Much digital ink has been spilled here on Beau Correll’s lawsuit challenging a Virginia law purporting to bind Delegates voting at the Republican National Convention.
Judge Payne of the U.S. District Court for the Eastern District of Virginia in Richmond held an all day hearing yesterday on a preliminary injunction motion, and then took the case under advisement. Erling “Curly†Haugland is a co-author of the book Unbound, and testified at yesterday’s hearing.
Here’s the deal. RNC rules, unless repugnant to public policy, trump (ahem) public laws under the First Amendment right to Freedom of Association (a long acknowledged doctrine derived from a combination of Freedom of Speech and Freedom of Assembly). No one is suggesting that Correll must ignore RNC rules and instead follow an ineffectual Virginia law binding Delegates.
When bringing a constitutional challenge to a statute there are two ways to bring the challenge:
- An as-applied challenge: This challenges the law as applied to the specific individual under specific facts relevant to that individual at a specific time.
- A facial challenge: This challenges the law as unconstitutional in all applications.
The Court, if it can find any instance in which the law is constitutional may not declare the law invalid under a facial challenge. Here are some constitutional uses of the law: If a political party chooses to not dictate how Delegates are bound, or if the political party specifically defers to state law, then the state law is not unconstitutional.
That means Correll is left with an as-applied challenge. Under his specific facts he is not bound by Virginia law but by RNC rules. Right now no Virginia Delegate is remotely being threatened with enforcement of the Virginia law in contravention of RNC rules. Without such threat there is no imminent harm.
That being said, Judge Payne, in an abundance of caution, might choose to declare the Virginia law ineffectual under current RNC rules as-applied to the Virginia delegation.
WHICH MEANS NOTHING.
As fellow TBE contributor, Mick Staton, has repeatedly pointed out, even if Correll is successful it does not change the RNC’s rules for binding delegates.
Here is the kicker: Correll knows this.
Part of the stipulations filed for the preliminary injunction hearing include the following:
There is no challenge to RNC or RPV rules. These rules still apply just as they did yesterday, the day before, three months ago at the Tenth District Convention, and six months ago at Correll’s candidate filing deadline.
Moreover, if the RNC rules are changed, then any ruling from this Court on an as-applied basis would be ineffectual as the as-applied Order of the Court can only apply to the current set of facts, and not a new factual paradigm set by Delegates at the convention.
This case is a PR stunt. Correll if successful, accomplishes nothing legally, Correll if unsuccessful loses nothing legally. This is a waste of the Court’s time, a waste of the SBE’s time, a waste of AG Herring’s time (da*n you for making me say something in defense of Herring), and an affront to Virginia’s primary voters.
One final note on the pro-Trump intervenors. Despite what the actual intervenors say publicly about this case, their formal legal positions as submitted to the Court are well thought out and careful.
24 comments
Paul, I would like to ask you a question slightly off topic but I believe somewhat relevant to this charade by the Correll/Haugland Plan. I completely understand that this will in no way impact the convention’s frist round ballet in any manner and the supporting legal precidents are extremely clear. It’s as you say a PR tactic or perhaps a magician’s slight of hand to draw attention away from the area where the real event is actually happening.
What would be the situtation though if the Convention (through a rules committee recommendation) votes to adopt different Rules at the beginning of the Convention. It is my understanding that the Convention may change the current Rules and adopt a different Rule at the beginning of the Convention and, if they do this, that Rule could be placed in immediate effect. Therefore a RNC Rule prohibiting binding could be adopted by the National Convention, to be effective at the 2016 Convention, to relieve delegates of their state binding.
Certainly those advocating a “conscience amendment†clearly understand this and they are right I believe. So is the “real” task of this Unbinding party schism pushing the Convention to adopt a Rule that vitiates state party rules and state laws binding delegates. The consequences of, in effect, delegitimizing the previous primary process and the short and long term effect on the Republican Party be damned. Crazy to me but not beyond the machinations of these individuals and the only reasonable explanation I can see for the active effort by so called Virginia conservatives to engage in the level of delegate slating we saw in the recent delegate convention process.
Do I have my facts straight here and is this the only real play to overwrite the national primary preference vote by this group of party insiders? If this isn’t a feasible goal then I have absolutely no idea what all the noise they are creating is really about other then your assessment of PR though to what end game purpose other then to ruin their public political reputations I can’t comprehend.
Do you have the facts straight? Yes.
Is this the only real play? Yes.
Is this the “real” task? Yes.
The question not exactly asked: Is this a feasible goal? I believe it is possible, but I have been wrong about a lot of political predictions since Trump announced.
Haugland, from what I can tell, wants to litigate whether Delegates are bound in a court of law without suing the RNC. Correll likely recognizes this case as legally unnecessary, but views it as productive in changing the narrative to create a rules change at the convention. I feel strongly that they have not given up hope of a major rules change at the Convention.
Free the delegates!
Free the voters!
When a guy like Randy Forbes eats the political big one, I would think the party might want to watch their step.
It accomplishes something of the delegates are unbound in Cleveland so….
(should be read very slowly for some people)
From Ballotopedia:
“A ruling in favor of Correll, therefore, could work to the advantage of the movement to unbind the delegates by removing—or at least alleviating—the legal concerns of delegates seeking to vote at a national convention for a candidate other than the one to whom they were bound by state law and/or state party rules…”
Later on the article.
Nearly one-third of states have language in their election code specifically referencing how many ballots to which a delegate should or must be bound at a national convention:
Arizona
California
Georgia
Indiana
Kentucky
Massachusetts
Michigan
Nebraska
New Hampshire
New Mexico
Oklahoma
Oregon
Tennessee
Virginia
The US Supreme Court has already ruled decades ago that State Laws cannot supersede party rules. The only reason any delegates may be required to follow state laws is because the rules of the Republican Party say they are supposed to, unless those state laws are in conflict with Party Rules.
For example, state law in Virginia says that the winner gets all the delegates, but Party Rules say that since we held our primary before March 15th, we are required to award delegates proportionally. Since the state law is in conflict with the Party Rules, the state law is ignored.
If the Delegates in Cleveland vote to change the rules that say delegates are bound to any candidate, then there is nothing a state can do about it, lawsuit or no lawsuit.
I’ve read that you posted that multiple times the last several weeks.
Why fight an statute that imposes potential jail time to delegates in 2016, you seem to ask. However, I would challenge you to cite that the issue of 24.2-545(D), or a statute like it imposing jail time, has actually been challenged. Your precedent is 70s/80s. The statute is 90s. Are you saying that the House of Delegates Legislative Counsel was just asleep at the wheel? Do you, a software engineer, know more than these people that advise the General Assembly?
You only cite to a general proposition on the interplay between parties and associational rights and fail to understand the urgency of the Party of Lincoln potentially lost to a buffoon.
The fight on the Code section is not just a fight to ensure 65% of the delegation are not committing misdemeanors (they are) according to 24.2-1017, but it’s to send a message to ~ 20 states that they are not bound under state law to undermine a Trump nomination.
These people clearly want something fresh and recent to waive around in the faces of delegates that they need not fear state binding laws.
If you don’t get that is the thrust of what these guys are doing then there’s really nothing that can open your eyes. You already, apparently, know more than everyone – the AG, the Judge, and the Plaintiff.
“These people clearly want something fresh and recent to waive around in the faces of delegates that they need not fear state binding laws.”
You are making the point of the author. This is a publicity stunt. They would be better off sending a letter to all the current delegates (of which I am one) informing them of the relevant case law.
In fact, all they have really done is run the risk of getting an adverse ruling. What are they going to do if this judge decides to ignore the legal precedent set by the Supreme Court and side with the state? Ever thought of that? This judge could end the “free the delegates” movement with the stroke of his pen on Monday.
Stupid, stupid move on their part. and all for a publicity stunt.
I suppose one person’s publicity stunt is another’s political maneuver to shore up support in a convention amongest A THIRD OF THE UNION. That approach is far preferable than you and Prados’ approach of trying to explain Cousins v. Wigoda to a chaotic convention.
You seem genuinely confused. Let me distill your argument succinctly: “bc of ‘supreme court precedent’ the rules of the party overrule binding laws of a state.”
That isn’t entirely relevant. What’s relevant is a state “winner take all” statute AND IT IS CRIME. That means all you delegates but the 17 allocated to Trump, the 65 percent of others, ARE COMMITTING MISDEMEANORS. Actually try reading the lawsuit. Corell sued the government, not the Republican Party.
Your analysis seems to stop at the convention hall. If there was a similar law for YOUR computer programmer association would you feel vindicated bc the procedural rules controlled at your convention? Absolutely not. Because you would have to go home AND POTENTIALLY FACE CRIMINAL PROSECTION.
*dense*
I somehow see you running home from the convention and under belief that some archaic Republican rule will be authoritative on a Virginia prosecutor and judge.
Example:
Judge: What rule do you point to that supports that I not convict you under 24.2-545/1017?
Mick/Prados: The Republican Rules, sir!
Judge: Hmmm…Guilty.
And to preempt your argument SCOTUS has held the assurances of no prosecution, or lack of prosecution, are not sufficient to show no injury would occur.
This is to resolve the issues between the states and associational rights. Your argument that theres nothing worth litigating bc its already been litigating would shock the entire legal community and everyone in this federal case.
Both you and Prados’ arguments are meritless.
Actually, you have distilled my argument succinctly. Because of supreme court precedent, the rules of the party overrule the laws of a state. Very good, and it is entirely relevant. Because of that precedent, there will be no prosecution of any delegate by any state. There is not a prosecutor in this country who is going to waste their time trying to charge a delegate to the National Convention with a crime. If you really think that any delegate risks facing any criminal charges, you are the one who is dense.
And it is not some archaic Republican rule that will protect me from being prosecuted. It is called the 1st Amendment, which includes freedom of association. which is what will be occurring when we go to Cleveland. Official representatives of a political party coming together to select their nominee for President. No state government has any role to play, or holds any power over that.
Instead of tilting at windmills, it might be more helpful if the “free the delegates” movement did things like, oh, I don’t know…CONTACT THE DELEGATES!!! We are about 1 week out and the only thing I have heard from this group is getting an email with the offer of a free book. I haven’t heard a plan. I haven’t heard a campaign pitch (and trust me, this is a campaign). I haven’t heard how they plan to change the rules to allow delegates to vote the way they want. I haven’t heard how they plan to change the rules to allow someone other than Donald Trump or Ted Cruz be nominated (they are they only two candidates that qualify under current rules).
Most importantly, I haven’t head who they want the delegates to vote FOR! You can’t beat someone with no one.
If the “free the delegates” movement wants my vote for anything they have to earn it. If their plan is to treat us delegates like mushrooms (keep us in the dark and feed us crap), then there is no way they are going to get what they want, and that goes for any other group out there trying to change the rules.
Learn to read. Open up google. Google Va. Code 24.2-545 (d) and 24.2-1017. Read it. Apply it to your situation as a delegate. Not only is it criminal when 65 percent of the delegation votes against Trump according the the party plan but as a per se violation of a statute the entire delegation is subject to civil liability as well. But you already knew that right? You know everything.
You have some kind of superiority complex. Like you think you know more than everyone. More than General Assembly legislative counsel who approved this after the SCOTUS precedent that your whole argument is based, more than the AG that is defending the law, more than everyone. Goes to show what people say about you is absolutely true.
The sad thing is that you sit on the sidelines nitpicking this guy who is attempting to shore up support for a new candidate and you are such a wet blanket.
Mark H., respectfully, you don’t know what you’re talking about. The statute is unenforceable when in conflict with party rules. This is crystal clear from Supreme Court precedent, which is why our proportional delegations the last two conventions weren’t prosecuted. I’m not saying there isn’t any good reason, from the Free the Delegates perspective, for this case, but those good reasons aren’t about achieving a useful new interpretation of the law and are instead all about reapplying existing precedent for the sake of publicity/momentum for their cause.
Every single comment you have made in this blog post has had some snide remark in it, starting with your very first line “(should be read very slowly for some people).†I have tried to ignore it, but you have now graduated to outright insults. I usually don’t mind people using pseudonyms (I used to use one myself for a long time), except when they are just doing it to be able to insult people anonymously.
You claim I have a superiority complex, yet all I am doing is presenting an argument that is backed by FACTS and EVIDENCE. You, however, have yet to refute a single thing I have written, or a single thing Paul has written in his blog post.
Nobody has been threatened with jail time (which agrees with my position).
The Attorney General’s office made clear in the hearing that nobody will face prosecution (which agrees with my position).
The Supreme Court case law agrees with my position.
The other TBE writers, Paul P. and Steve A. (both lawyers I might add), agree with my position.
So you see, I don’t think I know better than all those people. My position is in agreement with them.
As for the “General Assembly legislative counsel,†(which in Virginia is called the Division of Legislative Services), they are not always called upon when writing legislation, and even when they are there is nothing that requires members of the General Assembly to follow their advice. The DLS doesn’t make laws, and they can’t stop a member from submitting a bill that will not be enforceable, nor stop other members from voting for it.
The fact that the law was passed after the Supreme Court precedent was set means absolutely nothing. The General Assembly could pass a new law tomorrow making it a crime to issue same sex marriage licenses and not a single County Clerk would be arrested or prosecuted for it because of the legal precedent set in the Obergefell decision.
Now, why would a law continue to be on the books if it is unenforceable? Because the rules of the Republican Party say that state laws can be used to bind delegates as long as those rules don’t conflict with the party rules. Different states want to bind delegates in different ways, and as long as those laws don’t conflict with the Party Rules, then we are supposed to follow those laws. I have written an entire post about it. Maybe you should take your own advice and “learn to read.â€
Now if you want to keep attacking me personally, go right ahead and keep it up. I especially enjoyed your, “goes to show what people say about you is absolutely true†line. It reminds me of Trump’s, “nobody likes you!†attack on Ted Cruz. But if you want to keep that going, have the guts to use your real name, troll.
Mick, I would disagree on here has to do with the psuedonym. Mark is using his real name and he is a fellow Delegate to the convention. I knew who he was from the beginning.
His tone here has been poor.
I’m pretty sure Mark H. is not who you think it is.
I stand corrected. I encourage “Mark H.” to out himself.
No one has contacted you? Shocker. Why would you expect them to waste their time contacting you? You sold out to Trump the very second Cruz suspended his presidential campaign. All you do it ride on the back of your father in law, and occasionally write a blog post for a weak regional blog. I’m not sure how you can align yourself with leftist Trump. The only thing conservative about Trump is his stance on immigration. Besides that Trump agrees with Hillary or is to the left of her on most other issues. You’re not a conservative. You are a sell out for a dog taint in a bad toupee who Hillary will beat from prison in November.
If by ”regional blog” you mean most of the readers are from Virginia, you are correct, but we also get readers from many other states and foreign countries. We are hardly ‘weak’.
When did Mick Staton EVER say he supported Trump? He didn’t. But he will abide by the rules of the Republican party as he was elected to do.
You do realize that Mick was elected to public office in Loudoun County before his marriage, so his FIL had nothing to do with it.
Hillary’s going to prison? Really? Who is going to bring charges against her? The FBI?
Ignoring the tone…
There is some merit to the argument that a person should not have to risk prosecution to avoid the hindrance of an unconstitutional law. There are many cases that address this. The instant case is not a clear case where this doctrine applies, it is in the gray area..
As for your example: Campaign finance laws are routinely challenged in the exact manner you gave as your example. Prosecution is brought, unconstitutionality is raised as a defense, Defendant “skates.”
Unfortunately when it comes to election law the G.A. enjoys passing laws that are constitutionally suspect.
The Delegates are not bound under state law, unless the party plan of the state says they are, and it is not in conflict with RNC rules.
A buffoon, perhaps. But he is a buffoon patriots support for president.
Mark, This lawsuit will not have any effect on the other states’ laws unless their statutes and party plans are identical to that of Virginia. If they are identical then it does not matter for the reasons I stated above. If it is just about racking up a single win, then it is a PR stunt. further items addressed below.
There is no financial loss either, the case is being funded by Citizens in Charge.