HARRISONBURG — Last month, Republicans selected Del. Ben Cline as their nominee to replace retiring U.S. Rep. Bob Goodlatte in Virginia’s 6th District at a convention.

Now, the Virginia Board of Elections says that’s enough to throw out a federal ruling on the state’s law on political nominations.

Four days after the convention in Harrisonburg, the board filed a motion in the 4th U.S. Circuit Court of Appeals in Richmond to throw out the ruling overturning the so-called “Incumbent Protection Act,” saying the law no longer affected the 6th District Republican Committee.

The law gives unilateral power to members of the General Assembly to choose the party nomination process for their seat.

For all other offices, the law says that if an incumbent seeking re-election was nominated by a primary in the previous election, the next nomination must also be decided in a primary, unless the incumbent consents to another method. The law applied to candidates who filed for a primary, even if one wasn’t held because they were unopposed.

Valley Republicans, including the 6th Congressional District Committee, challenged the law in February 2017 in U.S. District Court in Harrisonburg, saying it violates voters’ and candidates’ right to free association guaranteed by the First Amendment and violates the 14th Amendment, which essentially says laws will be enforced equally on all citizens.

A federal judge ruled on Jan. 19 that the law is unconstitutional as it confers undue power on incumbents and is unfair.

The Board of Elections appealed to the 4th U.S. Circuit Court on Jan. 26, and the order scrapping the law was delayed so parties could begin declaring their nominating process for this year’s election.

No Longer Valid?

The state claims that by nominating their candidate by convention rather than a primary, 6th District Republicans effectively proved the law no longer applied to them.

The state’s argument is that if Cline wins the general election, he would have no power under the law unless the party decided to hold a primary to select a nominee in 2020.

Even then, the state says, Cline wouldn’t be able to override a party decision until 2022, which doesn’t give the committee legal standing to challenge the law.

“The reason [the law] will not be applicable to the Committee until at least the 2022 election cycle is not because of anything the state officials or the district court did,” the state’s motion says. “Regardless of whether [the district court’s] assessment was correct when made, the critical point is that circumstances have substantially changed.”

Once Goodlatte announced in November that he would retire, the law wouldn’t have applied in the 2018 election, which the state says means the committee’s claims were being made too soon or too late. The state says the GOP’s decision to hold a convention puts potential application of the law even farther away.

The District Republican Committee vehemently contests the state’s claim and says the district court didn’t find that as reason to dismiss the case.

“It is true; the Committee has regained the full exercise of its First Amendment right to determine the nomination method,” the plaintiffs wrote. “But the committee maintains that right if, and only if, it forever refrains from nominating by primary.”

The state’s appeal also argues that the district court erred in allowing the 6th District Committee’s claims to stand because Goodlatte never invoked his powers under the law. Therefore, the committee couldn’t demonstrate “injury” from the law.

Republicans say the threat of Goodlatte invoking his powers always factored into election planning.

“[T]he method of nomination is a critical factor in the electoral process, and ... the act distorts the decision-making of the Committee with regard to that process, irrespective of when or whether it is invoked by an incumbent,” the plaintiffs wrote. “The mere existence of the Act causes the Committee’s decisions to be made differently than they would absent the law.”

The committee also implies Goodlatte could have made his announcement to derail the case.

“He had every incentive to [derail] the case, for his fellow incumbents, if no longer for himself,” the plaintiffs wrote.

The appellate court hasn’t set a date to rule on the state’s motion.

Contact Nolan Stout at 574-6278 or nstout@dnronline.com

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