Marts et al v. Cortes et al
Filing
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MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/31/2018. (jv)
3/31/2018
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
JAY L. MARTS and DANA NEWCOMB,
Plaintiffs,
v.
THE REPUBLICAN PARTY OF
VIRGINIA, INC., and
FREDERICK COUNTY REPUBLICAN
COMMITTEE,
Defendants.
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S/J.Vasquez
Civil Action No. 5:17-cv-00022
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION
Plaintiffs Jay Marts and Dana Newcomb allege that defendants, the Republican Party of
Virginia (RPV) and the Frederick County Republican Committee (FCRC), improperly deprived
them of their right to vote in party- run nomination processes.
Defendants now move to dismiss plaintiffs’ complaint under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. Because the court concludes that it lacks jurisdiction
over plaintiffs’ claims, the court will grant defendants’ motion and dismiss plaintiffs’ complaint
without prejudice.
I. BACKGROUND
The facts below come from plaintiffs’ amended complaint, because the court accepts the
well-pleaded, nonconclusory factual allegations in the complaint as true when ruling on a motion
to dismiss. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008).
RPV, a political party in Virginia, aims to “promot[e] the principles and policy objectives
of the Republican Party and elect[] nominated Republican candidates to public office.” (Compl.
¶ 6, Dkt. No. 25.) FCRC, located in Virginia’s Tenth Congressional District, serves as a
committee of RPV. (Id. ¶ 15.) RPV operates under a Plan of Organization (Plan), “which
defines the requirements for membership, party organizational structure, the process for election
of party officials, methods of nomination for candidates for public office and how party members
deemed errant may be disciplined or removed.” (Id. ¶ 7.) Article I, section (A)(2) of the Plan
states that “a voter who, subsequent to making a statement of intent (in a party candidate
nominating process), publicly supports a candidate in opposition to a Republican nominee shall
not be qualified for participation in party actions as defined in Article I for a period of four (4)
years.” (Plan at 3, Dkt. No. 25-1.)
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On April 27, 2015, plaintiffs attended a FCRC mass meeting. At the mass meeting,
plaintiffs certified their adherence to FCRC and RPV (collectively, the Party) principles and their
intention to support the Party’s candidates. (Compl. ¶¶ 17–18, 21, 23–34.) Subsequently,
plaintiffs publicly supported independent candidates running in opposition to Party candidates.
(Id. ¶¶ 19, 22.) Consequently, the Party took numerous steps to reprimand plaintiffs for their
support of opposition candidates.
In April 2016, the Party declined to provide Marts with voting credentials at both the
Republican Tenth District Convention and the 2016 RPV State Convention. (Id. ¶ 36.)
Similarly, the Party declined to provide Newcomb with voting credentials at the Republican
Tenth District Convention. (Id.)
1
Because the Plan is a document attached to the complaint, it is appropriate for the court to consider it on a
motion to dismiss. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
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Additionally, in May 2016, a FCRC member brought a “challenge,” alleging that
plaintiffs violated Article I of the Plan. (Id. ¶ 37.) FCRC heard the challenge and declined to
impose Article I sanctions against plaintiffs. (Id. ¶ 38.) On appeal, however, the Tenth District
Republican Committee decided to impose Article I sanctions on plaintiffs, a decision upheld by
the Republican State Central Committee. (Id. ¶¶ 41, 44.) Subsequently, in May 2017, the Party
declined to provide Marts with voting credentials at the FCRC Mass Meeting. (Id. ¶ 45.) The
candidates nominated at the Mass Meeting would automatically appear on the November 7, 2017
general election ballot, and Marts sought to vote in a contested nomination race for the
Gainesboro District Supervisor seat. (Id.)
Plaintiffs do not challenge “the authority of RPV to remove official committee members
who commit acts of disloyalty,” (id. ¶ 46), or that “they may be disciplined for being errant
Republicans.” (Pls.’ Resp. to Mot. Dismiss 7, Dkt. No. 24.) Rather, plaintiffs “contest being
denied voting credentials.” (Compl. ¶ 46.) In doing so, plaintiffs claim that the Party’s
imposition of Article I sanctions violated their First Amendment right to freedom of speech (in
that Article I sanctions constitute prior restraints); their First Amendment right to association
with others in furtherance of political beliefs; and their right to vote. (See generally id. ¶ 50.)
II. DISCUSSION
The Party first moves to dismiss plaintiffs’ complaint under Rule 12(b)(1) for lack of
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subject-matter jurisdiction. The Party contends that the court lacks subject-matter jurisdiction
over plaintiffs’ claims because “[t]he present matter is nothing more than an internal political
party dispute that certainly does not involve any federal question.” (Mot. Dismiss 9, Dkt. No.
20.)
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The Party also moves to dismiss plaintiffs’ claims under 12(b)(6) for failure to state a claim upon which
relief can be granted. Because the court finds that it lacks subject-matter jurisdiction under 12(b)(1), it does not
reach the Party’s 12(b)(6) arguments.
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A. Standard of Review
A motion to dismiss under Rule 12(b)(1) tests the court’s subject-matter jurisdiction over
the plaintiffs’ claim. Plaintiffs bear the burden of establishing that subject-matter jurisdiction
exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In deciding a Rule
12(b)(1) motion to dismiss, “the district court is to regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings without converting the proceeding to one
for summary judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991)). It must, however, “view[] the alleged facts in the
light most favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern
v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if
the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
matter of law.” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R, 945
F.2d at 768).
B. The Court Lacks Subject Matter Jurisdiction Over the Internal Party Affairs At Issue.
The Supreme Court and the Fourth Circuit both recognize political parties’ right to
associate and importantly, their right to limit that association. See, e.g., Tashjian v. Republican
Party of Conn., 479 U.S. 208, 214 (1986) (“The freedom of association protected by the First
and Fourteenth Amendments includes partisan political organizations.”); id. at 224 (“The Party’s
determination of the boundaries of its own association, and of the structure which best allows it
to pursue its political goals, is protected by the Constitution.”); Democratic Party of United
States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“[T]he 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.”)
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(citation omitted). Additionally, in Virginia, a party is free to select from various methods of
nomination in which it can exclude voters who do not share its views—including a closed
primary conducted and funded by the party. 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.” Miller v. Brown,
503 F.3d 360, 368 (4th Cir. 2007). A political party in Virginia also possesses the power to
“make it own rules and regulations . . . [and] provide for the nomination of its candidates.” Va.
Code Ann. § 24.2-508.
Accordingly, plaintiffs concede that “generally a political party’s membership
composition, discipline procedures, election of officers and operating procedures do not provide
standing permitting the court to exercise jurisdiction, and therefore, do not give rise to a cause of
action [under] . . . [§] 1983.” (Pls.’ Resp. 7.) Nevertheless, plaintiffs contend that “Virginia
party run candidate nomination processes which, by statute, provide automatic access to the
general election ballot contests occur through a delegation of state power.” (Id.) Therefore,
plaintiffs allege that the Party acted under color of state law in denying them the ability, and their
constitutional right, to vote in such party run nomination processes. (Compl. ¶ 49.) For these
reasons, plaintiffs claim that “the basis for jurisdiction of this complaint . . . is provided for in 42
U.S.C. § 1983.” (Id. ¶ 2.)
Section 1983 “creates a private right of action to vindicate violations of ‘rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.” Rehberg
v. Paulk, 132 S. Ct. 1497, 1501 (2012). “To state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). “In cases construing section 1983, ‘under color’ of law has been
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treated consistently as equivalent to the ‘state action’ requirement under the Fourteenth
Amendment.” Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th Cir. 1993)
(citation omitted).
According to the Fourth Circuit in Haavistola, “[t]he Supreme Court has identified three
situations in which particular conduct by a private entity constitutes ‘state action.’” Id. First,
state action may occur when “there is a sufficiently close nexus between the state and the
challenged action of the regulated entity such that those actions may be fairly treated as those of
the state.” Id. (quoting Alcena v. Raine, 692 F. Supp. 261, 267 (S.D.N.Y. 1988)). Second, state
action may occur when a state “exercised coercive power or has provided such significant
encouragement that the action must in law be deemed to be that of the state.” Id. (quoting
Alcena, 692 F. Supp. at 267). Finally, state action may occur when “the private entity has
exercised powers that are traditionally the exclusive prerogative of the state.” Id. (quoting
Alcena, 692 F. Supp. at 267).
Plaintiffs do not identify in their briefing which of these three situations they believe is
applicable here. Instead, as support for their § 1983 claim, they cite language from various
Supreme Court cases to argue that “a Virginia political party run nomination process is state
action.” (Pls.’ Resp. 13.) Plaintiffs’ reliance on the cited precedent is misplaced, and other cases
have made clear that state action occurs, if at all, in this context only when the party’s action
arises in the context of a state-funded primary or its equivalent.
First, plaintiffs cite Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), where
the Court addressed a challenge to the Republican Party of Virginia’s requirement that voters pay
a registration fee in order to become a delegate to the state convention. In striking down the
registration fee, Justice Stevens stated that “[m]ajor parties have no inherent right to decide who
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may appear on the ballot. That is a privilege conferred by Virginia law, not natural law. If the
Party chooses to avail itself of this delegated power over the electoral process, it necessarily
becomes subject to the regulation.” Morse, 517 U.S. at 198. Plaintiffs seize on Justice Stevens’s
quoted language to assert that any process that selects the candidates who will appear on a
general election ballot constitutes state action. (Pls.’ Resp. 15–16.) However, this court notes
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that Morse was a plurality decision, and Justice Breyer’s concurring opinion did not declare that
all party nomination processes constitute state action. See Morse, 517 U.S. at 238 (Breyer, J.,
concurring) (“We need not go further in determining when party activities are, in effect,
substitutes for state nominating primaries because the case before us involves a nominating
convention that resembles a primary about as closely as one could imagine.”). Accordingly,
Justice Stevens’s statements regarding the state’s ability to regulate political parties constitute
dicta, not binding precedent.
Next, plaintiffs quote Smith v. Allwright, 321 U.S. 649 (1944):
The privilege of membership in a party may be . . . no concern of a
state. But when, as here, that privilege is also the essential
qualification for voting in a primary to select nominees for a
general election, the state makes the action of the party the action
of the state.
(Pls.’ Resp. 7 (quoting Smith, 321 U.S. at 664–65).)
In Smith, the Court reviewed a district court’s ruling denying relief to an AfricanAmerican man prohibited from voting in a Texas primary election. Smith, 321 U.S. at 650–52.
The Court noted that Texas law provided that “every person, if certain other requirements are
met which are not here in issue, qualified by residence in the district or county ‘shall be deemed
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See Marks v. United States, 430 U.S. 188, 193 (1977) (“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 concurred in the judgments on the narrowest grounds . . . .” (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).
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a qualified elector.’” Id. at 652–53 (citation omitted). Nevertheless, in 1932, the Texas
Democratic Party (Democratic Party) passed a resolution restricting its membership to “white
citizens of the State of Texas.” Id. at 668. Acting pursuant to this resolution, the Democratic
Party denied Lonnie Smith, an African-American, the ability to participate in the “primary
election of July 27, 1940, for the nomination of Democratic candidates for the United States
Senate and House of Representatives, and Governor and other state officers.” Id. at 651.
Subsequently, Smith brought suit, alleging that defendants, who were precinct election and
associate election judges, denied him the ability to participate in the primary election solely
because of his race. Id. at 650–51.
In evaluating Smith’s claim, the Court sought to determine whether the Democratic
Party’s treatment of Smith constituted state action. The Court noted that “[t]he Fourteenth
Amendment forbids a state from making or enforcing any law which abridges the privileges or
immunities of citizens of the United States and the Fifteenth Amendment specifically interdicts
any denial or abridgement by a state of the right of citizens to vote on account of color.” Id. at
657. But the Democratic Party asserted that “the Amendments are applicable only to general
elections where governmental officers are actually elected. Primaries . . . are political party
affairs, handled by party not governmental officers.” Id. Accordingly, the Democratic Party
claimed that it “[was] free to select its own membership and limit to whites participation in the
party primary.” Id.
As to whether primary elections constitute state action, the Court asserted that “state
delegation to a party of the power to fix the qualifications of primary elections is delegation of a
state function that may make the party’s action the action of the state.” Id. at 660. Because in
Texas, “[p]rimary elections are conducted by the party under state statutory authority,” id. at 663,
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the Court declared that any discrimination that occurs in relation to the primary becomes state
action. See id. at 664 (“If the state requires a certain electoral procedure . . . it endorses, adopts
and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law
with the determination of the qualifications of participants in the primary.”). The Democratic
Party’s discrimination against Smith stemmed from the resolution limiting party membership to
“white citizens.” Therefore, the Court concluded that “when, as here, th[e] privilege [of
membership in a party] is also the essential qualification for voting in a primary to select
nominees for a general election, the state makes the action of the party the action of the state.”
Id. at 664–65.
While emphasizing the importance of a political party’s freedom of association by
exercising its right to exclude, especially in the are of selecting a party’s nominee, the Supreme
Court revisited and clarified the reach of Smith in California Democratic Party v. Jones, 530
U.S. 567 (2000). There, the Court stated that Smith
held only that, when a State prescribes an election process that
gives a special role to political parties . . . the parties’
discriminatory action becomes state action under the Fifth
Amendment. . . . [It] do[es] not stand for the proposition that party
affairs are public affairs, free of First Amendment protections—
and our later holdings make that entirely clear.
Jones, 530 U.S. at 573.
Further, the Jones Court stated that Smith does not completely bar political parties from
limiting who may participate in party primaries. Rather, Smith “simply prevent[s] exclusion that
violates some independent constitutional proscription.” Id. at 573 n.5.
Finally, plaintiffs rely on Nixon v. Condon, 286 U.S. 73 (1932), another case involving a
Texas Democratic Party’s resolution denying African-Americans the ability to vote in a primary
election. In Nixon, the State Executive Committee of the Democratic Party passed a resolution
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limiting participation in upcoming primary elections to qualified “white democrats.” Nixon, 286
U.S. at 82. Subsequently, election judges “declined to furnish the ballot or permit the vote [of
plaintiff] on the ground that the petitioner was a negro.” Id. Consequently, plaintiff sued
defendants, the primary election judges, for damages. Id. The district court dismissed plaintiff’s
claim, and the Court of Appeals for the Fifth Circuit affirmed. Id. at 82–83.
In evaluating plaintiff’s claim, the Court focused on a Texas statute stating that “every
political party . . . through its State Executive Committee . . . shall have the power to prescribe
the qualifications of its own members.” Id. at 82 (emphasis added). The Court interpreted the
statute as Texas vesting Executive Committees with the “power to prescribe the qualifications of
its own members.” Id. at 84–85. Therefore, the Court found that “[w]hatever power of
exclusion has been exercised by the members of the committee has come to them . . . not as the
delegates of the party, but as the delegates of the state.” Id. at 85. Accordingly, the Court
reversed and remanded the district court’s dismissal of plaintiff’s claim.
However, the Nixon Court limited its holding:
Whatever our conclusion might be if the statute had remitted to the
party the untrammeled power to prescribe the qualifications of its
members, nothing of the kind was done. Instead, the statute lodged
the power in a committee, which excluded the petitioner and others
of his race, not by virtue of any authority delegated by the party,
but by virtue of an authority originating or supposed to originate in
the mandate of the law.
Id. at 84.
Additionally, the Court later revisited both Nixon and Smith in Flagg Bros, Inc. v.
Brooks, 436 U.S. 149 (1978). In discussing the Nixon and Smith line of cases, the Brooks Court
stated that “their scope is carefully defined.” Brooks, 436 U.S. at 158. Further, the Brooks Court
provided that Nixon and Smith “do[] not reach to all forms of private political activity, but
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encompass only state-regulated elections or elections conducted by organizations which in
practice produce ‘the uncontested choice of public officials.’” Id. (citation omitted).
In sum, plaintiffs rely on the previously discussed Supreme Court precedent to argue that
party officials, acting under color of state law, deprived plaintiffs of their constitutional rights,
including the right to vote. However, the court reads these cases to convey that party officials
may, under limited circumstances, act under color of state law when conducting a state-regulated
primary election or its equivalent. See, e.g., Banchy v. Republican Party of Hamilton Cty., 898
F.2d 1192, 1196 (6th Cir. 1990) (“The primary election cases do not hold that a political party is
part of the state, or that any action by a political party other than conducting an election is state
action. . . . The primary election cases merely hold that conducting an election is a governmental
function and constitutes state action, no matter who actually conducts the election.” (quoting Cal.
Republican Party v. Mercier, 652 F. Supp. 928, 934 (C.D. Cal. 1986))).
And, as explained by Jones, the early primary election cases, such as Smith, involved the
violation of “some independent constitutional proscription,” id. at 573 n.5, most notably raciallybased restrictions. The facts here do not involve a race-based restriction or limitation. Aside
from the two cases dealing with Jim Crow-era laws, plaintiffs have not cited a single case where
a party’s disciplinary limitation on participation in its internal elections has been determined to
be state action.
Significantly, moreover, the Party’s challenged action here did not occur in the course of
operating a state-regulated primary or its equivalent. Rather, the Party took general measures to
discipline plaintiffs for their disloyalty to the party, something plaintiffs concede the Party may
do.4 Perhaps, if the Party here were to interpret and apply its own discipline to preclude plaintiffs
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Indeed, not only did plaintiffs concede at argument that the Party has the right to impose discipline, they
made other concessions that greatly undermined their claim, as well. For example, counsel stated that if the
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from participating in an open primary conducted and funded by the state, that would be a
sufficient allegation of state action.5 But the plaintiffs have not alleged that they have been
prevented from voting in any state-run primary, that the Party has attempted to prevent the
plaintiffs from doing so, or that the discipline imposed plausibly includes such a prohibition.6 In
the absence of any plausible contention that defendants have prevented, or are likely to seek to
prevent plaintiffs from voting in a state-run primary, plaintiffs have not plausibly alleged state
action.
In short, in order for the Party’s action to constitute state action, it would need, at least, to
prohibit plaintiffs from voting in a state-regulated primary or its equivalent. This simply has not
occurred here.
III. CONCLUSION
For all of these reasons, the court concludes that plaintiffs have not alleged any state
action by the Party. In the absence of any state action, there is no viable federal claim to confer
jurisdiction on this court. Accordingly, the court will grant the motion to dismiss and will
discipline had been imposed for only a shorter period of time, instead of four years, no constitutional violation
would have occurred. He also stated that it would be permissible for Virginia’s General Assembly to give authority
to a political party to prohibit persons like plaintiffs from voting.
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Virginia law allows a political party to select its candidates through various mechanisms other than open
primaries. Miller, 503 F.3d at 362 (noting that while an open primary “is conducted and funded by the state,”
methods other than a primary “are conducted and funded by the party,” including “a party convention . . .; a mass
meeting, also known as a ‘caucus’; and a party canvass or unassembled caucus, also called a ‘firehouse primary’”).
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The sanctions imposed bar plaintiffs’ “participation in party actions as defined in Article I for a period of
four (4) years.” (Dkt. No. 25-1, at 3.) And although “party actions” consist of “mass meetings, party canvasses,
conventions, or primaries,” (id. (emphasis added)), there is no allegation that the “primary” would also include a
state-run primary. Furthermore, the Plan defines “primary” as “subject to the Election Laws of the Commonwealth
of Virginia.” (Plan at 5, Dkt. No. 25–1.) Under the Election Laws of Virginia, any otherwise qualified voter may
vote in a state-regulated “general, primary, and special election.” Va. Code Ann. §§ 24.2-101, 530. Accordingly,
the Plan, by defining “primaries” by reference to state election laws, effectively acknowledges that those laws would
trump any party discipline.
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dismiss the case without prejudice for lack of jurisdiction.
An appropriate order will be entered.
Entered: March 31, 2018.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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