained (at no cost to the RPV) to represent the RPV to file the Amicus Curiae Brief.  This is a time sensitive issue that must be addressed at the June 27 SCC meeting.

Premise: Political Parties should be able to determine who participates in their Party functions.  We try to restrict participation to those who “are in agreement with the principles of the Republican Party of Virginia”.   The Virginia General Assembly passed into law a section that takes away that Freedom of Association and gives themselves (the 140 Incumbents) a special advantage in the Electoral Process that is not extended to the remaining citizens of the Commonwealth, including potential challengers.

Background:

Virginia Code § 24.2-509 states that Political Parties may select the nomination method of their Party Candidates except that Party Incumbents in the General Assembly can overrule the Party’s choice of nomination method and select the nomination method most advantageous for their re-election.  This section of the Virginia Code has become known as the “Incumbent Protection Act”.

The 24^th Republican Senate Legislative District Committee selected a convention as the nomination method for the 24^th District.  Incumbent Senator Emmett Hanger selected an Open Primary as the nomination method in accordance with the Virginia Code.  The Virginia Department of Elections recognized Senator Hanger’s choice and ordered an Open Primary to be held.  The 24^th District Committee filed a lawsuit in Federal Court stating the Incumbent Protection Act (the Act) is Unconstitutional in that it interfered with the Party’s right to Free Association under the 1^st Amendment and the Act violates the Equal Protection Clause of the 14^th Amendment.

As stated above, Federal Judge Elizabeth Dillon dismissed the 24^th District Lawsuit indicating that the Republican Party of Virginia Plan of Organization (Party Plan) did not give Legislative District Committees the authority to select the method of nomination.  The 24^th Republican Senate District Committee has appealed this Decision to the 4^th Circuit Court of Appeals.  This provides an excellent opportunity for the Republican Party of Virginia to express to the Court that we do have an interest in this case and refute Judge Dillon’s erroneous conclusions.  We should emphasize the impact of the so called “Incumbent Protection Act” (Virginia Code § 24.2-509 (b)) has in adversely affecting our 1^st Amendment Right to Freedom of Association and also its impact on the 14^th Amendment Right to Equal Protection under the law.  We should also emphasize that the Plan of Organization (Party Plan) routinely and consistently delegates the authority to select the Nomination Method to the appropriate Committee.  In this case, the 24^th Republican Senate Legislative District Committee is the appropriate committee to select the Nomination Method to be used to select the Republican Nominee in the 24^th District.  Therefore, the 24^th District Committee should have Standing to represent the RPV in this case and the State Central Committee should reinforce that position through an Amicus Curiae Brief to the Court.

Please find attached a more thorough description and background documents.

Carl Anderson
SCC, 2^nd District
Hampton GOP Chair

The lawsuit was on the minds of many in the recent primary that saw Senator Emmett Hanger challenged by two tea party candidates — Dan Moxley who had statewide tea party backing and Supervisor Marshall Pattie who had local tea party backing. The legal challenge perhaps was instrumental in spurring many to the polls on June 9th to vote for Hanger who won overwhelmingly with 60 percent (see Emmett Hanger wins huge in 24th Senate District).

Now the Republican Party of Virginia is stepping into the fray. This lawsuit, if successful, would affect every elected official in Virginia. Stay tuned….