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Court won’t re-do Democratic primary

Virginia Lawyers Weekly//February 5, 2023

Court won’t re-do Democratic primary

Virginia Lawyers Weekly//February 5, 2023

Where individuals alleged that state officials and Democratic party officials unconstitutionally set and conducted a primary scheduled after a congressman unexpectedly died, but they failed to show a likelihood of success on their claims, their delay weighed against any assertion of irreparable harm and their motion would result in additional costs, confusion and hardship, it was denied.


Congressman Donald McEachin died unexpectedly on Nov. 29, 2022. To fill his seat, Gov. Glenn Youngkin set a special election for Feb. 21, 2023. In this suit, plaintiffs have sued multiple commonwealth officials as well as the Democratic Party of Virginia, or DPVA, and two party officials. They allege that defendants unconstitutionally set and conducted the Dec. 20, 2022, firehouse primary for the open seat. At the conclusion of oral argument on Jan. 18, 2023, the court ruled from the bench and denied the motion, promising an opinion to follow.


The Supreme Court has repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election, a principle often referred to as the Purcell principle. In this case, plaintiffs have not shown that an exception to the Purcell principle is warranted.

Likelihood of success

The Supreme Court has determined that the process by which a political party selects a standard bearer who best represents the party’s ideologies and preferences is a protected exercise of First Amendment rights. Thus, plaintiffs’ challenge of Virginia Code § 24.2-508 as a violative of the Due Process Clause is not likely to succeed.

Moreover, plaintiffs have not shown a likelihood of success on either the First Amendment or the Equal Protection Clause claims because there has been no showing of state action involved in the DPVA’s selection of processes for its primary that could form the basis of an Equal Protection or First Amendment claim against the defendants.

Finally, plaintiffs are unlikely to succeed on the merits of their claim under the Voting Rights Act, or VRA, because they fail to allege sufficient facts to support an inference that the defendants discriminated against an identifiable protected class. Rather, plaintiffs make general and conclusory allegations that defendants intentionally designed the primary to discriminate against elderly citizens and voters of modest means, neither of which are a protected class under the VRA.

Irreparable harm

Plaintiffs’ own delay weighs against a finding of irreparable harm. Plaintiffs repeatedly failed to collect and serve the summonses prepared by the clerk’s office in order to move their litigation forward, and did not finally do so until after the second amended complaint was filed, which was over a week after the primary results were certified.

Plaintiffs argued at the hearing that the “irreparable harm” that all plaintiffs will suffer — even those who voted — absent injunctive relief is damage to voters’ perception of the integrity of the electoral system. But plaintiffs presented nothing beyond the pontification of counsel at oral argument to show that this harm is occurring and will continue to occur absent the relief sought.

Further, the historic level of voter participation seen in the primary — 27,900 votes cast, almost double the participation seen in the last regularly scheduled state-run primary in this same congressional district — suggests that there is ample faith in the integrity of the party’s chosen nomination process.

Undue delay

Plaintiffs also have not demonstrated that they brought their complaint to court without undue delay. Now, in order to grant the relief plaintiffs seek, the court would have to invalidate any votes already cast for the special election. While this bleeds into the next Purcell element, it also heavily impacts the question of undue delay and weighs against plaintiffs.

Costs, confusion and hardship

To de-certify the current Democratic nominee, grant plaintiffs’ request to redesign the primary process and re-do the Democratic primary would necessitate halting and invalidating the already-begun special election process. Beyond the fact that none of this can happen “before the election,” to make any of these changes would certainly cause great confusion and hardship to any voters who have already exercised their vote since Jan. 6, 2023.

Moreover, it would also certainly impose significant costs on both the DPVA (who would have to organize and conduct another primary) and the state (who would have to re-print ballots and re-schedule the special election). Accordingly, plaintiffs also fail to qualify for an exception to the Purcell principle on this final basis.

Plaintiffs’ motion for preliminary injunction denied.

Goldman v. Younkin, Case No. 3:22-cv-789, Jan. 23, 2023. EDVA at Richmond (Young). VLW 023-3-029. 15 pp.

VLW 023-3-029

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