United States Fourth Circuit

In a suit against a state elections board claiming that an open primary law was both facially unconstitutional and unconstitutional as applied to the plaintiffs, an order finding the statute unconstitutional as applied and enjoining its enforcement, but rejecting the claim that the law was facially unconstitutional, is affirmed where: 1) on the facts of the case, the open primary law severely burdened the plaintiff's associational rights; 2) the defendants did not show a compelling state interest justifying a severe burden on the plaintiff's right of association; and 3) because Virginia makes available to political parties multiple options for restricting their candidate selection process to individuals of their choosing, the refusal by the state to fund and operate a closed primary does not burden parties' right of association, thus the statute was not facially unconstitutional.

Appellate Information

• Argued 03/19/2007
• Decided 10/02/2007
• Published 10/02/2007

Judges

• Before DUNCAN, Circuit Judge, and WIDENER  and WILKINS, Senior Circuit Judges.

Court

• United States Fourth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Frank Snead Ferguson, Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/Cross-Appellees.   Kenneth Thomas Cuccinelli, II, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia, for Appellees/Cross-Appellants.   ON BRIEF:  Robert F. McDonnell, Attorney General of Virginia, William E. Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solicitor General, William C. Mims, Chief Deputy Attorney General, Maureen Riley Matsen, Deputy Attorney General, J. Jasen Eige, Senior Assistant Attorney General, James V. Ingold, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants/CrossAppellees.  Christopher M. Day, Paul A. Prados, Cuccinelli & Day, P.L.L.C., Fairfax, Virginia;  Patrick M. McSweeney, Wesley G. Russell, Jr., Jeffrey L. Cimbalo, McSweeney, Crump, Childress & Gould, P.C., Richmond, Virginia, for Appellees/CrossAppellants.  Louis N. Joynes, II, Joynes & Gaidies, Virginia Beach, Virginia, for Amicus Supporting Appellees/Cross-Appellants.