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Correll v. Herring
Correll v. Herring et. al. was a case argued before the United States District Court for the Eastern District of Virginia. The case centered on the constitutionality of the Commonwealth of Virginia’s election laws regarding the binding of political party delegates to a presidential nomination convention. The case was filed on June 24, 2016. On July 11, 2016, Judge Robert Payne issued a memorandum opinion permanently enjoining the Commonwealth of Virginia from enforcing the section of Virginia election law under challenge.[1][2]
Questions presented:[1]
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Parties to the lawsuit
Carroll Boston “Beau” Correll Jr. is a district-level delegate to the 2016 Republican National Convention representing Virginia's 10th Congressional District. On June 24, 2016, Correll filed a class action lawsuit on behalf of himself and other similarly situated individuals, 49 Republican and 110 Democratic delegates, seeking to prevent enforcement of Virginia Code, §24.2-545(D). Correll's primary counsel was David Rivkin, a partner in the Washington, D.C., law firm Baker & Hostetler LLP. Rivkin served in both the Reagan and George H.W. Bush administrations and was an expert member of the United Nations subcommission on the promotion and protection of human rights from 2004 to 2007.[3]
The defendants named in the filing were:
- Mark Herring, Attorney general of Virginia
- Mark Abrams, Commonwealth attorney, city of Winchester, Va.
- James Alcorn, Chairman, Virginia State Board of Elections
- Clara Belle Wheeler, Vice chair, Virginia State Board of Elections
- Singleton McAllister, Secretary, Virginia State Board of Elections
- Edgardo Cortez, Commissioner, Virginia Department of Elections
The case was heard by Judge Robert Payne.
Potential impact and the 2016 Republican National Convention
Correll filed the lawsuit at the same time as a movement was taking hold among conservative activists to unbind the delegates to the 2016 Republican National Convention—at least in part to prevent Donald Trump from winning the party’s nomination for president. Some conservatives, such as North Dakota National Committeeman Curly Haugland and National Review staff writer David French, argued that the delegates were, in fact, already unbound at the convention. Others, such as Colorado delegates Kendal Unruh and Guy Short, argued that the convention should pass a rule allowing delegates to vote for a candidate other than the one to whom their state party’s rules bind them if that vote violated their conscience on religious or moral grounds.
One obstacle faced by both approaches to unbinding the delegates was the issue of state laws that require delegates to national conventions to be bound by the results of presidential preference polls (such as primary elections or straw polls). As noted below, almost one-third of the states had language—as of 2016—in their election codes dictating the nuances of how delegates were to be bound at national nominating conventions. The specific problem that these laws posed for the movement to unbind the delegates was that even if national party rules explicitly unbound the delegates (such as through a conscience amendment, for example) or were widely interpreted as to have unbound the delegates, the delegates themselves might still have felt compelled to vote at the convention as bound delegates because of state law.
Payne's favorable ruling, therefore, was expected to work to the advantage of the movement to unbind the delegates. Even though it is only binding in Virginia, the ruling could have helped alleviate the legal concerns of delegates from states with similar laws on the books seeking to vote at the 2016 national convention for a candidate other than the one to whom they were bound by the results of their state's caucus or primary election.
Case background
Virginia law governs the procedures by which a political party may hold a nominating contest to select delegates to a party’s presidential nomination convention. Section §24.2-545(A) of Virginia law stipulates that "the duly constituted authorities of the state political party shall have the right to determine the method by which the state party will select its delegates to the national convention to choose the party's nominees for President and Vice President of the United States including a presidential primary or another method determined by the party." Should the party choose to utilize a primary election for delegate selection, the law provides that "each registered voter of the Commonwealth shall be given an opportunity to participate in the presidential primary of the political party … subject to requirements determined by the political party for participation in its presidential primary."
Section §24.2-545(D) of Virginia law further provides that, should a party choose its delegates via a primary election,[1]
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the slate of delegates and alternates of the candidate receiving the most votes in the primary shall be deemed elected by the state party unless the party has determined another method for allocation of delegates and alternates. If the party has determined to use another method for selecting delegates and alternates, those delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote. [4] |
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On March 1, 2016, the Republican and Democratic parties held presidential primaries in Virginia. Donald Trump (R) and Hillary Clinton (D) won those contests. Under Section 545(D), Republican and Democratic delegates were obligated to vote, on the first national convention ballot, for Trump and Clinton, respectively.
In his filing with the district court, Correll stipulated that he "believes that Donald Trump is unfit to serve as President of the United States" and that he would not vote for Trump on any ballot at the national convention. Instead, Correll said that he “will cast his vote on the first ballot … for a candidate whom he believes is fit to serve as President, thereby violating Section 545(D).”[1]
The issue concerning Correll’s vote at the convention is that Republican Party rules in Virginia allocate delegates on a proportional basis, and, according to Correll, only 17 of 49 delegates were allocated to Trump as a result of the March 1, 2016, primary. Thus, "if Correll were to cast his first-ballot vote at the convention in accordance with the Republican Party of Virginia’s rules, there is a substantial likelihood (greater than 65 percent) that he would have to vote for a candidate other than Mr. Trump, thereby violating Section 545(D)." A violation of Section 545(D) in Virginia is a Class 1 misdemeanor, subject to "confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both."[1]
Furthermore, previous convention rules have provided that state delegations subject to binding requirements other than those authorized by the Republican Party would be subject to penalties. Correll claimed that, because Section 545(D) mandates that the primary election contest winner receive all of the state’s delegates’ votes on the first ballot, this could be considered violative of Republican Party rules—both nationally and, specifically, in Virginia—which require proportional allocation. Correll alleged that, if forced to adhere to Section 545(D), both he and other similarly situated delegates may be preempted from being seated at the 2016 Republican National Convention.
Correll's claims
Correll assertted that Section 545(D) would subject him to "irreparable injury, through either prosecution or loss of his ability to exercise his First Amendment rights." As a result, Correll argued that any attempt by Virginia to enforce 545(D) violated his rights under the U.S. Constitution and exceeded the authority of the commonwealth's powers.
Specifically, Correll alleged the following claims:[1]
- 1. That Section 545(D) abridged both his First Amendment right to freedom of speech and freedom of association by "stripping delegates to a party's nomination convention of their freedom to vote their conscience, or to vote consistent with party rules, when selecting a presidential nominee and mandating that they vote for a particular candidate."
- 2. That Section 545(D) exceeded Virginia's authority under the U.S. Constitution to regulate "in certain areas that implicate exclusively federal interests."
- 3. That Section 545(D) restricted Correll's, and others', right to vote for the candidate of one's choice, in violation of the Fourteenth Amendment.
Herring's response
On July 1, 2016, Herring and the named defendants filed a memorandum in opposition, requesting that Judge Payne deny Correll's motion for a temporary restraining order and to dismiss Correll's suit entirely. In the filing, Herring stated, "The statute at issue merely protects the will of the voters of Virginia who participated in the primary process and are represented by elected delegates like the Plaintiff and Intervenors. He was chosen to convey the will of Virginians at the Republican National Convention, and he knew the rules when he voluntarily stood for election to be a delegate."[5]
Laches
Herring alleged that Correll's motion for a preliminary injunction should be denied through application of laches. Black's Law Dictionary defines laches as:[6]
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1. Unreasonable delay or negligence in pursuing a right or claim - almost always an equitable one - in a way that prejudices the party against whom relief is sought ... |
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In order to prove laches, proof of two elements must be established: lack of diligence by the aggrieved party (delay) and prejudice. In Herring's view, Correll's unreasonable delay prohibited his claim: "Plaintiff has delayed (at the very least) over two months to file his claim, waiting until just before the Republican National Convention to try and upend the process that has been firmly in place for some time ... If Plaintiff was so concerned about having to cast a vote for Donald Trump at the convention, why did he run as a delegate?"
Furthermore, according to Herring, Correll's delay "was calculated to give the state (and the Court) as little time as possible to consider his claims. Thus the only reason for his delay was to prejudice defendants."[5]
By arguing that (a) Correll unnecessarily delayed filing his lawsuit and (b) this delay was done with intent to prejudice the defendants in this case, Herring argued that laches preempted Correll's claims for relief.
Standing
Herring also requested that the court dismiss Correll's suit claiming that Correll lacked standing to bring the suit. Herring's filing claimed that three elements are necessary to establish standing for bringing the suit: injury, causation, and redressability. Herring argued that the results of the March 1 primary constituted Virginia's vote on the first ballot and that the votes would be proportionally divided according to the rules of the Republican Party. "That means Plaintiff's specific vote will not actually be recorded as a vote for any candidate on the first ballot ... And since Plaintiff will not be required to do anything, he will suffer no injury."
Similarly, Herring alleged that Correll cannot show causation because, if Correll is required to vote for Trump on the first ballot, that is a requirement of the rules of the Republican Party, not the state of Virginia. "The state law is not causing him any injury. And Plaintiff has no argument that the party cannot bind his vote. The Republican Party is a private actor and thus cannot violate Plaintiff's constitutional rights by requiring him to vote in a certain way."
Thus, Herring claimed that, because Correll cannot prove either causation or injury, there was nothing for the court to redress and, because of this, Correll failed the three necessary elements for standing.[5]
Other claims
Herring concluded his filing by arguing that Correll's petition for both a temporary restraining order and a preliminary injunction should both be denied on two separate grounds: that Correll was unlikely to succeed on the merits and that all equitable factors in the case favored the state. These factors included: (a) Correll's inability to prove a harm absent an injunction, (b) that "any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury", (c) the balance of hardships factor favors Virginia, and (d) that public interest weighs against changes to election laws made at the last-minute.[5]
Correll's reply
In a reply brief filed July 5, 2016, responding to Herring's arguments, Correll challenged many of the claims made by Herring.[7]
Laches
Addressing Herring's laches claim, Correll argued,[7]
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...laches is not a shield for future violation of the law and so does not apply to requests for prospective injunctions that require only inaction of the defendant. Even if laches potentially were applicable, Correll acted with diligence, requesting the Commonwealth’s opinion on Section 545(D) on the very same day, May 25, that his claim became ripe as a practical matter and then bringing suit shortly after a Commonwealth attorney responded. Any delay does not prejudice Defendants. The only burden they identify, concerning the cost of administering the primary back in March, has nothing to do with Correll or any other delegate, who could not have brought suit until after the primary. [4] |
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Correll argued that his challenge was not barred by laches because it was neither untimely nor prejudicial and that the laches defense offered by Herring should be rejected by the court.
Standing
Correll madedistinct claims that he had standing to bring a suit challenging 545(D).
1. That the provisions of Section 545(D) requiring winner-take-all binding provisions on delegates violated Correll's right to freely associate at the convention and that these provisions constituted an injury-in-fact. Citing a 2014 U.S. Supreme Court case, Susan B. Anthony List v. Driehaus, Correll's filing noted, "[A] plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder'. In this case, Correll has affirmed that he intends to cast his first-ballot vote at the 2016 RNC Convention for a candidate other than the primary winner, Donald Trump, an act that is proscribed on the face of Section 545(D) and thereby subjects him to a credible threat of prosecution."
2. Correll also claimed that delegates had standing to prove associational rights, and that the party organization was not the only entity with interest in enforcing the party's rules. Citing another Supreme Court precedent, Sweezy v. New Hampshire, Correll argued that "Associational rights belong to party members and delegates because they are, after all, the ones associating ... As the Court made clear, 'any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.'"[7]
Other claims
Correll refuted some other claims made by Herring:[7]
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Although nominally disputing Plaintiff’s showings on irreparable injury, the balance of the equities, and the public interest in their "Summary of Argument" ... Defendants do not actually present any argumentation on those points. Their summary argument regarding irreparable injury mirrors their argument on standing, and is mistaken for the same reason. They do not address or dispute governing case law holding that a plaintiff’s showing that he is likely to prevail on the merits of a First Amendment claim satisfies the other injunction factors ... They do assert, with respect to the balance of equities and public interest, that an injunction would impose 'great cost' on the Commonwealth of Virginia because it would '[render] the primary results meaningless.' But the Defendants chose to hold the Republican primary after the ... October 2015 declaration that delegates would be proportionally allocated, making that claim lack credibility. Moreover, the law is clear that 'it is always in the public interest to protect First Amendment liberties.' Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir. 2011) (quoting Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004)). Defendants cite no authority that the public has any cognizable interest in violating the First Amendment-protected associational rights of RNC delegates. The Intervenors contend that the public interest weighs 'against last-minute changes to election laws,' but Section 545(D) does not regulate elections at all and so does not implicate state and public interests in the orderly administration of elections that might weigh against 'last-minute changes.' [4] |
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Motion hearing: July 7, 2016
- See also: Curly Haugland
In a motion hearing before Judge Robert Payne on July 7, 2016, Correll's counsel called Curly Haugland, a national committeeman from North Dakota and member of the RNC Rules Committee, to give testimony as an expert witness. Haugland published a book in 2016 in which he argued that delegates to Republican national conventions are and always have been allowed to vote their conscience on all matters at the convention—the lone exception being in 1976 when an official rule was added to the convention rules explicitly requiring delegates to be bound by the results of their state’s caucus or primary election. Haugland has also been vocal about his belief that state laws seeking to govern the actions of delegates to the national conventions of political parties are unconstitutional.
Questioning of Haugland focused on the intricacies of the Rules of the Republican Party, with a particular emphasis on rules such as Rule 16, Rule 29, Rule 37, and Rule 38. Haugland was also questioned about statements he made in his book regarding the non-legal consequences for delegates who vote for a candidate other than the one to whom they were bound or pledged their support. “Although delegates arrive unbound at the convention, that does not mean they can do as they like without consequence. As discussed in Chapter 5, a delegate that has pledged her support to a particular candidate is going to have to think long and hard before breaking that pledge. Upon returning home, she will have to explain her decision, and if her answer is unsatisfactory, she is unlikely to enjoy much of a future in the Republican Party. After all, who would support for county chair, or state central committee, or national delegate, any person who has already broken a pledge for a non-legitimate reason?” wrote Haugland.[8] For more on Haugland’s views on delegates and conventions, see here.
Jesse Binnall was also called as an expert witness for the Trump campaign, which participated in the hearing as an intervenor. Binnall's testimony centered on parliamentary procedure and whether Haugland's interpretation was correct.
Defense counsel made additional arguments that the Republican Party was elected to participate in a state-sponsored primary and was, therefore, beholden to state law regarding delegate allocation. The attorneys for Correll, in response, frequently cited Democratic Party of U.S. v. Wisconsin ex rel. La Follette, in which the Supreme Court held that state election law could not override the delegate selection mechanisms of a political party for its national convention.
Memorandum opinion: July 11, 2016
In a memorandum opinion issued July 11, 2016, Judge Payne entered judgment for Correll, permanently enjoining the Commonwealth of Virginia from enforcing Section 545(D).
Judgment
The opinion restated the five counts which Correll presented in an amended complaint:[2][9]
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Count I alleges that Va. Code § 24.2-545(D) ('Section 545(D)') violates Correll's First Amendment right to free political speech, more specifically his individual right to 'vote for a presidential nominee at a party's nominating convention, by stripping delegates to the 2016 Republican National Convention 'of their freedom to vote their conscience, or to vote consistent with party rules.' (Am. Compl. SISl 43-45). Count II alleges that Section 545(D) violates Correll's First Amendment rights of free association, again 'by stripping delegates' to the 2016 Republican National Convention 'of their freedom to vote their conscience, or to vote consistent with party rules.' (Am. Compl.SISI 51-52). Count III alleges that Section 545(D) 'exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States' and cannot be enforced. (Am. Compl. SISI 59-60). Count IV and Count V present prayers for forms of relief, rather than claims upon which relief may be granted. [4] |
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In his opinion, Judge Payne entered a judgment in favor of Correll on Counts I and II. The judge did not enter a judgment on Counts IV and V "because they are prayers for relief, not claims upon which relief can be granted." The judge dismissed Count III with prejudice because "Correll put on no evidence as to Count III and did not argue it."[2]
Precedent
Whether state election law supersedes a political party's rules relating to delegates has been disputed in court. In 1981, for example, the U.S. Supreme Court held in Democratic Party of U.S. v. Wisconsin ex rel. La Follette that state election law could not override the delegate selection mechanisms of a political party for its national convention. At issue was whether Democratic delegates from Wisconsin could be seated at the Democratic National Convention when they were allocated based on the results of an open primary, in violation of national party rules.[10]
The Supreme Court held that the Democratic Party was not required to admit the Wisconsin delegates to its national convention since they were not allotted in accordance with the party's rules. Justice Potter Stewart wrote, "A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational."[10]
Nearly 70 years earlier, the Nebraska Supreme Court held in 1912 that the "expression of a preference for President by those voting at primary election ... is only morally binding on delegates to national party conventions."[11][12]
Several states explicitly indicate that portions of their election law are subject to the rules of political parties. For example, New Jersey state law affirms that national and state party rules govern the selection and certification of delegates, notwithstanding any state statutes.[13]
As of December 2022, nearly one-third of states had language in their election code specifically referencing how many ballots to which a delegate should or must be bound at a national convention:
Argument that delegates were unbound
During the 2016 Republican presidential nomination process, there was debate about whether delegates to the Republican National Convention were bound to vote for the candidate that won their states' primary or caucus.[14][15][16][17]
Most Republican Party officials, like RNC Chairman Reince Priebus and a majority of Rules Committee members, supported the view that the Republican delegate allocation rules set by state parties and state laws were binding, and that pledged delegates were required to vote according to the results of their state’s primary or caucus.[18][19] However, some argued that the state party rules and laws were not binding at the convention. Rather, they argued, Rule 37(b) of the national party rules and historical precedent supported the interpretation that delegates could vote according to their own preferences.[14]
| “ | The history of the Republican National Convention proves that delegates have always, with the exception of 1976, been free to vote their conscience, and the rule that has protected this right over the last 136 years [Rule 37(b)] remains part of the temporary rules of the 2016 convention. The U.S. Supreme Court’s rulings on the issue also make clear that delegates are free to ignore state laws purporting to bind them, and the one national party rule purporting to bind delegates expires at the start of the convention.
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Ultimately, the Rules Committee of the Republican National Convention in 2016 adopted a version of Rule 16 of the national party rules that affirmed the requirement for pledged delegates to vote according to how state party rules bound them. The rule said, “The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under Rule No. 16(a)(1), state law, or state party rule.” The Rules Committee also voted to amend Rule 37 with an additional clause saying, “Nothing in this rule shall be construed to prohibit the binding of delegates pursuant to Rule No. 16(a).” Steve Scheffler, a Rules Committee member and member of the Republican National Committee, said, “The voters have spoken. Why would 112 people [members of the Rules Committee] say, ‘We don’t care what you did, we’re going to set our own rules?’”[20]
Click on the following links to learn more about arguments for and against this interpretation of delegate binding:
- Green Papers: "The Ties that Bind–or Do They?" (March 19, 2016)
- The Hill: "All Delegates Are Unbound" (July 11, 2016)
- National Review: “Not a Single Republican Delegate Is ‘Bound’ to Donald Trump” (June 9, 2016)
- The Hill: “GOP delegates are legitimately bound, deal with it” (July 7, 2016)
See also
- United States District Court for the Eastern District of Virginia
- United States Court of Appeals for the 4th Circuit
- State election law and delegates to national conventions
- Democratic Party of U.S. v. Wisconsin ex rel. La Follette
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 U.S. District Court for the Eastern District of Virginia, Correll v. Herring: Complaint, filed June 24, 2016
- ↑ 2.0 2.1 2.2 U.S. District Court for the Eastern District of Virginia, Correll v. Herring: Memorandum opinion, decided July 11, 2016
- ↑ Baker & Hostetler LLP, "David B. Rivkin, Jr.," accessed June 25, 2016
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 5.0 5.1 5.2 5.3 U.S. District Court for the Eastern District of Virginia, Correll v. Herring: Memorandum in Opposition, filed July 1, 2016
- ↑ Garner, B. (ed.) (1999). Black's Law Dictionary, 7th edition. St. Paul, MN: West Group. (page 879)
- ↑ 7.0 7.1 7.2 7.3 U.S. District Court for the Eastern District of Virginia, Correll v. Herring: Reply to Response to Amended Complaint, filed July 5, 2016
- ↑ Haugland, C. & Parnell, S. 2016. Unbound: The Conscience of a Republican Delegate. Woodbridge, VA: Citizens in Charge Foundation. (p. 86)
- ↑ U.S. District Court for the Eastern District of Vigrinia, Correll v. Herring: Amended complaint, filed June 29, 2016
- ↑ 10.0 10.1 Supreme Court of the United States, Democratic Party v. Wisconsin ex rel. La Follette, decided February 25, 1981
- ↑ Nebraska Legislature, "Nebraska Revised Statute § 32-704," accessed May 1, 2016
- ↑ State ex rel. Nebraska Rep. State C. Com. v. Wait, 92 Neb. 313 (1912)
- ↑ State of New Jersey, "Division of Elections," accessed April 27, 2016
- ↑ 14.0 14.1 The Hill, "All delegates are unbound," July 11, 2016
- ↑ National Review, "Not a Single Republican Delegate Is ‘Bound’ to Donald Trump," June 9, 2016
- ↑ The Hill, "GOP delegates are legitimately bound, deal with it," July 7, 2016
- ↑ The Green Papers, "THE TIES THAT BIND-- OR DO THEY?" March 19, 2016
- ↑ Politico, "Never Trump movement gets little help from convention rules panel roster," June 23, 2016
- ↑ The Wall Street Journal, "Anti-Donald Trump Forces See Convention Coup as Within Reach," July 6, 2016
- ↑ The New York Times, "Donald Trump and R.N.C. Crack Down on Rebelling Delegates," June 26, 2016
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