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.
