Beau Correll, a delegate to the Republican National Convention in Cleveland this summer, wrote a letter to his local Commonwealth’s Attorney pointing out a potential wrinkle in how Virginia’s Republican delegates are bound. Correll asks whether a provision in Virginia law governing how delegates are to be bound will be violated if he or other delegates don’t all vote for the winner of the Virginia primary on the first ballot. The answer to his question is “Yes.”
Virginia Code Section 24.2-545 requires that when delegates are selected by convention (i.e., not elected as part of a candidate slate pursuant to the presidential primary results), then they are to be allocated in a winner-take-all fashion to the candidate receiving the most votes in the presidential primary. The relevant portion reads as follows:
If the party has determined that its delegates and alternates will be selected pursuant to the primary, 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 [nb: district and state conventions], 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.
(Emphasis added). The rules of the Republican Party of Virginia require that its delegates be elected at its 11 Congressional District Conventions (three each), and at the State Convention (13 at-large delegates, plus the three members of the Republican National Committee). Thus, Virginia law requires that all of these delegates be bound to Donald Trump, the candidate who received the most votes in Virginia’s March 1 presidential primary.
HOWEVER, this same Code of Virginia (section 24.2-544) places the presidential primary on the first Tuesday in March. Because the RPV State Central Committee chose to bind Virginia’s delegates by the March 1 state-run open primary, they forced a conflict between state law and RNC rules, which mandate that no winner-take-all contests occur prior to March 15.
The party chose to overlook the state law requiring winner-take-all allocation and to instead adhere to RNC rules by proportionally allocating delegates on the basis of the primary results.
Now that there is no possibility of a contested convention it really doesn’t matter, though. There is ample Supreme Court precedent in similar cases where the court ruled that the party’s rules on delegate selection and allocation took precedence over state law, meaning that the law is likely unenforceable in any case.
However, if this had been a contested convention between Donald Trump and Ted Cruz, and if (as was very likely) Virginia’s delegation would have skewed heavily toward Cruz on a second ballot, the unlawful binding of delegates would have made Virginia’s delegation a very tempting target for disqualification by those on the RNC Credentials Committee who might have been allied with Trump.
In such an instance, a lot of folks who voted for the presidential primary over a convention might have had serious cause to regret it.