Miller v. Brown

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

LARRY MILLER; 11TH SENATORIAL 
DISTRICT REPUBLICAN COMMITTEE,
Plaintiffs-Appellees,
v.
MICHAEL BROWN, in his official
capacity as Chairman of the
Virginia State Board of Elections;
BARBARA HILDENBRAND, in her
official capacity as Vice-Chairman  No. 06-2334
of the Virginia State Board of
Elections; JEAN JENSEN, in her
official capacity as Secretary of the
Virginia State Board of Elections,
Defendants-Appellants.

REPUBLICAN PARTY OF VIRGINIA,
Amicus Supporting Appellees.

2 MILLER v. BROWN

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;
BARBARA HILDENBRAND, in her
official capacity as Vice-Chairman  No. 07-1002
of the Virginia State Board of
Elections; JEAN JENSEN, in her
official capacity as Secretary of the
Virginia State Board of Elections,
Defendants-Appellees.

REPUBLICAN PARTY OF VIRGINIA,
Amicus Supporting Appellants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:05-cv-00266-HEH)

Argued: March 19, 2007

Decided: October 1, 2007

Before DUNCAN, Circuit Judge, and WIDENER1 and
WILKINS, Senior Circuit Judges.

1
Judge Widener heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
 MILLER v. BROWN 3
Affirmed by published opinion. Senior Judge Wilkins wrote the opin-
ion, in which Judge Duncan joined.

COUNSEL

ARGUED: Frank Snead Ferguson, Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants/Cross-Appellees. Kenneth Thomas Cuccinelli, II, CUCCI-
NELLI & 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/Cross-
Appellees. 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, CHIL-
DRESS & GOULD, P.C., Richmond, Virginia, for Appellees/Cross-
Appellants. Louis N. Joynes, II, JOYNES & GAIDIES, Virginia
Beach, Virginia, for Amicus Supporting Appellees/Cross-Appellants.

OPINION

WILKINS, Senior Circuit Judge:

Three officials of the Virginia State Board of Elections (collec-
tively, "the Board") appeal a district court order holding that Virgin-
ia’s open primary law, Va. Code Ann. § 24.2-530 (2006), is
unconstitutional as applied to the 11th Senatorial District Republican
Committee and its chairman, Larry Miller,2 and enjoining the Board
from requiring the Committee to hold an open primary in Virginia’s
11th Senatorial District in 2007. The Committee cross-appeals
2
We refer to the 11th Senatorial District Republican Committee and
Miller collectively as "the Committee."
4 MILLER v. BROWN
another portion of that order holding that § 24.2-530 is not facially
unconstitutional. For the reasons that follow, we affirm the district
court order in its entirety.

I.

On June 4, 2004, the Republican Party of Virginia amended its
Plan of Organization (Plan) to allow its affiliated committees, of
which the Committee is one, to exclude from the Republican nomina-
tion process any voter who participated in the nomination process of
another party in Virginia "after March 1, 2004, or in the last five
years, whichever is more recent." J.A. 20. The Plan provides an
exception for voters who, in writing, renounce their affiliation with
any other party, indicate their agreement with Republican Party prin-
ciples, and express their intent to support Republican nominees. The
amended Plan became effective on June 15, 2006.

The Committee oversees the nomination process for the Republi-
can candidate for the 11th District seat in the Senate of Virginia. Ste-
phen Martin, a Republican, currently holds the seat and is running for
reelection this year. Under Virginia law, an incumbent state legislator
is entitled to select the method of nomination for his seat. See Va.
Code Ann. § 24.2-509(B) (2006). Virginia allows nomination of can-
didates not only by a primary—which is conducted and funded by the
state—but also "by methods other than a primary." Va. Code Ann.
§ 24.2-510 (2006). Such other methods, which are conducted and
funded by the party, include (but are not limited to) a party conven-
tion, see Va. Code Ann. § 24.2-508(ii) (2006); a mass meeting, also
known as a "caucus"; and a party canvass or unassembled caucus,
also called a "firehouse primary."3

In August 2004, Senator Martin designated a primary as the
method of nomination in the 11th District for the 2007 election. In
accordance with Senator Martin’s designation, the Committee, on
January 13, 2005, formally recognized that a primary would be used
to select its nominee. Consistent with the amendments to the Plan, the
Committee chose to exclude voters who had voted in a Democratic
3
A firehouse primary is the functional equivalent of a state-run primary
except that the party operates and funds the entire process.
 MILLER v. BROWN 5
Party primary between March 1, 2004, and June 12, 2007 (the date
of the Republican primary), except those voters who complied with
the written "loyalty" requirements of the Plan. In a letter dated Janu-
ary 17, 2005, Miller informed the Board of the Committee’s decision.
His letter requested "written confirmation . . . of the [Board’s] inten-
tion to implement the above-noted restrictions on the participation by
Democrats in our primary." J.A. 42.

On February 9, 2005, the Board’s Secretary, Jean R. Jensen,
replied to Miller by letter. Jensen stated that the Committee could take
whatever action it deemed appropriate under the Plan. Jensen noted,
however, that the only provision of Virginia law allowing political
parties to restrict primary voters’ eligibility was the statute governing
presidential primaries. See Va. Code Ann. § 24.2-545(A) (2006). Fur-
ther, Jensen cited Virginia’s open primary law, Va. Code Ann. § 24.2-
530, which provides:

All persons qualified to vote, pursuant to [Va. Code Ann.]
§§ 24.2-400 through 24.2-403, may vote at the primary. No
person shall vote for the candidates of more than one party.

Jensen explained that unless the Committee could "point to a specific
provision" of Virginia election law authorizing the Board to restrict
voting in the 2007 11th District primary, the Board would "have to
comply with the law of the Commonwealth in effect at that time."4
J.A. 45.

The Committee subsequently brought this action against the Board
under 42 U.S.C.A. § 1983 (West 2003), seeking a declaration that
§ 24.2-530 violates the Committee’s First and Fourteenth Amendment
right of free association. The Board moved to dismiss, arguing, inter
alia, that the Committee lacked standing and that the case was not yet
4
Jensen further explained that in accordance with Va. Code Ann.
§ 24.2-516 (2006), the Board "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. 44 (emphasis omitted). At oral argument, counsel for the
Committee confirmed that Senator Martin had resubmitted his designa-
tion of a primary within the time frame required by § 24.2-516.
6 MILLER v. BROWN
ripe. The district court granted the Board’s motion to dismiss on
standing and ripeness grounds. See Miller v. Brown, 394 F. Supp. 2d
794, 802-03 (E.D. Va. 2005). We reversed, holding that the Commit-
tee possessed standing and that the case was ripe. See Miller v.
Brown, 462 F.3d 312, 316-21 (4th Cir. 2006). We thus remanded for
"consideration of the merits." Id. at 321.

On remand, the Committee moved for summary judgment, arguing
that § 24.2-530 was unconstitutional on its face and as applied to the
Committee. The Committee also moved for a permanent injunction
prohibiting enforcement of the statute. After a hearing, the district
court held that the open primary law was not facially unconstitutional
because Virginia law permitted other methods of nomination under
which a political party could restrict participation in its nominating
process to voters who share its political beliefs. See Miller v. Brown,
465 F. Supp. 2d 584, 592-93 (E.D. Va. 2006). Regarding the as-
applied challenge, however, the court determined that § 24.2-530
severely burdened the Committee’s associational rights because Sena-
tor Martin’s selection of a primary as the method of nomination
forced the Committee to use a nomination process that prevented it
from excluding voters with whom it did not wish to associate. See id.
at 594. The court further held that the Board had provided no compel-
ling state interest justifying this burden. See id. at 594-95. The court
thus concluded that § 24.2-530 was unconstitutional as applied to the
Committee. See id. at 595. Accordingly, the court enjoined the Board
from requiring the Committee to hold an open primary in 2007. See
id. On the Board’s motion, the district court stayed the injunction
pending the outcome of this appeal. See id. at 597.

II.

We review de novo the district court rulings concerning the consti-
tutionality of § 24.2-530.5 See United States v. Fulks, 454 F.3d 410,
5
Although the district court nominally denied summary judgment on
the Committee’s facial constitutional challenge, the effect of the district
court order was to finally decide all claims asserted and all forms of
relief requested by the Committee. We thus have jurisdiction over both
the Board’s appeal of the as-applied ruling and the Committee’s cross-
 MILLER v. BROWN 7
437 (4th Cir. 2006), cert. denied, 127 S. Ct. 3002 (2007). In consider-
ing a constitutional challenge to a state election law, "we first exam-
ine whether [the law] burdens rights protected by the First and
Fourteenth Amendments." Eu v. San Francisco County Democratic
Cent. Comm., 489 U.S. 214, 222 (1989). If the law at issue "burdens
the rights of political parties and their members, it can survive consti-
tutional scrutiny only if the State shows that it advances a compelling
state interest and is narrowly tailored to serve that interest." Id. (cita-
tions omitted).

A.

We first address the Committee’s claim that the open primary law
is facially unconstitutional. The Committee argues that § 24.2-530

appeal of the facial ruling. See Henglein v. Colt Indus. Operating Corp.,
260 F.3d 201, 211 (3d Cir. 2001) (holding that district court decision in
declaratory judgment action, denying certain requests for declaration,
was final and appealable because "the court issued a judgment and a rul-
ing on every issue submitted"); cf. Gencorp, Inc. v. Olin Corp., 390 F.3d
433, 443 (6th Cir. 2004) (holding that resolution by district court of par-
ticular claim "satisfie[d] the finality requirement" of Fed. R. Civ. P. 54(b)
and 28 U.S.C.A. § 1291 (West 2006) because court "provided an ‘ulti-
mate disposition’ of the claim and addressed all forms of relief
requested").
After the time period for candidate filing had closed, see Va. Code
Ann. § 24.2-522(A) (2006), the Committee informed us that no one had
filed to challenge Senator Martin in the 2007 primary. Thus, under Vir-
ginia law, Senator Martin has been declared the Republican nominee for
the 11th District seat, and no Republican primary will be held for that
seat in 2007. See Va. Code Ann. § 24.2-526 (2006). On this basis, the
Board has moved to dismiss the appeals as moot and to vacate the district
court order. We conclude, however, that the case is not moot because it
presents issues that are "capable of repetition, yet evading review."
S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); cf. Storer v.
Brown, 415 U.S. 724, 737 n.8 (1974) (explaining that this doctrine is
properly applied in cases involving facial or as-applied challenges to
election statutes when election at issue has passed but same questions are
likely to arise in future elections); Miller, 462 F.3d at 319-21 (discussing,
in context of ripeness analysis, practical difficulties in waiting until sec-
ond candidate files for office before bringing suit to challenge open pri-
mary law).
8 MILLER v. BROWN
impermissibly burdens the right of political parties to associate freely
with others who share their political beliefs. The Committee contends
that by requiring a party to include in its primary voters who may not
share its views, the open primary law alters the party’s candidate
selection process and the political message that the party conveys to
the public.

The Supreme Court has made clear that "the First Amendment pro-
tects ‘the freedom to join together in furtherance of common political
beliefs.’" Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000)
(quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 214
(1986)). In particular, the Court has "vigorously affirm[ed] the special
place the First Amendment reserves for, and the special protection it
accords, the process by which a political party ‘select[s] a standard
bearer who best represents the party’s ideologies and preferences.’"
Id. at 575 (quoting Eu, 489 U.S. at 224 (second alteration in origi-
nal)). The Court has also recognized that "a corollary of the right to
associate is the right not to associate." Id. at 574. "Freedom of associ-
ation would prove an empty guarantee if associations could not limit
control over their decisions to those who share the interests and per-
suasions that underlie the association’s being." Democratic Party of
the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122
n.22 (1981) (internal quotation marks omitted). And, "[i]n no area is
the political association’s right to exclude more important than in the
process of selecting its nominee." Jones, 530 U.S. at 575.

The Supreme Court has applied these principles in a series of deci-
sions involving state primary statutes. In La Follette, the Court held
that the State of Wisconsin could not compel the National Democratic
Party to seat at its convention delegates selected in Wisconsin’s open
presidential primary when the voters in that primary did not declare
their party affiliation, as required by Democratic Party rules. See id.
at 126. The Court concluded that requiring the Party to seat delegates
selected in violation of Party rules would impose a substantial burden
on the Party’s associational freedom, and that the state had not articu-
lated a compelling interest justifying this burden. See id. at 120-26.
The Court stressed that "the freedom to associate for the common
advancement of political beliefs necessarily presupposes the freedom
to identify the people who constitute the association, and to limit the
association to those people only." Id. at 122 (citation & internal quo-
 MILLER v. BROWN 9
tation marks omitted). Further, the Court recognized that "the inclu-
sion of persons unaffiliated with a political party may seriously distort
its collective decisions—thus impairing the party’s essential functions
—and [therefore] political parties may . . . protect themselves from
intrusion by those with adverse political principles." Id. (internal quo-
tation marks omitted).

In Tashjian, the Court considered the constitutionality of a Con-
necticut statute requiring voters in any political party’s primary to be
registered members of that party. See Tashjian, 479 U.S. at 210-11.
The Republican Party of Connecticut had adopted a rule permitting
independent voters—registered voters not affiliated with any party—
to vote in Republican primaries. See id. at 210. The Party challenged
the state’s voter eligibility statute on the ground that it violated the
Party’s right to associate politically with individuals of its choosing.
See id. at 211. The Court held that the statute burdened the Party’s
associational rights because it restricted the group of voters whom the
Party could "invite to participate in the basic function of selecting the
Party’s candidates." Id. at 215-16 (internal quotation marks omitted).
The statute, the Court explained, "limit[ed] the Party’s associational
opportunities at the crucial juncture at which the appeal to common
principles may be translated into concerted action, and hence to politi-
cal power in the community." Id. at 216. And, the Court held that the
state had offered no compelling justification for this burden. See id.
at 217-25. The Court thus concluded that the statute was unconstitu-
tional as applied to the Party. See id. at 225.

In Jones, the Court addressed the constitutionality of California’s
blanket primary system, in which "each voter’s primary ballot . . .
lists every candidate regardless of party affiliation and allows the
voter to choose freely among them," with the candidate of each party
who wins the most votes becoming the nominee of that party for the
general election. Jones, 530 U.S. at 570. Various political parties,
each of which had adopted a rule prohibiting nonmembers from vot-
ing in the party’s primary, challenged the blanket primary law on the
ground that it violated their associational rights. See id. at 571. The
Court agreed that the law impermissibly burdened the parties’ right
of free association, emphasizing that it "forces political parties to
associate with—to have their nominees, and hence their positions,
determined by—those who, at best, have refused to affiliate with the
10 MILLER v. BROWN
party, and, at worst, have expressly affiliated with a rival." Id. at 577.
The Court could conceive of "no heavier burden on a political party’s
associational freedom." Id. at 582. Further, the Court concluded that
the state had offered no compelling interest warranting this severe
burden. See id. at 582-86.

By contrast, in Clingman v. Beaver, 544 U.S. 581 (2005), the Court
rejected a First Amendment challenge to Oklahoma’s semiclosed pri-
mary system, which allowed a political party to invite only its own
members and voters registered as Independents to vote in the party’s
primary. See id. at 584. The Libertarian Party of Oklahoma (LPO) and
several Republican and Democratic voters brought the action after the
state refused the LPO’s request to open its primary to all voters with-
out regard to party affiliation. See id. at 584-85. The Court distin-
guished the Oklahoma primary law from the one struck down in
Tashjian, which prevented a party from allowing independent voters
to participate in its primary. See id. at 592-93. The Court noted that
the Oklahoma law only prevented the LPO from associating with vot-
ers who had already affiliated publicly with another party. See id. at
587, 592. The Court thus held that the semiclosed primary system
imposed only a minor burden on the LPO’s associational rights, and
that the state had advanced important regulatory interests justifying
that burden. See id. at 587, 593-97.6
(Text continued on page 12)

6
In a portion of the Clingman opinion joined by only three other Jus-
tices, Justice Thomas concluded that the LPO and voters already regis-
tered with another party had, at most, a minimal constitutional interest
in associating with each other. See Clingman, 544 U.S. at 587-89 (Opin-
ion of Thomas, J.). Justice Thomas reasoned that "a voter who is unwill-
ing to disaffiliate from another party to vote in the LPO’s primary forms
little ‘association’ with the LPO—nor the LPO with him." Id. at 589. In
a concurring opinion, Justice O’Connor (joined by Justice Breyer) dis-
agreed with the plurality opinion regarding the importance of the associa-
tional interests at issue, rejecting the premise "that a voter forms a
cognizable association with a political party only by registering with that
party." Id. at 600 (O’Connor, J., concurring in part & concurring in the
judgment). Justice O’Connor expressed the view that "[t]he act of casting
a ballot in a given primary may, for both the voter and the party, consti-
tute a form of association that is at least as important as the act of regis-
tering." Id. at 601. She agreed with the plurality, however, that the
 MILLER v. BROWN 11
semiclosed primary law at issue imposed only a modest burden on the
LPO’s associational rights and that the state had articulated sufficient
regulatory interests warranting that burden. See id. at 604.
"When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds." Marks v. United
States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). In
Clingman, Justices O’Connor and Breyer concurred in the judgment on
the narrowest grounds. Although rejecting the conclusion of the plurality
that the associational interests at issue were of only minimal importance,
the concurring Justices agreed with the plurality that the semiclosed pri-
mary system imposed only a minor burden on the LPO’s associational
rights and that there were adequate state interests justifying that burden.
We must therefore view the latter position as the holding of the Court.
See United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005).
We thus are not bound to accept the concurring Justices’ view regard-
ing the importance of the associational interests at stake or their view of
the associational bond created by the act of voting in one party’s pri-
mary. Indeed, the Court has never adopted the view of the Clingman con-
curring Justices concerning the associational bond formed by voting in
a party primary. But cf. Jones, 530 U.S. at 577 n.8 (noting in dicta that
a blanket primary—in which the ballot lists candidates from all parties
for each office and all voters are permitted to vote—"may be constitu-
tionally distinct from the open primary, in which the voter is limited to
one party’s ballot" because the act of voting in one party’s primary
"‘fairly can be described as an act of affiliation’" with that party (quoting
La Follette, 450 U.S. at 130 n.2 (Powell, J., dissenting)) (citation omit-
ted)).
In any event, we need not resolve today whether the act of voting in
one party’s primary affiliates a voter with the party sufficiently to protect
the party’s right to associate with those who share its political beliefs. As
explained herein, we do not decide whether the open primary statute,
viewed in isolation, impermissibly burdens a political party’s associa-
tional rights, because it clearly does not do so in light of the other meth-
ods of nomination permitted by Virginia law, under which a party is free
to exclude voters with whom it does not wish to associate. And, as noted
infra, at 14, we need not decide this question in reviewing the as-applied
ruling because the Board does not challenge the holding of the district
12 MILLER v. BROWN
Here, we need not decide whether Virginia’s open primary statute,
viewed in isolation, impermissibly burdens a political party’s right to
associate with those who share its beliefs. That is because it is clear
that § 24.2-530—when properly viewed in the context of other meth-
ods of nomination permitted by Virginia law—does not facially bur-
den political parties’ associational rights.

As explained above, Virginia allows political parties to nominate
candidates not only by state-run primary but also by other methods
controlled and funded by the party. And, by merely choosing any of
these other options, a party is free to limit its candidate selection pro-
cess to voters who share its political views. Thus, the "forced associa-
tion" that the Supreme Court has condemned, Jones, 530 U.S. at 581,
simply is not present here. Indeed, neither of the two Supreme Court
decisions holding primary laws unconstitutional involved a statute
that represented only one of several options for candidate nomination.
See id. at 569 (indicating that under California law, political parties
could only nominate candidates through primaries); cf. Tashjian, 479
U.S. at 211 (explaining that although political parties in Connecticut
used conventions to select a "party-endorsed candidate," any candi-
date not endorsed by the party but who received at least 20 percent
of the votes at the convention could challenge the party-endorsed can-
didate in a primary). We agree with the district court that it is consti-
tutionally significant that the primary laws in those cases were "both
mandatory and exclusive." Miller, 465 F. Supp. 2d at 591.

The Committee nevertheless argues that because Virginia allows
political parties to select their candidates by primary, a party has a
constitutional right to restrict participation in the primary to persons
of its choosing. But as the district court emphasized, a party has no
constitutional right even to select its nominees by primary. See Am.
Party of Tex. v. White, 415 U.S. 767, 781 (1974) (holding that states
may dictate the method by which political parties select their nomi-
nees). Further, while the Committee argues that a primary has certain
advantages over other forms of nomination—such as reduced cost to
the party and broader exposure of party candidates to the public—

court that forcing the Committee to conduct an open primary severely
burdens its right of free association.
 MILLER v. BROWN 13
there is no constitutional requirement that Virginia hold a primary at
all. And, again, a party is free to select from various methods of nomi-
nation in which it can exclude voters who do not share its views—
including a closed primary conducted and funded by the party.7 It is
only when the party chooses to hold a primary operated and funded
by the state that it must allow all voters to participate.

In sum, because Virginia makes available to political parties multi-
ple options for restricting their candidate selection process to individ-
uals of their choosing, the refusal by the state to fund and operate a
closed primary does not burden parties’ right of association. See Mil-
ler, 465 F. Supp. 2d at 595 (holding that "[s]ection 24.2-530 is consti-
tutionally sound when engrafted onto a statutory scheme providing
for alternative, less restrictive means of candidate selection"). We
therefore affirm the holding of the district court that § 24.2-530 is
facially constitutional.

B.

We next consider the Board’s contention that the district court
erred in holding § 24.2-530 unconstitutional as applied to the Com-
mittee. The district court found that Senator Martin’s selection of a
primary as the method of nomination pursuant to § 24.2-509(B) "for-
ce[d] the . . . Committee to conduct a mandatory open primary for the
selection of the party candidate." Id. at 594. And, relying on language
from our prior opinion in this case, the court determined that "the type
of forced association caused by a mandatory open primary causes sig-
nificant injury to the First Amendment rights of a political party." Id.;
see Miller, 462 F.3d at 317-18 (discussing, in context of standing
analysis, constitutional injuries suffered by Committee as a result of
open primary law). Further, applying strict scrutiny, the court held
that the various state interests offered by the Board in support of the
open primary law were not compelling. See Miller, 465 F. Supp. 2d
at 594-95. The court thus concluded that "[w]hile § 24.2-530 survives
facial constitutional challenge, it is constitutionally infirm as applied
to the narrow facts of this case." Id. at 595.
7
See supra, at 4 & n.3.
14 MILLER v. BROWN
1.

The Board does not challenge the conclusion of the district court
that forcing the Committee to select its candidate through an open pri-
mary severely burdens its right of free association. Indeed, the Board
concedes that if a political party is compelled to select its candidates
"by means of a state-run primary, the State[ ] may not force [the]
party to include . . . voters [in] that primary." Opening Br. at 16; see
Miller, 465 F. Supp. 2d at 591 (noting that the Board "appear[s] to
concede" that "forcing a political party to select its nominee solely by
open primary" would severely burden the party’s associational rights).
Rather, the Board’s challenge to the as-applied ruling rests upon a
more narrow argument: that despite Senator Martin’s selection of a
primary as the method of nomination, the Committee was not, in fact,
forced to select its nominee by primary. We conclude, as did the dis-
trict court, that this argument lacks merit.

In support of its position, the Board first contends that Va. Code
Ann. § 24.2-509(B) simply designates the incumbent legislator (here,
Senator Martin) to choose the method of nomination "on behalf of the
party." Opening Br. at 19. In this sense, the Board argues that Senator
Martin is acting as "a representative of the party, not as an indepen-
dent individual." Id. at 21. The Board thus claims that there is nothing
unconstitutional about designating Senator Martin as the particular
person to choose the nomination method on behalf of the party, even
if he happens to disagree with other party members on this issue. We
reject this argument.

Section 24.2-509 bears the title "Party to determine method of
nominating its candidates for office; exceptions." Subsection A of
that statute provides that "[t]he duly constituted authorities of the
political party for the district . . . in which any other office [besides
a statewide office] is to be filled shall have the right to determine the
method by which a party nomination for that office shall be made."
Subsection B of the statute provides, however, that "[n]otwithstanding
subsection A . . . [a] party shall nominate its candidate for election
for a General Assembly district where there is only one incumbent of
that party for the district by the method designated by that incumbent,
or absent any designation by him by the method of nomination deter-
mined by the party."
 MILLER v. BROWN 15
The language and structure of § 24.2-509 make clear that, at least
for purposes of selecting a nomination method, Virginia does not
view the incumbent legislator as a representative of the party. First,
the title of § 24.2-509 suggests that selection of the nomination
method by the incumbent is an exception to the general rule that
"[t]he duly constituted authorities of the [local] political party . . .
have the right to determine the method." See Jakabcin v. Town of
Front Royal, 628 S.E.2d 319, 323 n.3 (Va. 2006) (noting that
although the title of a statute is "not a part of the act itself, it may be
read to ascertain the act’s purpose"). This conclusion is further sup-
ported by the "[n]otwithstanding" language of subsection B. And, that
subsection expressly distinguishes between selection by the "incum-
bent" and selection by the "party."

Moreover, while it is true that Senator Martin is a member of the
same party whose nominee the Committee is charged with selecting,
that fact is not dispositive of whether Senator Martin is acting on
behalf of the party in selecting the nomination method. Indeed, the
Supreme Court has recognized that "[s]imply because a legislator
belongs to a political party does not make her at all times a represen-
tative of party interests." Eu, 489 U.S. at 225 n.15. It is quite possible
that Senator Martin was acting in his individual interest—rather than
that of the local party—in selecting a primary as the method of nomi-
nation for his seat. Cf. id. ("In supporting the endorsement ban, an
individual legislator may be acting on her understanding of the public
good or her interest in reelection.").

The Board argues alternatively that even if Senator Martin is not
acting on behalf of the party in selecting a primary as the method of
nomination, the Committee is not bound by that selection. Specifi-
cally, the Board claims that the Committee can use internal party rules
to compel Senator Martin to select the Committee’s preferred method
of nomination in order to appear on the ballot. See Va. Code Ann.
§ 24.2-508(i) (2006) (giving political parties the power to "make
[their] own rules and regulations"); Va. Code Ann. § 24.2-525 (2006)
(providing that "[o]nly a person . . . who has complied with the rules
and regulations of his party[ ] shall have his name printed on the bal-
lot provided for the primary election"). The Board also contends that
the Committee could "disassociate" itself from Senator Martin if he
16 MILLER v. BROWN
refuses to comply with the Committee’s wishes regarding the method
of nomination. Opening Br. at 25. We reject this argument as well.

As an initial matter, the Board’s contention that the Committee
may use various means to compel Senator Martin to accede to its
wishes regarding the method of nomination appears contrary to
§ 24.2-509(B), which plainly affords Senator Martin the right to select
—in binding fashion—the method of nomination for his seat. See Va.
Code Ann. § 24.2-509(B) (providing that "[a] party shall nominate its
candidate for election for a General Assembly district . . . by the
method designated by [the] incumbent" (emphasis added)). Moreover,
even if it were theoretically possible for the Committee to dictate the
selection process in this manner, we do not think the Committee
should be required to take such drastic affirmative steps against an
incumbent officeholder—with whom it might otherwise agree—in
order to preserve its right of free association. Indeed, the upheaval
that such action might cause within the local party could conceivably
alter the identity of its candidates and the message it conveys to the
public, thus implicating the same associational freedoms that the
Committee seeks to vindicate here.

2.

Having rejected the Board’s arguments that the open primary law
does not severely burden the Committee’s associational rights, we
now consider whether the statute "is narrowly tailored to serve a com-
pelling state interest," Jones, 530 U.S. at 582. The Board advances
four state interests that it claims are compelling. We address these
interests in turn.

First, the Board contends that "preserving Virginia’s sovereign
choices regarding the structure of its electoral system is a compelling
interest." Opening Br. at 28. This argument focuses on the fact that
Virginia does not require voters to register by party. The Board claims
that "Virginia has never implemented a state-run closed primary" and
that requiring it to do so would involve de facto party registration
because voters’ eligibility would be based on their past voting records
and willingness to commit to a party in writing. Id. at 29. This argu-
ment fails to establish a compelling interest, however, because Vir-
ginia already allows political parties to adopt "requirements
 MILLER v. BROWN 17
determined by the . . . party for participation in its presidential pri-
mary." Va. Code Ann. § 24.2-545(A). In particular, such requirements
"may include, but shall not be limited to, the signing of a pledge by
the voter of his intention to support the party’s candidate when offer-
ing to vote in the primary." Id. The Board does not explain how the
voter restrictions sought by the Committee—which would be permit-
ted by statute in a presidential primary—would undermine Virginia’s
election regime if employed in a primary for state office. Indeed,
imposing such restrictions in a presidential primary would presum-
ably affect far more voters than in a senatorial district primary.

Second, the Board contends that "Virginia has a compelling interest
in preserving the integrity of its election process"—specifically, in
ensuring that its primaries comply with the Voting Rights Act. Open-
ing Br. at 30 (internal quotation marks omitted). But other than vague
assertions of "doubts" and "serious questions" about the validity of
Virginia’s elections, id. at 31, the Board fails to explain how the
restrictions proposed by the Committee would violate federal law.
Such speculation does not establish a compelling interest justifying a
burden on the Committee’s associational rights.

Third, the Board argues that "preserving an individual’s privacy
regarding his or her political preferences is a compelling governmen-
tal interest." Id. As the district court recognized, however, this argu-
ment is foreclosed by Jones, which held that privacy concerns were
not a compelling interest justifying the associational burden caused by
a blanket primary law:

Even if (as seems unlikely) a scheme for administering a
closed primary could not be devised in which the voter’s
declaration of party affiliation would not be public informa-
tion, we do not think that the State’s interest in assuring the
privacy of this piece of information in all cases can conceiv-
ably be considered a "compelling" one.

Jones, 530 U.S. at 585.

Last, the Board asserts that encouraging voter participation is a
compelling state interest, in part because voters in districts where one
party is dominant may regard the primary as tantamount to the gen-
18 MILLER v. BROWN
eral election. While allowing the broadest possible group of voters to
participate in a primary may be desirable, this interest cannot over-
come the severe burden placed upon a political party when it is forced
to associate with those who may not share its views. Indeed, Jones
rejected an argument similar to the one advanced by the Board,
emphasizing that "a ‘nonmember’s desire to participate in the party’s
affairs is overborne by the countervailing and legitimate right of the
party to determine its own membership qualifications.’" Id. at 583
(quoting Tashjian, 479 U.S. at 215 n.6).

We therefore conclude that none of the reasons articulated by the
Board constitutes a compelling state interest justifying a severe bur-
den on the Committee’s right of association. Accordingly, we affirm
the holding of the district court that § 24.2-530 is unconstitutional as
applied to the Committee.

III.

For the reasons discussed above, we affirm the district court rulings
that Va. Code Ann. § 24.2-530 is facially constitutional but that the
statute is unconstitutional as applied to the Committee.

AFFIRMED