cums ort ui ccm reas IN THE UNITED STATES DISTRICT COURT FEB 25 208 See RI UCrORVINGIGA _aurtvrpas oe Se ae “pr Re AeENNETHIL ADAMS ni nde Charm of 24 Senatorial District Republican Committee sd 247 1H SENATORIAL DISTRICT REPUBLICAN COMMITTEE Phaintts os ase No, SISCWQOOIS— JAMES B. ALCORN, in is oficial capacity a8 ‘Chairman of the Virginia State Board of Elections Serve James B. Alcorn ‘UNOS 700 North 4 Steet Richmond, Vinginia 23219 CLARA BELLE WHEELER, in er oficial capacity 28 ‘Viee-Chairman ofthe Viegiia State Board of Blestions Serve: Clara Belle Wheeler [Blue Ridge Hand and Grthopeedic Clinic 1754 Stony Pint Ré. Charlottesville, VA 22911 SINGLETON MeALLISTER, in er olficial capacity as ‘Seartay ofthe Virginia State Boar of Elections Serve: Singleton B. Medlistr Huseh Blackwell, 750 17th Steet, NW, Suite 900 ‘Washington, D.C. 26006 and ‘VIRGINIA DEPARTMENT OF ELECTIONS Serve: Edgardo Cortes Commissioner, Virginia Department of Bections Washington Building 1100 Bank St, 1" Floor Richmond, Virginia 23219 Defendants‘VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ‘Nature ofthe Case 1. This is aut challenging the legality of Va. Code (1950) § 242-509 (B), as amended lso krown asthe Incumbent Protection Act (the Act”). As stforh herein, the Act infknges upon the defendants’ right of fe association secured by the First Amendmeat to the CConsiiion ofthe United State of America, Jurisditon and Venue 2. This case arses under the United States Constitution and 42 US.C. §§1983 and 1988, as sinended. ‘This Cont has jarisiction over the claims asserted pursunt to 42 USC, § 1983, per 28 U.S.C. § 1351 and 28 US.C. § 1348. The declaratory and injunetive relief sought is authorized by 28 U.S.C. §§2201 and 2202, 42 US.C. §1983 and Rule $7 ofthe Federal Rules ‘of Civil Procedure, Venue is proper inthis dstelet pursuant to 28 U.S.C. § 1391 (). ‘The Batiss 3. Plain 2 Senatorial Diseet Republican Commitee ("Committe") is an uincosporeted association, designated pursuant tothe Plan of Organization (the Plan”) of the Republican Party of Virgina (the Paty”) as a Legislative Disriet Commitee to determine the ‘method of nomination for candidates secking the Republican nomination for he 24 Senatorial “District fo the Veginia General Assembly, Te 24 Senstrial dist os entirely within the gcopraphic boundaries of this Court, The Commitee’ business address is 712 Pelham Drive, tached hereto es Exhibit A, and ‘Waynesboro, Virginia 22980. A copy of the Plan is Snoomporated herein.44. Plsintioe Kenneth Hf, Ads Adams") i natural person and a resident of, and registred voter in, the independent City of Waynesboro, Viegas, located in Virginia Senate Distt 24. Adams is a member andthe Chima of he Commits 5. Defendans James Alor, Clara Belle Whecer and Singleton McAllister are respectively the Chairman, Vice Chain and Secretary af the Vigina State Bottd of Elections (the Board”), They are sued in their ofial capacities. As officals of the Botrd they ‘plement and enforce the laws ofthe Commonwealth of Vegnia eee to clectons, inter ali, ‘Va Code (1950) § 242-500 et eq. The Virginia Code grants the Board authority to make rules nc regulations, issue istetons, provide information “eonslste: wi he eletin laws tothe elector boards and registers” ad o take legal action to enforce hose las, Va. Coe (1950) § 242-103 a amended. 6 Defendant Virginia Department of Elections isan agency of the Commonwealth of Virginia. The Department of Elestios is responsible for, nd conics, the Sate Board of Eleatons administrative end programmatic operations and discharges the duties ofthe State Board of Elections, consistent wit delegated authority. cts “The First Amendment othe Constitution ofthe United Stats of Amerie, made applicable othe States by the Fourteenth Amendment, reads as fl ows: ‘Congress shall male no lay respecting an establishment ofeligion or prokibiting the free exercise thereof; or abridging the freedom of spetch, or of the press; ot the right of the people peaceably 16 assemble, and to petition the government for a redress of grievances, 8. The First Amendment protects “the freedom to join together in furtherance of ‘common political beliefs.” Tashilanv. Republican Party of Connecticut, 419 U.S, 208, 214, 107 38. C1. 544, 93 L. Bd, 514 (1986), As such, the Court has “vigorously afirm[ed te speciel place the Fret Amendnet reserves fo, and forthe special protection it ecco the process by which 4 politcal party “selec « standard bearer who best represents the party's deologies and preferences.” California Democratic Party v Jones, S30 US. $67, 575, 1208, @. 2403, 147 L Bd, 24502 (2000), 9. Asthe Sapreme Cour ofthe United States held in Democratic Parbi ofthe United ‘Stats v, Wisconsin, 4501.8. 107, 122, 101 S.Ct, 1010, 67 L, Ed. 2d 82 (1981), “Fredom of, sssoation would prove an empty guazante if associations could not init contro of their Aecisons to those who share the interests and persuasions that underlie the assocaion’s Bing.” 10, The right commonly known as “the right of fee association” is an expression of “te ight ofthe people aeaceuby to assemble” and te sght of fee association includes the right to not essocat, a8 wel, See California Democratic Party ofthe United States, 20 US. t $74 11. Notwithstanding these base Constitutional protections, Va, Code (1950) § 242- 509 provides as follows |A. The duly constituted authories ofthe state poiial pary shall have the right to determine the method by which a party domination fora member ofthe United Stas Senate ot for any statewide office shall be made, The duly constinted authorities ofthe politcal party forthe district, county, city or town in which any otter offic i be filled shal he the right to determine the method by which a prty nomination for that ofice shall be made [B.__Notwithstanding subsestion A, the following provisions shall apply tothe determination of the method of making party nominations. A party shall mominate its ‘candidate for dleclon for a General Assembly district where there is only one Incuriben of tht party for the dstlt by the method designated by that incumbert, or ‘absent any designation by him by the method of nomination determined by te party. perty shall nom nate its candidates for eleation for a General Assembly district where {hee is more then one ineumbent ofthat party Torte discs bya primar unless al the Incumbents conset toa diferent method of nomsinaliva. A pat, whose candidate athe ‘immediately prevedingelestion fora particular office other than the General Assembly 4(1 was nominated by a primary or filed fora primary but wes not opposed and (i) was. ‘lected atthe General Election, shall nominate a cana forthe next election for that ‘ffce by a primary unless all incumbents of that pat Tor the next offi consent to a diferent method. When, under any of the foregoing provisions no incumbents offer as candidates for reelection to the same office, the method of nomination shal be determined by the paliial ary. For the purposes ofthis subsection, any offecholder who offers for reelection tothe same office shall be doomed an incumbent notwithstanding thatthe dit which he represents dies Inpar for which he offers for election. (Emphasis supplied) 12, As the United States Court of Appeals for the Fourth Circuit stated in Merv. Brown, 503 F.3d 360, 369 (Ath Cir, 2007), "tbe language aad structure af § 24.2-509 make oes nat view the lea tha, a est for purposes of sletng a nomination metod, Virgin Incumbent legislator an representative ofthe party.” The Ae teefore purports to, prevent police pres from determining ther own nomination methed under creumstances in which “theres only one incumbent ofthat pasty forthe dst.” 13, The Plan delegates the authority of the Paty to determine thé means of nomination for candidates for the Virginia State Senate tthe Legislative District Comite, which “shall determine whether candidates for Leysative Disct public office shall be sominated by Mass Meeting, arty Canvas, Convention or Peary, where permited Wo do so under Virginia Law.” (Ale V, §D) 14, On December 3, 2014 the Commits, meting in Fikton, Virginia, adopted a resolution designating «convention a the means of zominaton for Vepnia Senate Distict 24 fen 2015, 15. On or about December 4, 2014 Adams, on bebalf ofthe Commitee, wrote to 5Chases Judd, then Chairman ofthe Sate board of Bloctons and designated a convention asthe trict 24 for 2015, Adams delivered that designation, slong with means of nomination for ‘explanatory correspondence dated December 4, 2014 by Adams’ counsel, tothe Board at its offices, See Exhibits B and C,atached hereto and incorporate herein, 16, On Febraary 24,2015, Emmet Langer (“Hanger”), the only incumbent Senator in the 24” Senatorial Diseet of Virginia, provided Adams, this home in Waynesboro, Virginis, with his written degnation ofa primary asthe method of nomination fr the 2015 eleetioneyele Pursuant tothe Act. Hanger further provided a copy ofthat designation tothe Department of [Elections and the Board on that dite. Copies of Hanger's eter to Adam, and the Board of [Bections form designation submited by Hanger, are attached collectively as Exhibit D. 17, Va, Code (1950) § 242-516, as amended, stats a follows: -Ench political party within the Commonwealth shall fuish othe Stale Board the ‘names and addresses of its sate, county, and city party chlcmen iz January of ‘each year, and during the remainder ofthe year it shall notify the Board of any ‘anges in Sach names and addresses [At least 135 days prio tothe ruler date fora primary, the Board shal inguire of| tach state chairman and each county snd city cheinnan whether a diet primary has been adypted. The Board shall advise cach chairman that noi/latiom to the Board of the adoption ofa direct primary Is required ani rust be fled withthe Board not more than 125 days and not less than 105 days before the dae set for the primaries. Each chatrman shall file tmely written notice withthe Board whether or not a ‘primary has ben adopted snd identity each office for whieh w primary has been ‘opted. The requirement to noiy the Board of the adoption ofa divest primary ‘hal be satisfied when the Board receives bythe deadline (}) wnten notice from the approprate party chaiman oF (i) a copy of the written notice from an incumbent officcholéer to his pecty chairman of the incumbents seletion, pursuant to §24.2-509, of the primary as the method of nomination. (Exphasissaplied)18, Va. Code (1950) § 242-527, as amended, stats as follows: ‘A. It shall be the duty ofthe chaieman or ehuimon ofthe several committes ‘ofthe respective paris to furnish the ame of any cantidate for nomination for ‘any office tobe elected by the qualified voters af the Comnionweatthat large ot ‘of ¢ congressional dsiet or of a General Assemilydistct tothe Sate Board, tnd fo furnish the name of any candidate fr anyother office to the State Board and to the electoral boards charged with te duty of preparing ad printing the primary ballots, In fishing the name of any such candidate, the chrmen shall ‘erty that a review ofthe Bled candidate petitions found the required minimum ‘nambee of signetures of quilted volts Zor that oie to have been met. The ‘chinman shall also certify the order and date and time of fling for purposes of printing the ballots as prescribed in § 24.2528, rovied thatthe State Board Shall determine the order and dete and time of fling or eandates for United States Senator, Goveror, Lietenant Gover, and Attomey General for such purposes. Each charnan shall comply withthe provisiens of this section not less {han 70 days before te primary. B. In no oase shall the individual who is candilate for an office be the ‘person who cerifes te names of candidates for primery for that same office. ‘such edge the party sll Gesignate an alternate oMiil to certify the candidates. (Emphasis supplied) 19, Ve, Code (1950) §§ 242-516 and 242-527 purport to obligate Adams, as (Chairman of the Commitee, to certify thats primary has Seen selected as the manner of 24, in contravention ofthe tems ofthe determining the Republican nominee for Senate Di Plan and, tetefore, tho arsosiative ight of Adan the Commitee andthe Paty. As a reut of this deprivation of constitutionally proteted sighs, Paintfis wil sufer immeiste and Imeparble ny. 20, In enforcing the Act, Defendants Alcorn, Wheeler and MeAlistr, a oicers of the Board, and the Department of Elections, all act under cclor of state law with repost to Plaintiffs in a manner violative of the First Amendment, andthe plains are therefore entitled to relief pursuant to 42 US.C § 1983(Cause of Action: Frstand Foustenth Ansendonents 21, Alloftheaforestted paragraphs ar filly incorporated herein, 22, The Act contravenes the rights of Adams, the Committee ind the Paty 10 fee sesocation as scoured by the Fiat and Fourteenth Amendments to the Constitution by ‘determining the method hy which nominee are chases in cntavention of te tems ofthe Pen rarowly tailored to 23, The Ast wither advanes compelling ate interest no seve that intrest. 24, Hangers designate a primary, contrary tothe designation by the Commitee of cvilenced by the "2015 ‘convention, and his designation has been accepted by the Board, ‘Methods of Nominatios* published by the Board, a copy of which is atached as Exhibit B, Jy justiciable controveey betwen the parties susceptible of -Assoedngly, this isan med resolution by declaratory elif pura to 28 U.S.C § 220 A 25, ‘Thi contoversy is in need of immediate resolution because the method of somination choten by Yanger (primary) pursuant to the Act, and the method of pomination -choten bythe Commitee (convention) pursuant tothe Plan are mualyexchsive, Absent prompt ction by the Con the general public andthe delared candidates wil be uncertain 981 ich nomination metho wil detemine the Party's nominee fr Senate Dire 24 26. The defendants’ refusal to recognize and implément tbe éecsion of the ‘Commitee regarding the metho of nomination forthe Republican candid for Senate Disret 24, made pursuant othe Plan, violas the Fits and Fourteenth Amendments tothe Cnsitation ‘of the United States of Antics.27, By maining, implementing andlor enforing the Act, Defendants are ‘propagating customs, policies and practices that violate the plant’ rigs oe esoition ‘under the Firat and Fourteenth Amendments othe Constuton ofthe United States of America, 28. Defendants violation of the Fist and Fourteenth Amendment is etonable under 2USC.§1985. ‘Til 29, Plaintiffs Kenneth 11, Adams and the 24% Senatorial District Repuk ‘Commitice request atrial by jury. Relief Requested WHEREFORE, Plaintiffs Kenneth H. Adams and the 24" Senatorial District Republican Committee respectfully request that . ‘A, The Court declare pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983 that Va Code (1950) § 24.2-509 (B) is an unconstitutional violation of the First and Fourteenth Amendments tothe Constitution ofthe United States, B, The Court grant then such further relief pursuant to 28 U.S.C. § 2202 as may be necessary to effectuate the declaratory judgment issued by this Court; ©. The Court issue a preliminary and therefler # permanent injunction protibiting Defendsnts from implementing a rimary election to determine the Republican nomination for Virginia Senete District 24 forthe 2015 genera eletion eyele; D, That the Court declare that the Republican nomination for Virginia Senate Dist, 24 forthe 2015 general election eyce shall be determined by a convention;TE. The Court make all further orders just, nséessary and proper to ensre complete {fies of this Court's declaratory end injunctive oder in this ons The Court issue an order requting the defendants to pay plaintiff's costs, ‘expenses and reasonable atiemey's fees incued in the prosecution ofthis ation, as authorized by DUS. § 1988; and ©, The Court gran such other and free relief a8 aproprite and jus. Respectfully Submitted, KENNETH H, ADAMS, invidoally and a5 (Chair ofthe 24 Senatorial Distt Republican Commitee 24TH SENATORIAL DISTRICT REPUBLICAN COMMITTEE, By Counsel Johan C. Wirth (VSB No, 37338) ‘Nelson, MePhersoe, Summers & Senos, L.C. 12N.New St, Staunton, VA 24401 ‘Telephone: $40-885-0346 Faceimile: 540-885-2039 Email johnwinhamssls.com And 102 mn ‘Thomas B. Uilich (VSB No. 28737) Jeffrey R, Aidans (VSB No. 43411) ‘Wharton, Alizee & Weaver, PLC 125, Augusta St. ‘Staunton, VA24401 ‘Telephent: 540-885-0199 rosin: $40-213-0390 4YRRIEICATION 1, RemnethH. Adams declare under penalty of pagjury that Tm a Member and Chairman of the 24" Senatorial Disrct Republican Committe, thet Ihave read the foregoing, Verified ‘Complaint and know the contents thereof and thal the same re true tothe best of my knowledge, infomation and ble. decor ttl RENMETE HE ADAMS STATE OF VIROINIA CITYICQUNFHOP a ‘This day personaly appeared before me, _ Kenneth tt, Prdams_, whose are is signed tothe foregoing writing, and who, being st duly wor, upon his oath stats thatthe foregoing writing ie re to the best of his knowledge and belie ‘Given under my and this AS diy oF, Floaasny 2015 Shit My commision expires: _qTuly31 Bolte My Registration No:__Me" 105 2