## Facts

- Virginia law generally allowed party committees to choose how to nominate candidates, but gave an incumbent state legislator seeking reelection the statutory right to select the nomination method, including a state-run primary.
- Virginia’s primary elections were “open” to all qualified voters, limited mainly by a rule barring a voter from participating in more than one party’s primary for the same election.
- Stephen Martin, an incumbent Republican state senator for Virginia’s 11th Senatorial District, invoked the incumbent-selection statute and chose a state-run Republican primary for his renomination.
- The 11th Senatorial District Republican Committee (the Committee), the local party unit responsible for nominations in the district, sought a “semiclosed” primary that would exclude voters who had participated in a Democratic primary during the previous five years.
- Virginia law did not authorize a semiclosed primary format, and the Virginia State Board of Elections denied the Committee’s request, requiring the primary to remain open under state law.
- The Committee and related plaintiffs sued Virginia election officials, claiming that forcing an open primary in these circumstances violated the Republican Party’s First and Fourteenth Amendment associational rights.
- The district court held the open-primary law constitutional on its face but unconstitutional as applied when an incumbent’s statutory right to choose a primary forced the party to use an open primary; the court entered relief based on that as-applied ruling.
- A Fourth Circuit panel affirmed the district court’s as-applied decision, and state officials sought rehearing en banc.
- By the time the Fourth Circuit considered the case en banc, the 2007 primary and election cycle connected to Senator Martin’s nomination had concluded.

## Issues

1. Whether the Committee’s challenge to Virginia’s open-primary requirement, tied to the completed 2007 nomination contest, presented a live case or controversy or had become moot under Article III.
2. If the case was moot, whether any exception—such as “capable of repetition, yet evading review”—kept the dispute justiciable.
3. What the proper appellate disposition is when a case becomes moot during appellate review, including whether to vacate the prior judgment and remand.

## Decision

- The en banc Fourth Circuit held that the dispute concerning the 2007 primary was moot because the election had already occurred and the court could not grant effective relief tied to that concluded contest.
- The court concluded that the record did not justify applying an exception that would keep the case alive for decision on the merits.
- The court therefore did not decide the merits of the Committee’s First Amendment as-applied challenge in the en banc decision.
- The court vacated the earlier judgment and remanded for further proceedings consistent with its mootness ruling.

## Legal Principles

- Federal courts may decide only live “cases” or “controversies” under Article III; when events end the dispute and effective relief is no longer available, the case is moot and the court lacks jurisdiction to reach the merits.
- Election disputes often become moot after the election, unless an established exception applies.
- The “capable of repetition, yet evading review” exception requires a showing that the challenged action is too short in duration to be fully litigated before it ends and that the same complaining party is reasonably likely to face the same action again.
- When a case becomes moot on appeal, an appellate court commonly vacates the judgment below and remands so that an unreviewable decision does not remain in place as a binding resolution of the merits.
- If jurisdiction is absent, a court must resolve justiciability before addressing constitutional questions.

## Conclusion

In Miller v. Cunningham, the en banc Fourth Circuit treated the Committee’s challenge to Virginia’s open-primary requirement in the 2007 nomination contest as moot once the election had passed, declined to reach the First Amendment merits, and vacated the prior judgment with a remand for proceedings consistent with the lack of a live controversy.


Miller v. Cunningham, 512 F.3d 98 (2007)