                                    PUBLISHED

                          UNITED STATES COURT OF APPEALS
                              FOR THE FOURTH CIRCUIT


                                       No. 18-1111


6TH CONGRESSIONAL DISTRICT REPUBLICAN COMMITTEE,

            Plaintiff – Appellee,

      and

ANNE TAETZSCH FITZGERALD, individually and as Chairman of the 20th
House of Delegates District Republican Committee; KAREN U.
KWIATKOWSKI, individually; EDWARD A. YENSHO, individually and as
Chairman of the Green County Republican Committee; 20TH HOUSE OF
DELEGATES DISTRICT REPUBLICAN COMMITTEE,

            Plaintiffs,

      v.

JAMES B. ALCORN, in his official capacity as Chairman of the Virginia State
Board of Elections; CLARA BELLE WHEELER, in her official capacity as Vice-
Chairman of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her official capacity as Secretary of the Virginia State Board of
Elections; VIRGINIA DEPARTMENT OF ELECTIONS,

            Defendants - Appellants.


Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:17-cv-00016-MFU-JCH)


Argued: December 12, 2018                                    Decided: January 9, 2019


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Motz
and Judge Duncan joined.


ARGUED: Toby Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants. Jeffrey R. Adams, WHARTON,
ALDHIZER & WEAVER, PLC, Harrisonburg, Virginia, for Appellee. ON BRIEF:
Mark R. Herring, Attorney General, Stephen A. Cobb, Deputy Attorney General,
Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellants. Charles F. Hilton, Thomas E. Ullrich, Lucas I.
Pangle, WHARTON ALDHIZER & WEAVER, PLC, Harrisonburg, Virginia; John C.
Wirth, NELSON MCPHERSON SUMMERS & SANTOS, Staunton, Virginia, for
Appellee.




                                         2
WILKINSON, Circuit Judge:

       The 6th Congressional District Republican Committee argues that Virginia’s

Incumbent Protection Act, Va. Code Ann. § 24.2-509(B), violates the First Amendment

of the Constitution. The district court agreed and enjoined § 24.2-509(B) in its entirety.

For the reasons that follow, we now affirm.

                                              I.

                                              A.

       Virginia law generally allows the Commonwealth’s political parties considerable

discretion in deciding how to nominate their candidates for office. Section 24.2-509(A)

empowers the “duly constituted authorities” of the state and local parties “to determine

the method by which a party nomination . . . shall be made.” The parties make use of this

latitude. For example, the Republican Party of Virginia, with whom the appellee here is

affiliated, allows for four different methods of nomination: a primary, a party canvass, a

convention, and a mass meeting. Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 927 (W.D.

Va. 2018). Under the Party’s Plan of Organization, committees established in every

locality, state legislative district, and congressional district are empowered to choose

among these methods to nominate candidates for their political subdivision. J.A. 37, 38,

40.

       The differences between these methods are substantial. Each one “‘create[s] a

different distribution of potential voters (or decision makers) in the nomination process.’

For example, primaries involve the largest pool of potential voters, whereas conventions

and mass meetings ‘lend themselves more toward committed partisans.’” Alcorn, 285 F.

                                              3
Supp. 3d at 935 (quoting J.A. 884-85, 885-86). The choice of method, therefore, could

have a significant influence on the choice of nominee.

       Subsection 24.2-509(B), often called the Incumbent Protection Act, however,

limits the broad authority recognized by subsection A. 1 The second and third sentences

apply to those subdivisions of the state party that select nominees for candidates to the


1
  The full text of Virginia Code § 24.2-509 is reprinted below, with the sentences in
subsection B numbered for ease of reference:

A. The duly constituted authorities of the state political party shall have the right to
   determine the method by which a party nomination for a member of the United States
   Senate or for any statewide office shall be made. The duly constituted authorities of
   the political party for the district, county, city, or town in which any other office is to
   be filled shall have the right to determine the method by which a party nomination for
   that office shall be made.

B. [1] Notwithstanding subsection A, the following provisions shall apply to the
   determination of the method of making party nominations. [2] 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 determined by the party.
   [3] A party shall nominate its candidates for election for a General Assembly district
   where there is more than one incumbent of that party for the district by a primary
   unless all the incumbents consent to a different method of nomination. [4] A party,
   whose candidate at the immediately preceding election for a particular office other
   than the General Assembly (i) was nominated by a primary or filed for a primary but
   was not opposed and (ii) was elected at the general election, shall nominate a
   candidate for the next election for that office by a primary unless all incumbents of
   that party for that office consent to a different method.

    [5] When, under any of the foregoing provisions, no incumbents offer as candidates
    for reelection to the same office, the method of nomination shall be determined by the
    political party.

    [6] For the purposes of this subsection, any officeholder who offers for reelection to
    the same office shall be deemed an incumbent notwithstanding that the district which
    he represents differs in part from that for which he offers for election.


                                              4
General Assembly. Those sentences allow incumbent members of the General Assembly

who are running for reelection, where there is only one incumbent, to “designate[]” the

method of nomination they prefer. Under this statute, the wishes of the party are

immaterial; no matter where the party’s plan of organization may vest the power to

choose nomination methods, the law trumps, granting the power to the incumbent.

       The fourth sentence of the Act applies to those components of political parties that

make the nominations for “particular office[s]” other than for the General Assembly,

including nominations for the U.S. House of Representatives. In these races, the

incumbent officeholder may insist that his or her party use a primary as its nomination

method as long as (1) the incumbent was selected by primary in the previous election

cycle and (2) the incumbent is running for reelection. Again, the statute trumps the

party’s plan of organization, which, in this case allows the committees responsible for

congressional nominations to choose between the approved methods (excluding mass

meetings) without interference by the incumbent, J.A. 37.

       The Virginia Department of Elections, however, has not always respected the

distinction made between the second and third sentences on the one hand, and the fourth

sentence on the other. In the 2016 and 2017 election cycles, for example, the Department

promulgated forms that allowed non-General Assembly incumbents to “designate” their

preferred method of nomination as if their elections were governed by the second and

third sentences. After the commencement of this litigation, and only after the appellees

pointed out the mistake, the Department issued new forms that applied the fourth

sentences to these races.

                                            5
       Virginia has not identified a single other state that has a statute like the Incumbent

Protection Act, and this is not the first case to consider a constitutional challenge to it. In

2007, for example, this court considered a challenge to the Act. Miller v. Brown, 503

F.3d 360 (4th Cir. 2007) (“Miller II”). There, we held that an incumbent cannot

constitutionally force his or her party to use an open primary, as this would be an

impermissible burden on the party’s associational rights. Id. at 368-71. We did not,

however, reach the different question of the constitutionality of incumbents’ statutory

power to dictate any nomination method.

                                              B.

       This appeal stems from the 6th Congressional District Republican Committee’s

challenge to the Incumbent Protection Act under 42 U.S.C. § 1983. See Alcorn, 285 F.

Supp. 3d at 922. The Committee is responsible for nominating candidates for the U.S.

House of Representatives for the 6th Congressional District, which “covers much of the

west-central portion of Virginia, from Roanoke to Front Royal.” Id. at 927. Under the

Party’s Plan of Organization, it is composed of the “District Chairman,” the “Unit

Chairman” (the chair of each relevant locality’s committee), the “District Representative

of the Virginia Federation of Republican Women,” the “Young Republican Federation

District Committeeman,” the “College Republican Federation District Committeeman,”

and the “District members of the State Central Committee.” J.A. 36-37. The Committee,

along with other plaintiffs who were dismissed from the suit and do not appeal, raised

facial and as applied challenges to the Incumbent Protection Act, claiming that it

abridged their rights under the First and Fourteenth Amendments of the U.S.

                                              6
Constitution. The named defendants include the Virginia Department of Elections and the

three members of the Virginia State Board of Elections at the time the suit was filed.

Alcorn, 285 F. Supp. 3d at 928.

       The district court, relying on Miller v. Brown, 462 F.3d 312 (4th Cir. 2006)

(“Miller I”), found that the Committee had standing to challenge the Act. Alcorn, 285 F.

Supp. 3d at 937. It then proceeded to evaluate the burden posed by § 24.2-509(B) on the

Committee’s associational rights, concluding that it was “severe” because it provided

“incumbents with a statutory right to dictate political parties’ internal affairs . . . .” Id. at

952. The burden was “especially” onerous because it trespassed on the “realm of

selecting candidates.” Id. Given the magnitude of the burden, the district court found that

“the Act can survive constitutional scrutiny only if it is ‘narrowly tailored to advance a

compelling state interest.’” Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)).

The district court ultimately concluded that the Act did not survive such scrutiny. Id. at

953.

       The district court thus permanently enjoined enforcement of the entire Incumbent

Protection Act on January 19, 2018. J.A. 1473. The court enjoined all six sentences of

§ 24.2-509(B) because, according to the court, the second and third sentences—which

protect the nomination prerogatives of incumbent General Assembly members—could

not be severed from the fourth—which protects the nomination prerogatives of, inter alia,

members of Congress. The court additionally found that the Committee had standing to

challenge the second and third sentences under the overbreadth doctrine. Alcorn, 285 F.

Supp. 3d at 955. Finally, the district court concluded that the Act had “no legitimate

                                               7
sweep” and so a facial challenge to all its provisions was appropriate. Id. at 955-56. After

the notice of appeal had been filed, the district court stayed its permanent injunction order

on February 5, 2018, to avoid interfering with the ongoing nomination cycle. J.A. 1481.

After that cycle concluded, however, the district court vacated its stay on September 24,

2018. J.A. 1680. During the course of this appeal, the Department filed a motion to

vacate the injunction on the basis of mootness. We held that motion in abeyance pending

oral argument, and both parties expanded on their arguments in their briefing on the

merits.

                                              II.

          The district court found that the fourth sentence of the Incumbent Protection Act,

which protects the nomination prerogatives of incumbent members of Congress among

others, violated the First Amendment. Because this provision imposes a severe burden on

the associational rights of Virginia’s political parties, and because the Commonwealth

has been unable to show that it is narrowly tailored to serve a compelling state interest,

we agree.

                                              A.

          Freedom of association has, for centuries, been at the heart of the American

system of government and individual rights. In 1831, when Alexis de Tocqueville arrived

in the United States, he was shocked to discover that our nation was the only “country on

the face of the earth where the citizens enjoy unlimited freedom of association for

political purposes.” Alexis de Tocqueville, 2 Democracy in America 123 (Henry Reeves

trans., 1863). In America, “the most democratic country on the face of the earth,” the

                                              8
“art” of forming political associations had been “carried to the highest perfection.” Id. at

115. Because of this, “Americans of all ages, all conditions, and all dispositions,

constantly form associations.” Id. at 114.

       De Tocqueville identified this propensity to associate as one of the sources of the

astonishing political dynamism of the young Republic, writing that American political

associations are “the mother of action,” id. at 125, and that they “stimulate competition,

and . . . discover those arguments which are most fitted to act upon the majority.” Id. at

210. The right to associate for political purposes, de Tocqueville proclaimed, is “[t]he

most natural privilege of man, next to the right of acting for himself.” Id. at 209.

Accordingly, “the right of association is almost as inalienable as the right of personal

liberty. No legislator can attack it without impairing the very foundations of society.” Id.

       The multiplicity of political associations lauded by de Tocqueville was the result

of the Founders’ decision to enshrine the “freedom to join together in furtherance of

common political beliefs” in the First Amendment of the Constitution. Tashjian v.

Republican Party of Conn., 479 U.S. 208, 214-15 (1986). That Amendment promises

Americans the right not just to proclaim a political vision but to join with their

compatriots and actually advance that vision. Because, while an individual may be, in de

Tocqueville’s words, “feeble and consequently more incapable of preserving his

freedom,” de Tocqueville, supra, at 123, when individuals combine in association they

“acquire facility in prosecuting great undertakings in common,” id. at 114. Some of the

“great undertakings” accomplished by political associations protected by the First

Amendment include the Abolitionist Movement, the Women’s Suffrage Movement, the

                                              9
Labor Movement, and the Civil Rights Movement—the fruits of which continue to shape

our politics and society for the better to this day.

       Of all political associations protected by the First Amendment, political parties

themselves merit special attention. Like other political participants, parties advance a

particular vision. Unlike others, however, political parties must also nominate candidates

for office, compete in elections, and, if successful, help to translate campaign appeals into

programmatic action. In so doing, political parties provide a vehicle for voters to advance

their own political views. Without groups like modern political parties, “[r]epresentative

democracy in any populous unit of governance” would be “unimaginable.” Cal.

Democratic Party v. Jones, 530 U.S. 567, 574 (2000).

       Perhaps no function of a party is more central to its purpose than the selection of

candidates for office, which “often determines the party’s positions on the most

significant public policy issues of the day.” Id. at 575. It is no surprise, therefore, that the

Supreme Court is “vigorous[]” in affirming the “special protection” owed to the

associational rights of political parties as they pertain to the parties’ choice of nominees.

Id. at 576. Statutes that severely burden a party’s associational rights must be narrowly

tailored to advance a compelling government interest. Id. at 581-82. In Democratic Party

of the United States v. Wisconsin ex rel. La Follette, the Court invalidated a Wisconsin

law that required the national Democratic Party to seat certain delegates chosen in an

open primary. 450 U.S. 107 (1981). In Tashjian v. Republican Party of Connecticut, the

Court struck down a Connecticut law that forbade state parties from conducting open

primaries because the law burdened “associational opportunities at the crucial juncture at

                                              10
which the appeal to common principles may be translated into concerted action . . . .” 479

U.S. at 216. In Eu v. San Francisco County Democratic Central Committee, the Court

invalidated laws dictating political parties’ internal affairs and prohibiting them from

endorsing candidates for office. 489 U.S. 214 (1989). And in California Democratic

Party v. Jones, the Court struck down a mandatory open primary law as it burdened the

“political association’s right to exclude” in the “candidate-selection process.” 530 U.S. at

575.

       Not every burden on associational rights is unconstitutional. “States have a major

role to play in structuring and monitoring the election process, including” nominee

selection. Cal. Democratic Party, 530 U.S. at 572. Where the burden imposed by the

state is not “severe”—where it is “lesser”—courts engage in “less exacting review.”

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). In Timmons, the

Court upheld a Minnesota law that prohibited a candidate from appearing on the ballot as

the nominee of more than one party after finding that the law did “not severely burden

that party’s associational rights.” Id. at 359. Nothing prevented the party from endorsing

the candidate of another party; nothing prevented the party for campaigning for the

candidate of another party. The law’s only effect was to “reduce the universe of potential

candidates who may appear on the ballot as the party’s nominee . . . by ruling out those

few individuals who . . . have already agreed to be another party’s candidate.” Id. at 363.

This slight a reduction could not be a severe burden. Id.; see also Clingman v. Beaver,

544 U.S. 581 (2005) (upholding law mandating a “semiclosed” primary, in which

registered members of opposing parties and unaffiliated voters could not participate).

                                            11
       Political parties have, of course, come in for their fair share of criticism

throughout our history. Chancellor James Kent, in an 1830 letter to Daniel Webster,

wrote that “Hamilton said in the Federalist, in his speeches, and a hundred times to me,

that factions would ruin us, and our government had not sufficient energy and balance to

resist the propensity to them, and to control their tyranny and their profligacy.” John B.

Cassoday, James Kent & Joseph Story, 12 Yale L.J. 146, 151 (1903) (quoting letter). But

whether the divisiveness in public discourse traces to the presence of political parties or

to the divisions inherent in the issues themselves elides the fact that parties have long

since become a fact of constitutional life. And what emerges from the above Supreme

Court cases is no all-or-nothing proposition but instead that law is not insensitive to

matters of degree: Those laws that impose a “heav[y]” or “severe” burden on a political

party’s right to choose its nominee are unconstitutional unless they serve a “compelling

state interest” and are “narrowly tailored” to do so. Cal. Democratic Party, 530 U.S. at

583. It is to that inquiry that we now turn.

                                               B.

       The fourth sentence of Virginia Code § 24.2-509(B), the provision of the

Incumbent Protection Act that applies to congressional incumbents among others,

unquestionably poses a severe burden on the associational rights of the Commonwealth’s

political parties. In evaluating the law’s imposition on associational rights, we must

“weigh the ‘character and magnitude’ of the burden” it occasions. Timmons, 520 U.S. at

358 (quoting Burdick, 504 U.S. at 434). We keep in mind also that “[a]ny interference



                                               12
with the freedom of a party is simultaneously an interference with the freedom of its

adherents.” Tashjian, 479 U.S. at 215 (quoting Democratic Party, 450 U.S. at 122).

      Subsection 24.2-509(A) grants the “duly constituted authorities” of the

Commonwealth’s political parties considerable discretion in selecting the method of

choosing their nominees. The Incumbent Protection Act, subsection 24.1-509(B), carves

exceptions to this rule in favor of incumbents. To recapitulate, the second and third

sentences allow incumbent members of the General Assembly to dictate the method their

party shall use in selecting the nominee for the office that incumbent holds. The fourth

sentence allows incumbent members of the U.S. House of Representatives, who were

themselves nominated by primary in the last election cycle, to require their party to use a

primary in the current election cycle to nominate a candidate for the office they hold if

they themselves are seeking reelection. In short, the associational rights of Virginia’s

political parties that are recognized and protected by § 24.2-509(A) are taken away by §

24.1-509(B) and given instead to a single individual—the incumbent.

       The weight of this burden could not be more obvious. The members of the 6th

Congressional District Committee have, as generations of Americans did before them,

banded together to advance their political views. The selection of a nominee “often

determines” the contours of the party platform. Cal. Democratic Party, 530 U.S. at 575.

And “even when those positions are predetermined it is the nominee who becomes the

party’s ambassador to the general electorate in winning it over to the party’s views.” Id.

Yet, at the “crucial juncture” at which the members of this political association decide

how to select their nominee, id., the Commonwealth has taken the decision out of their

                                            13
hands: No matter what method of nomination the members of this party may prefer,

Virginia law decrees that they must give way to the desire of the incumbent to hold a

primary if that incumbent was himself selected by primary previously and is seeking

reelection.

       The burden is manifestly severe. This is not a case like Timmons, in which a

party’s ability to choose a nominee was reduced by only the small number of individuals

that already appeared elsewhere on the ballot. 520 U.S. at 351. Nor is this a case like

Clingman, in which the state’s Libertarian Party was required by state law to allow only

its registered members and registered independent voters to participate in its primary. 544

U.S. at 592. The burden there was not severe given the ease with which registered

members of other parties who wanted to participate in the Libertarian primary could

change their registration. Id. Rather, this is a case in which the state has decided that the

wishes of a party’s adherents must, in certain circumstances, be subordinated wholesale

to the wishes of a single individual whose self-interest is self-evident; in these

circumstances, the party’s adherents are entirely shut out of the choice of nomination

method—severely burdening their associational rights.

                                             C.

       Because the provision of the Incumbent Protection Act which protects

congressional incumbents—the fourth sentence—imposes a “severe” burden on the

associational rights of Virginia’s political parties, the Commonwealth must show that it is

“narrowly tailored to serve a compelling state interest.” Cal. Democratic Party, 530 U.S.

at 583. It cannot make this showing.

                                             14
       Primaries add a crucial participatory dimension to democratic politics. Appellants

assert that § 24.2-509(B) is akin to a mandatory primary statute, and therefore it serves

the interest of “assur[ing] that intraparty competition is resolved in a democratic fashion.”

Id. at 572. If § 24.2-509(B) truly were a mandatory primary statute its constitutionality

would be “too plain for argument.” Id. (quoting Am. Party of Tex. v. White, 415 U.S. 767,

781 (1974)). But it is not: The statute does not by itself require any organ of a Virginia

political party to use a primary as a method of nomination. Instead, the statute delegates

the power to force the party to use a primary to the incumbent office holder. Therein lies

the constitutional flaw.

       This delegation of power over the party to the incumbent office holder is not

narrowly tailored to meet the Commonwealth’s asserted interest. Under the terms of the

statute, the interest in democratic resolution of intraparty disputes will only be vindicated

when and where an incumbent office holder decides that it is in his interest to do so. It is

implausible that the General Assembly would seek to vindicate this interest in such an

odd, uneven, and underinclusive fashion. Instead, the text and structure of the law gives

rise to the strong suggestion that the Incumbent Protection Act serves a different interest:

the interest, unsurprisingly, in incumbent protection.

       To be sure, incumbent protection is not per se an unconstitutional interest. In the

context of redistricting, the Supreme Court has historically allowed maps to stand that

were drawn with the electoral interest of incumbents in mind. See, e.g., Karcher v.

Daggett, 462 U.S. 725, 740 (1983). But the Court has not held that the interest in

incumbent protection is a compelling one that can justify such direct intrusions on the

                                             15
First Amendment. See Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (Kagan, J.,

concurring) (explaining that the Court did not address the First Amendment challenge to

the redistricting). Incumbent protection is simply not a strong enough interest here to

justify the severe burden on the appellee’s associational rights.

       Incumbents, after all, are already blessed with myriad de facto advantages in the

electoral arena. Appellee’s expert, Professor Jeffrey A. Jenkins, testified that incumbents

generally have better name recognition than challengers because of their time in the

public eye. J.A. 884. Incumbents also have the opportunity to win votes by enacting

popular laws and servicing their constituents, and they have easier access to donors, as

they are proven winners. Id. All this contributes to the “scare-off” effect: potential

challengers, faced with the seemingly insurmountable hurdles, will decide not to run. Id.

       The other reason for incumbency advantage is more salutary. Voters may

recognize that incumbents provide our government with institutional memory and the

wisdom that can only be won through experience. In the legislative branch, which could

find itself at a disadvantage when dealing with career officials and agency specialists of

the executive, the cumulative knowledge and experience brought by incumbents to the

negotiating table is particularly valuable. In this sense, incumbency evens the interbranch

playing field. Without it, novice legislators would find it more difficult to fulfill their

constitutional responsibilities.

       Thus, domination of the political parties by their incumbent office holders is,

perhaps, a natural consequence of political reality. But to the already winning de facto

hand dealt incumbents, § 24.2-509(B) adds a de jure ace: In the circumstances governed

                                             16
by the fourth sentence, challengers would have to compete with already advantaged

incumbents in a selection process chosen by the incumbent himself. This goes too far. It

narrows the possibility of legislative renewal and refreshment through the infusion of

new blood. It risks making the electoral process sclerotic.

       Nothing in the foregoing analysis compromises the “major role” played by states

in structuring their elections. Cal. Democratic Party, 530 U.S. at 572. Election

administration is necessarily an amalgam of state law and party procedures, and the

Commonwealth is surely correct that the rights of political parties in this amalgam are not

absolute in character. We reiterate that “it is beyond question ‘that States may, and

inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce

election- and campaign-related disorder.’” Clingman, 544 U.S. at 593 (quoting Timmons,

520 U.S. at 358). Rather, we simply hold that a state may not force a political party to

hand control over its nomination method to a single, self-interested individual; the private

interest of an incumbent in winning reelection cannot, and certainly not in the manner

chosen here, predominate over the associational rights of political parties.

                                            III.

       The district court also enjoined enforcement of the Act’s second and third

sentences, which protect the nomination prerogatives of incumbent members of the

General Assembly. The Commonwealth argues that this was improper, as the Committee

lacked standing to challenge those provisions. We disagree. The Committee suffered

cognizable, traceable, and redressable injury from the Commonwealth’s application of

those sentences to its activities. And the second and third sentences are, if anything, even

                                             17
more offensive to the First Amendment than the fourth. Accordingly, we affirm the

district court’s decision to enjoin the second and third sentences on § 24.2-509(B) as

well.

        Standing requires an injury in fact that is caused by the challenged conduct and is

likely to be redressed by a favorable decision. See Ohio Valley Envtl. Coal., Inc. v. Pruitt,

893 F.3d 225, 229 (4th Cir. 2018). “To establish injury in fact, a plaintiff must show that

he or she suffered an invasion of a legally protected interest that is concrete and

particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1548 (2016) (internal quotation marks omitted). Throughout a

lawsuit “the standing inquiry remains focused on whether the party invoking jurisdiction

had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election

Comm’n, 554 U.S. 724, 734 (2008).

        The Committee suffered an injury in fact at the time the lawsuit was filed as a

result of the Commonwealth’s application of the second and third sentences, as

demonstrated by the “specific facts” adduced in its submissions to this court. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). These facts are as follows: The

Department issues a series of forms for incumbents and party committees to notify the

Commonwealth which nomination method they plan to use, as they are required to do by

law. See Va. Code Ann. § 24.2-516. These forms reflect the Department’s understanding

of how to apply the Incumbent Protection Act. And yet, throughout the 2016 election

cycle and through the filing of this lawsuit, these forms applied the Act’s second and

third sentences, which should only apply to incumbent members of the General

                                             18
Assembly, to the 6th Congressional Committee as well. Incumbent members of Congress

were given the same plenary power to designate any method of nomination no matter the

circumstance, as if they were incumbent members of the General Assembly.

      The forms themselves best tell the story:

                 DESIGNATION OF METHOD OF NOMINATION
                                        for
                               SENATE OF VIRGINIA
                                       2015
                                       ***
      I, the undersigned incumbent of the Senate of Virginia district indicated
      above, am seeking re-election and designate the following method of
      nomination to be used in determining the party’s candidate for this office
      subject to the forthcoming November general election.

J.A. 892.

              2016 DESIGNATION OF METHOD OF NOMINATION
                                         ***
      I, the undersigned incumbent of the district indicated above, am seeking
      re-election and designate the following method of nomination to be used in
      determining the party’s candidate for this office subject to the coming
      November general election.

J.A. 873. The form used by incumbent General Assembly members in the 2015 election

cycle and by incumbent Members of Congress in the 2016 election cycle are in all

material respects the same. As the Committee noted, “[n]ot only did Appellants

promulgate these forms, they directed non-General Assembly incumbents and party

chairmen to use them.” Resp. Br. of Appellee at 13.

      It is plain therefore that, on those facts, the Committee suffered a sufficiently

“concrete” injury in fact to sustain its challenge to the second and third sentences of the

Act. Because of the forms, any candidate that the 6th Congressional Committee wished to


                                            19
recruit, or anyone contemplating an electoral challenge to the incumbent, faced the

prospect of having to compete in a nomination process selected by that incumbent.

Plainly, this prospect would “dramatically change[] the plaintiffs’ decisions about

campaign financing, messages to stress, and candidates to recruit.” Miller I, 462 F.3d at

317. This distortion of political decisionmaking constitutes an ongoing and concrete

injury sufficient to meet the injury-in-fact prong of constitutional standing analysis. Id. at

317-18.

       That injury, of course, is particularized because the 6th Congressional Committee

serves a unique function in selecting the Republican nominee for Virginia’s 6th

Congressional District. See Lujan, 504 U.S. at 560. The remaining standing analysis is

straightforward: The injury was caused by promulgation of the forms based on the Act’s

second and third sentences, and therefore will be redressed if we find those sentences to

be inconsistent with the First Amendment. For these reasons, the Committee has standing

to challenge the portions of § 24.2-509(B) that protect the nomination prerogatives of

General Assembly members.

       In response, the Department argues that the challenge to the second and third

sentences became moot when the Department updated the offending election forms. 2 But


2
   The Department also argues that plaintiff’s challenge to the Act’s fourth sentence is
moot. It notes that because the current 6th District incumbent was selected by convention,
the plaintiff will not be forced to accede to a primary until 2022 at the earliest. But that
argument relies on the same cramped interpretation of standing that we rejected in Miller
I, 462 F.3d at 316-18. The injuries inflicted by laws that distort the primary process, like
the Incumbent Protection Act, are not confined to the short duration of any particular
primary, but instead reflect the reality that “campaign planning decisions have to be made
(Continued)
                                             20
the update occurred after the lawsuit had been filed. Promulgating new forms may well

have been the right thing to do in accordance with state law. But as a litigation tactic,

such backpedaling will rarely serve to moot a case in federal court. Friends of the Earth,

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189-94 (2000). The

mootness doctrine ordinarily does not extend to situations where a party quits its

offending conduct partway through litigation. Id. After all, “a party should not be able to

evade judicial review, or to defeat a judgment, by temporarily altering questionable

behavior.” Porter v. Clarke, 852 F.3d 358, 364 (4th Cir. 2017) (internal quotation marks

omitted). To overcome that general rule, the Department bears “[t]he heavy burden of

persuading the court,” Laidlaw, 528 U.S. 167, 189 (2000) (internal quotation marks and

alterations omitted), that it is “absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.” Wall v. Wade, 741 F.3d 492, 497 (2014) (quoting

Laidlaw, 528 U.S. at 189).

       The Department cannot carry this burden. It has a history of frequently revising

the relevant election forms. The forms used for congressional nominations in 2014, for

example, reflected the fourth sentence of the Incumbent Protection Act and not the

second and third. Yet the congressional nomination forms were inexplicably changed for


months, or even years, in advance of the election to be effective.” Id. at 317-18. The 6th
Congressional Committee’s claims thus did not become moot with the passing of the
2018 election season. The dispute over the Act’s fourth sentence, rather, is alive and well.
Even so, if the Department were correct that electoral disputes became moot with each
passing election cycle, this challenge, like many electoral challenges, would plainly be
capable of repetition yet evading review. See, e.g., Davis v. Fed. Election Comm’n, 554
U.S. 724, 735-36 (2008).

                                             21
the 2016 congressional elections to reflect the Act’s more fulsome General Assembly

protections instead. The Department has offered no explanation for why the forms were

changed to the benefit of incumbents between the 2014 and 2016 congressional elections.

Even though the forms apparently have been edited once again, we have little confidence

that the forms will not revert back if we hold that this lawsuit is moot. Indeed, that danger

is particularly acute when, as here, a change in the forms would confer benefits upon

political incumbents. The Incumbent Protection Act transparently advances the interests

of those who control the apparatus of government; it is hardly beyond the realm of

plausibility that it would be administered with that same purpose in mind. The

Department’s May 23, 2018 Suggestion of Mootness is accordingly denied.

       We may thus properly consider the 6th Congressional Committee’s facial and as

applied First Amendment challenges to the Incumbent Protection Act’s protection of

incumbent members of the General Assembly. A facial challenge to a law will succeed

after a showing “that no set of circumstances exist under which the law would be valid,

or that the law lacks any plainly legitimate sweep.” Greater Balt. Center for Pregnancy

Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 282 (4th Cir. 2013) (en

banc) (internal quotation marks and alterations omitted). In the First Amendment context,

a facial challenge may also succeed under overbreadth doctrine. Id. But there is no need

to employ overbreadth doctrine in this case, for the Act’s second and third sentences

cannot be applied in a manner consistent with the First Amendment.

       The Department fails to identify a single circumstance where the Act’s second and

third sentences could be lawfully applied. And we find none. The second and third

                                             22
sentences not only share the constitutional infirmities of the fourth sentence but exhibit

those infirmities to an even greater degree. The fourth sentence allows some incumbents

to force a primary under certain designated circumstances. The second sentence goes

further by empowering incumbents to impose their choice of any method of nomination

no matter what the party prefers under almost any circumstances. 3 These advantages,

when given to state or federal incumbents, run afoul of the First Amendment for all the

reasons discussed in detail in Part II, supra.

       The Department raises yet one more challenge, arguing that the district court was

wrong to enjoin the Incumbent Protection Act in its entirety. See Va. Code Ann. § 24.2-

509(B). We review the district court’s decision to enjoin the statute for abuse of

discretion. U.S. Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 320 (4th Cir. 2010).

The Act comprises six sentences. We have now found that each of its operative

provisions—namely the second, third, and fourth sentences—is unconstitutional. The

remaining sentences merely explain how to apply them. The district court did not abuse

its discretion in enjoining the Incumbent Protection Act in toto.

                                             IV.

       Our decision is a narrow one. It is directed at a discrete constitutional imbalance

created by permitting single office holders to negate the associational rights of political

parties in an area central to the party’s very reason for being. Our ruling in no way limits

       3
        The third sentence applies in the relatively rare situation where there is more than
one incumbent for the same office. In that situation, the statute requires incumbents’
consent for any method of nomination other than a primary. § 24.2-509(B).


                                                 23
the ability of states to enact “reasonable regulations of parties, elections, and ballots.”

Timmons, 520 U.S. at 358. The associational rights of political parties are, after all, not

absolute. Laws that impose a slight or lesser burden on associational rights are owed

deference, especially when justified by the need “to reduce election- and campaign-

related disorder.” Id. But our constitutional responsibility, set forth so plainly by the

Supreme Court, requires us to ensure that this “deference does not risk such constitutional

evils as, say, permitting incumbents to insulate themselves from effective electoral

challenge.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 402 (2000) (Breyer, J.,

concurring). The Incumbent Protection Act reflects precisely that infirmity, and it is

precisely why we cannot allow the Act to stand.

       For the foregoing reasons, the judgment of the district court is

                                                                             AFFIRMED.




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