Howard Bashman called to my attention this opinion by Fourth Circuit judge James Harvie Wilkinson III dissenting from rehearing en banc in Miller v. Cunningham, concerning some aspects of Virginia’s laws governing nomination of candidates in partisan elections. Judge Wilkinson’s opinion is important for three separate reasons, and it could in fact attract the attention of the Supreme Court should a petition for cert be filed.
First, Judge Wilkinson lays out his views on how judges should decide election law cases, including a plea against “judicial minimalism” in the context of election law cases.
Second, drawing upon the work of Ely, Pildes, and others, Judge Wilkinson sets out his views on how courts should deal with election laws that benefit, or appear to benefit, incumbents.
Third, Judge Wilkinson expresses the view that states should be free to require political parties to use open primaries for the selection of party nominees, an issue that has not been ultimately resolved, but has been called into question by cases such as the Supreme Court’s California Democratic Party v. Jones case.
I agree with much, but not all, of what Judge Wilkinson has to say. (My own views on these subjects are set forth in detail here.) But whether you agree or not, this 22-page pdf is well worth reading.