prematurely dismissed their complaint at the pleading stage and did so despite the fact that the jurisdictional fact in question in this facial excuse me in this factual dismissal was and is intertwined with the merits of the case and also did so in appropriately because it did so without taking any evidence or conducting an adventure or hearing moreover the court proceeded to impose its own interpretation on the party plan its own resolution of the jurisdictional fact in question in a way that we believe is clearly contrary to the plan and we believe that we could rebut and establish a better and more reliable construction were we given the opportunity to proceed with with evidence or better to proceed with a definitive interpretation of the plan by the republican party which in in the plan is given the authority to definitively interpret its own plan in particular the state central committee of the party is the final arbiter of the meaning of the plan the court was aware of this and indeed references it in the court's opinion nonetheless the parties were denied the ability to pursue an opinion excuse me a determination by the state central committee of the relevant interpretation of the plan provisions what additional facts that you think were needed to arrive at a interpretation of the plan case i think there's a number of potential facts one is testimony of individuals who are involved in the promulgated and and amendment of the plant so there could have been testimony of individuals who could have as they were given get to that i mean th opinion suggests that everybody can see that there were no facts in dispute in this you could move to resolve this dispute as a matter of law do you disagree with that i do that was purely at a motion for plenary injunction there was never a hearing a motion to dismiss in fact our our follow appellant down moxley was not even given time to brief the issues and the motion to dismiss before the court proceeded to its decision and so while we conceded for purposes of the motion for plenary injunction but there weren't facts in that issue we were proceeding on an expedited basis for plenary injunction based on a tight timetable for conducting the allow action based on documents to which all parties of admissibility we were not at all conceding that there were no factual issues in the case who didn't make that objection known to the court i did in our brief we do mention in distinguishing between marshall vs meadows and all parties agreed that the republican party in that case had voluntarily chosen a primary as the method of conducting the nomination in that case and the only question was whether that primary would be open or closed ultimately the court decided that since the party had voluntarily chosen a process knowing that the law virginia made it an open process there was no standing to object to that process being open we were distinguishing marshall versus mentos and in particular we noted that there was a distinct a dispute as to the interpretation of the plan that was articulated at the at the motion for plenary injunction hearing and i would even go on to say that the court itself acknowledged that the plan in the court's own view was ambiguous the court did not rule as a matter of law that the court's interpretation was the sole interpretation of the plan the court said that there are reasonable interpretations before the court and chose rather than the other based on canons of construction that would not have been necessary had the plan been you know clear on its face and so the court was acknowledging an ambiguity which is in fact a factual issue that would you explain how that impacts the standing question  ambiguity impacts the questions they have the well it impacts it in this case i mean standing in this case always and has come back to the issue of the plan interpretation has the republican party in a sense in corporator it and exceeded to the incumbent protection act in the plan and so the question is does the plan exceed to that that act or the virginia legislature in which case there's really no redress ability there's no injury in fact relighted i don't understand that because what choice does the committee have that there's a statute in places that you will do x well and that's our point we believe that that's exactly right your honor that there is a statute in place and what what the committee is doing is coming to the courts and saying we agree that we're bound by virginia law but it's the province of the courts to tell us what the law is and that's what we were asking the district court and that's what we're asking ultimately this court although really we're here for the more procedural issue but we were asking the district court ok concededly we're bound by virginia law we don't reject that but the question is what are the contours and what are the outer limits of virginia law and that's defined not merely by the statute book it's defined by what is constitutional the constitution is the highest law of the land it's the highest law virginia and so if this statute is in fact unconstitutional which we believe it manifestly is then the the act the incumbent protection act fails as a matter of virginia law and it also that the nomination process will be as permitted by virginia law is that is that right well i think so and i think it turns the canons of construction on their head you think though you think that that's right there and i think that is argument right excuse me i think that is their argument and i think it actually flips the canons of construction the canons of construction where a waiver of constitutional rights is alleged by contract that requires clear and convincing evidence of waiver and so silence or ambiguity is not sufficient to establish waiver it has to be a clear convincing explicit waiver of constitutional rights and what we believe the district court did and the appleby's of argued is that there is this ambiguity here and the ambiguity in a fact is interpreted as a waiver of these constitutional rights and really all the spec that way for that's an interesting point which i think is worth teasing out that that you know the relevant provision of the plan says where permitted under virginia law it doesn't point to the act it doesn't point to any provision any particular provision of the law it's talking about the entire law and in that way it's different from from article two paragraph twenty four what comes up in the in the briefing which relates to the definition of primary which is focused on the electoral laws and it's specifically limited to that but it's referring to virginia law and it's basically saying you're bound by virginia law but now the courts are saying you have no capacity to a pretty clear to me that when the district judge issued orders he felt like he had everything she needed in front of her to make the legal decision she had there were there was no more evidence to be of today there were no but nobody else to check with him so what what do you point  was the strongest indication you have in the record that he was or that that you had not completed that you had everything that you intend and dissipated discovery or additional activity i would say two things first of all there's our briefing in which  we explicitly state there are factual issues i will say also the notice that was filed by that was filed by apple e's requesting that there be no further briefing and no hearing on the motion to dismiss that actually saves the commonwealth's motion to dismiss is based on matters of law also presented in opposition to the preliminary injunction so we believe that this was going forward purely as a question of law and it would have been treated as a facial under rule sixty five we obviously had the burden to show a likelihood of success on the merits we did we proceeded with that motion on a limited record for purposes of that motion which again was the only motion heard in the case we conceded we didn't have any particular facts to add because keeping in mind we standing issue was raised by the apple e's on friday before the motion for plumbing injunction which was set for hearing on monday that was the first time in any of the briefing that interpretation of the plan was raised as a standing issue so we went to the motion for pulmonary injunction with what we had already teed up and what we could put together over the weekend but the fact that we could not educe evidence from friday to monday certainly i don't believe is reasonably interpreted as an inability to produce any evidence on what is a factual issue and which in effect the court concedes is a factual issue by holding that the plan is in big us and resorting to articles of concern or or on principles of construction to interpret it and so i'm not saying that that was an unreasonable position for the court to take but i think it was incorrect and it's not supported by the record we were there purely on a rule sixty five motion for plimer injunction and on the basis of our good morning your honor is made please the court my name is rick boyer i represent dan moxley the intervenor plaintiff below and i asked to reserve two minutes for rebuttal of mr moxley challenging the constitutionality of the incumbent protection act as a denial of equal protection now at the outset he makes no claim of there has been any denial of a fundamental right but under crawford versus marion county electoral board and this court's holding in dixon versus maryland board of elections equal protection still requires that election related restrictions must be neutral they must be reasonable they must be nondiscriminatory now with regard to the standing question the threshold issue this court has to get to i think it's most efficiently addressed with reference to this court's holding in dixon the commonwealth and the district court would hold that the party through its plan either incorporates the act is similar in all respects to an incumbent and in this court's miller to decision the court held that an incumbent is not a represent of the representative of the party he's a representative or representative of his own interests a challenger therefore must be similarly treated as a similarly situated individual this act but puts the nomination decision squarely in the lap of the incumbent is just as much a violation of equal protection as a filing fee imposed only on the challenger the crux of mr marc moxley argument is pretty simple x violates the equal protection clause and three critical ways first it unconstitutionally discriminates by creating two classes and this is the key fact incumbent challenger and singling them out for disparate treatment in all material respects incumbents and challenge are similarly situated skinner wiil homa craig the boran both make clear that where there is a discriminatory classification such as incumbent in challenger there must be a qualitative intrinsic difference between the classes here there is none to give the state a rational basis for creating the classification second there is no important right there's no rational state interest at all and granting the incumbent the unilateral right to force the party to choose the nomination method of her choice this is so clear that the commonwealth on asli hasn't even made the argument instead they've merely a sort of a list of benefits they claim that accrue to primaries versus conventions but the classification that the commonwealth has to defend is not primary versus convention versus mass meeting it is incumbent versus challenger that is the classification of the act and as judge diaz has pointed out it isn't the operation of the plant is the operation of the act that works the injury the the closest it comes is an unsupported assertion that granting incumbents the unilateral right to choose their nomination somehow aids the orderly functioning of the electoral process the issue here is whether the commonwealth has justified its distinction of incumbent versus challenger by and by any qualitative difference between an incumbent and a challenger and then it has it justified a rational basis for treating the two classes differently this court in cromer v south carolina and the supreme court and so will be williams held that of a broad state interest even if it's a valid interest cannot support the station such as this and comment versus challenger unless the interest is reasonably related to the classification but even the claimed benefits that the commonwealth sites such as an orderly process a more democratic process are asserted as benefits of a primary versus a convention or another nomination method none of these benefits the commonwealth sites or even tangentially related to the classification here that offends the fourteenth amendment and that enters my client incumbent versus challenger plyler vidoe bob board of trustees of alabama versus garrett continue to reinforce the specific classification incumbent versus challenger here must be directly related to the interest the commonwealth advances in its support i quote here from nordlinger versus haun the supreme court held that in general the equal protection clause is satisfied so long as there is a plausible policy reason for the class the legislative facts on which the class is apparently based rationally may have been considered as true and the relationship of the classification to the goal is not so attenuated as to render the distinction incumbent challenger arbitrary or rational the act here meets none of the nordlinger prongs the commonwealth silence on any rational state interest for the incumbent challenger distinction and the clear text of the act as judge wilkinson pointed out in his miller three dissent both demonstrate the act as unreasonable facially discriminatory and it denies equal protection and again that is because the act what did a classification must do if there are if when there is a class created and discriminate as this one does between the two classes first there has to be a qualitative intrinsic difference between the two classes in common and primary a convention or so forth are in all respects similarly situated the law makes no difference the law cannot discriminate between an incumbent and the challenger they are similarly situated as as regards legal protection so what standard we use for that is a rational basis rational basis standard your honor i think this is a clear rational basis case the commonwealth may and i may try to raise lopez torres which is a free association case was the only rational to make a distinction that one is under oath to protect the constitution of the commonwealth of virginia and is obligated as an office holder to the people of virginia with his or her district will open little division is that a rational distinction to just say my time has expired my brief includes  i don't believe that it is judge and that it's because the if as the supreme court has made abundantly clear and case after case after case it's not just the interest of the candidate that's at stake it's the interest of the candidates voters and the voters w support that candidate that's the underlying interest that has to be protected by the equal protection example gave to their status as obligation to the people if it does your honor and yet the if he wants that once the election is over and if assuming that we assuming the other challenger wins whatever that nomination process of the challenger is going to face those same obligations as the incumbent does the important thing is making sure that as judge wilkinson pointed out in his his mil dissent that that was the dissent you understood your honor but the important thing is that the channels of political change remain open so that the majority of the of the will of the majority of the voters that the your honour's pointed out is not systematically frustrated and the act as it stands threatens to entrench the incumbent to an unconstitutional extent as as this court plurality pointed out and miller to at that point he really isn't representing the interests of the party and he may not be representing the interest of the voters as much as representing his own interests therefore i don't regarding the nomination method and it defers to virginia law appellant subject to the party's choices in the plan and the voters choices in electing sen hanger but standing requires more than that there are no factual disputes and the dismissal below should be  are two primary issues of law for this court the first is interpretation of the party plan which is an unambiguous written contract council of what contrary to what council for the apt helen said the district court did not find that the contract was ambiguous or concede that the contract was ambiguous rather it applied the plain meaning of the key limiting phrase in an article five of us did she say she found one construction more reasonable than the other when you say that kind of thing  huge one construction over the other and so it's more reasonable haven't you resolved well she has she had to constructions in front of her one that they offered and one that we offered but the mere fact that there are more than one construction in that party disagree about what the contract means does not make the contract ambiguous under virginia law is not a big or she would say the plain language which shows as a matter of law this is appropriate instruction well a was more reasonable than the other in your resolving i understand your honor i would point to her language where she specifically rejects the interpretation they offered saying that that's not what the plan says and that's not it's plain meaning i think that's the key portion of her opinion i think it's clear that she's applying plain meaning and i think that it's obviously been ovo on on appeal the contract interpretations so in a sense it doesn't matter but i think it's important to note that there was no finding of ambiguity below and the plain meaning i think is clear you have a delegation to the committee the committee has only the authority that the party delegates to it and the delegation is limited to where the committee is permitted to make that choice  law where virginia law provides for the choice of nomination method to be made in some other way the committee does not have any authority to contradict it that's the parties lawful and voluntary choice in the plan how can that be voluntary if they have no authority to contradict well i'm glad you asked that your honor and it also goes to your earlier question about what was the what was there other choice they did have another choice they had the exact same choice that the party had and actually followed in the mil which was passed an amendment to the plan expressing how you want to do things tell the commonwealth that's how you want to do things and then if the commonwealth refuses based on a provision of virginia law used to that's exactly what they didn't miller they passed an amendment  saying authorizing closed primaries they went to the commonwealth and said we want to close primary kamel said no because we have this open primary law they sued and at the end of miller they got a ruling that although it was constitutional it was unconstitutional as applied in these circumstances so they they had a clear choice but it starts with amending the plan as this court said in marshall v meadows if there is no indication that the party is acting under compulsion or has an objection and the party has just chosen to do what virginia law provides the nuts does the party's lawful and voluntary choice and that means that it's not what yeah i guess i understand that that's a fair i think a fairly formal where any where the weather service in a committee organization i mean they don't have a choice but to comply with the law so i'm not sure what following those formal hoops but that gets you  i think your honor what it does is it creates a conflict between the party plan and the statue i mean isn't the filing of the lawsuit a clear indication that they don't agree with the law well it's an indication that the this committee that these individuals do not agree with the provision of the plan and the provision of the law but this committee has only the authority of the party delegates to it and the plan is the final word on anything it speaks to a appellants statement of fact the plan speaks to the committee's authority here it limits the committee's authority and it permits virginia law to operate wherever virginia law provides for the choice to be made in some other way they raised that the this court said and miller that the incumbent was not a representative of the party that was true in the context of the statute which is what the court was discussing but the party is free to let the incumbent represent the party in any matter they want the party is free to let the incumbent choose the nomination method and that is effectively what they did here let's say you're correct about the committee's lack of standing how does your analysis implicate mr moxley stand i think the  same result and largely the same analysis applies individual members of the party such as mr adams such as mr moxley they are bound by the party plan which is a contract between the members under virginia law well settled virginia law the district court notes in her opinion that no one disputed that that was how the party plan operated and was to be read was a contract between the members under virginia law and so by affiliating with the party becoming part of the party the members agreeing to follow the plan and so the same analysis applies and the same standing conclusions why there is no injury to mr adams mr moxley is rights because they didn't have a right to choose the nomination method and even if there were an injury it's traceable to the party plan and it's not regressive oh by the courts because it's the party's choice and mr adams let me back up to this issue of  contract interpretation and the lack of an ability to present evidence mr adams indicates that this record from cade their ability to present evidence that the only conceded that th e facts were undisputed for purposes of the preliminary injunction hearing is he right now couldn't disagree more the court asks first of all they had extended briefing both before the hearing and after the hearing and never said in that briefing we have facts we want to bring forward we need to do discovery or anything like that they had a two hour hearing where they presented whatever argument they wanted to make never even mention the word discovery they had the opportunity to present whatever evidence they wanted to at the preliminary injunction hearing they did that without objection and they confirmed when the district court asked them not only that there were no issues of disputed fact but also that they had no evidence regarding the key limiting freight in the plan and then and those are on page two or three in two twenty three of the joint appendix and then just a little bit later two twenty five said they had no history regarding the language they'd like to go find something now the testimony of some people who might try to help them contradict with the plan says but unlike in other states and in their reply brief they cite the power tech case that case applies california law where apparently you are free under california law to go on a search for extrinsic evidence to explain a contract under virginia law that's not how it works virginia law if that's a plain and unambiguous contract as it is here you look at the four corners of the contract and you don't go on a search for extremes of evidence so even if they were permitted it wouldn't be admissible so i disagree with that and then i would also note that you can look at page three twenty six of the joint conduct's there was an order of the district court in which the court said i've received this notice but nobody wants a hearing on the motion to dismiss they agreed that there would be no further hearing on the commonwealth motion to dismiss which is very much at odds with the with them saying now that oh we had more it was just because it was the preliminary injunction you know they agreed that would be no hearing on the motion to dismiss and the court agreed the district court agreed that none was necessary and there was nothing that required the district court to hold a hearing on that motion but even after the preliminary injunction hearing when they presented more briefing again no mention of discovery no mention of additional facts there was nothing to tell the district court that they had more to to bring forward and obviously i don't think that anything they would have found would have been admissible anyway so those are the two main issues before the court the interpretation of the contract and also the subject matter jurisdiction the standing issue if the court gets to the constitutional merits do you agree there are intertwined those two issues maybe one is dependent on the other i the meadows and the party plan would also be in a terminus of on a twelve b six motion to dismiss and in fact the commonwealth move to dismiss on both grounds twelve b one subject matter jurisdiction standing and also twelve b six so i i don't know if i w use the word intertwined because this is not a case like this scope of employment case that they rely on where you have to go find a bunch of facts this is a case where you have a legal question the meaning of the party plan it's determinative in both ways  but i don't i don't think i see a tangle of facts to be resolved here if the court does get to the constitutional merits you would apply the anderson verdict framework for a constitutional challenges to state election laws and the commonwealth would prevail under that two first under staffed one because there is no severe burden on constitutional rights there's no severe burden because the parties getting exactly what the plan provides for there's no severe burden because the commonwealth has the right to dictate the party's nomination method and there is no severe burden because there is no lack of opportunity for ballot access if you look at the supreme court case law time and time again they attach great importance to whether there is any lack of opportunity for ballot access you can see that in the american party of texas b white case you can see that in lopez torres you can also see that in burdick itself where the supreme court based its conclusion that there was a limited burden specifically saying in light of the adequate ballot access afforded under why a lot in this case no one has ever said there's a lack of opportunity for ballot access  virginia law and they couldn't the signature requirements are very low mr moxley met them mr moxley in fact got on the primary ballot and ran against senator hanger as did another candidate he had a full and fair opportunity to persuade the voters his way and was unsuccessful but for those three reasons that you would conclude that there is no severe burden which would get you to step two of the anderson burdick analysis looking at the s interests as we've briefed and contrary to what mr boyer said the state has explained what its interests are they are the same interests as our interests in primaries generally voter participation democracy in orderly elections and we have also explained exactly how this statute furthers these interests it's virginia's experience over now a few decades with this law that these disputes arise when party bosses want to get rid of a popular incumbent i think you could see that in martially meadows you see that miller you can see that here where they want to use a non primary method over the incumbents objection as the nineteen seventy three virginia attorney general opinion that we cite in the brief said the general assembly concluded that it wanted to protect the voters who elected an incumbent and ensure that they had the opportunity to elect an incumbent again  as senator hanger pointed out on page one ninety two of the joint appendix in his declaration he chose a primary because it was the best way to ensure that all qualified voters had an opportunity to participate in choosing the nominee and both of those things are consistent with what the supreme court of the united states said and lopez towards which is that we have permitted states to set their faces against already bosses by requiring party candidate selection through processes more favorable to insurgents such as primaries so the state has interests that it's explained here they are related to the circumstances and those specific provisions  the statute post miller there is no concern about forced association and virginia and whether the corps is considering and as applied challenge where you would consider all of the facts of this particular case or a facial challenge which cannot succeed unless the statute is unconstitutional in all applications i think you have to consider the realities and virginia's experience with this law over a few decades and sure it's possible to say that there is some  theoretical political process concerned but there is no actual concern in this case there was ample competition in the the primary and virginia has not experienced any actual problem in its decades with this law  unless the court has any further questions i think that concludes what i had to say and as i mentioned we think the dismissal should be affirmed ok i think we understand your position thank you thank you mr adams thank you judge as a couple of quick points if i could i think i heard in some of the questioning the first time around the question of why didn't we do more to sort of make the court aware that there were factual issues and i believe mr president has identified that basically we do not believe and we do not believe we had to that under the current line of cases we have intertwined jurisdictional and substantial facts facts that go to the merits of the case and in that case it was just inappropriate for the court to resolve the matter on a factual challenge to standing at the pleading stage and we were at the pleading stage so it's at a time when it is not time for discovery we have never and had never received an answer from the defendants and so discovery hadn't proceeded so perhaps we should have pounded the table but but that's our answer to that question and also it relates to the question which might be hanging in the air why did we not ask the court to reconsider the decision when we received it and the reason for that was there were several really the first was that the court's decision was so unequivocal that we felt that it would not be profitable and it would just waste further time particularly given the fact that you know we're now moving into the next election cycle the committee is an ongoing body and a resolution of this matter has to be pursued as quickly as possible still to this day and in particular given the fact that the court did not even entertain a hearing on the motions to dismiss mr mo  we could that is a longer and more time consuming process that frankly we should not be required to pursue because we believe that the plan is already in conflict with the act and we believe that we will be able to reduce the evidence to establish that the idea that if there is an unconstitutional provision of law and the party has to go and basically in some affirmative way write that conflict into the plan seems to me just unwarranted on any legal standard if there is a distance there is a a constitutional violation i don't think the party has to somehow you know acknowledge that within the plant what the party can do and what the party will do is actually rule on a definitive interpretation of the plan there was no ability to do that during the very short life of this litigation but that that ability is there and the court even acknowledged it so i don't think the party has any obligation to amend the plan before it can file and i will point out that mr haslingden has said and there was this element of sort of the elephant not in the room at the trial level but the party as the party had not any way participated in the matter frankly i think that's irrelevant because the committee is a a body of the party acting under its delegated authority but obviously at this level the party has intervened as an amicus in front of the court and has made its position on the plan known through the act of the state central committee in the submission of mr mcsweeney mr adams i hear your argument with respect to the jurisdictional discovery issue is kinda trust me there there are additional facts that need to be discovered but don't i mean even today can you point to something that would result in this  case were to go back to the district court well i will i will freely say that it's outside the current record but since you've asked the party at its june twenty seventh meeting has in fact the state central committee of the party which is the final arbiter of the interpretation of the plan under article on that's a fair point but we also we can produce testimony we have talked to individuals again outside the record this is not in the joint appendix but again since you ask expecting that this will be remanded to the court undercurrents  we have spoken to individuals and we will be able to produce evidence as to the interpretation of the plan all right thank you mr boyer your honour's i need to go back and try to do a better job of answering judge gregory's question as to whether there's a rational basis with regard to the incumbent's responsibility to voters in the constitution i would answer in the words of a judge of justice stevens concurring in the cle vs clean living center the term rational he says includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class those of the word rational for me at least includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially as judge wilkinson points out in his dissent in the the denial of rehearing on bach and miller three he suggests the x plane meaning reveals that there is no public purpose other than to facially discriminate in favor of the incumbent officeholder so that i think that maybe a little better answer to judge gregory's question but with regard to again to mr heston his point as to whether that individual party members are bound by the by the congress by the other of the contract the party plan and so forth the party plan grants the choice of nomination methods to the legislative district committee outright except where permitted by virginia law there is no distinction whatsoever between incumbents and challengers created by the plan as judge diaz i think hinted at earlier the distinction the irrational distinction between incumbent and challenger is created in the statute and the judge he has pointed out the party has no choice regardless of where the part standing is even if the party has acquiesced the party cannot in some sense waive mr mock sleeze fourteenth amendment equal protection right as a condition of his participation and is exercising his free association rights to be a member and a candidate of the party well you have to leave your equal protection rights behind and again mr moxley is not in the pura status of a party member here if he was a pure party member of the standing committee he's not injured it's as a candidate where he is similarly situated with the incumbent that the law has created this irrational that as mr adams pointed out earlier a waiver of constitutional rights has to be clear and compelling i believe that he did sign on for the purposes of being a member of the party you comport yourself with these rules for purposes of being a candidate  he has not signed on to a waiver of his fourth of his up fourteenth amendment right the party can't make him do that the statute can't make him do that but you cited justice stevens in the concurrence what harm is there for the people of the co primary that may be the best the most open form the most democratic form the state of the commonwealth may be correct when there is no legitimate interest and if there is a legitimate interest in primary versus convention there can be no legitimate interest other than sheer discrimination for the incumbent getting to make that choice if there is the supreme court has been clear a state can require a primary the commonwealth can require a primary we're not here to argue that what we're here to argue is what the commonwealth cannot do is create the class incumbent versus challenger and treat them differently and leave that