Professional Documents
Culture Documents
Correll Unbinding Trump Case Virginia
Correll Unbinding Trump Case Virginia
JL I I 2016
V.
3:16CV467
Mark R. Herring,
In his official capacity as
merits
of
the
FIRST
AMENDED
VERIFIED
(ECF No.
For the
20)
filed
reasons,
by Carroll
CLASS
(the
set
bench trial on
ACTION
COMPLAINT
"Amended Complaint")
Boston Correll,
Jr.
C'Correll").
forth below,
judgment
Correll,
Convention,
Virginia
filed
delegate
VERIFIED
to
CLASS
the
Republican
ACTION
("Complaint")
National
COMPLAINT
(ECF No.
FOR
1)
on
national
filed
conventions.
the
Amended
the
(Compl.
SIH
Complaint,
delgates
in
putative
includes
allegations
36-41).
which
class.
purporting
Subsequently,
does
The
to
not
Correll
include
Democrat
Amended Complaint
represent
class
now
of
all
Several
National
other
Virginian
Convention
defendants.
(ECF No.
delegates
subsequently
22).
to
the
moved
2016
to
Republican
intervene
as
though upon
(''the Intervenors") ^
the
position
modified
class
certified.
^ Mark
of
the
Intervenors,
identified
Accordingly,
R.
Herring,
in
the
it
is
doubtful
the Amended
claims
Attorney
Complaint
that
General
that
were
of
even
could
tried,
the
given
the
be
and
so
upon
Commonwealth
of
of
Elections;
Clara
Belle
Wheeler,
Vice
Chairman
of
the
Virginia
State
Board
of
Elections;
Singleton
McAllister,
Secretary of the Virginia State Board of Elections; and Edgardo
Cortez, Commissioner of the Virginia Department of Elections.
(Compl.,
official
ECF No.
1).
capacities
and
are
represented
in
this
case
by
the
Eugene
Delgaudio,
Virgil
Goode,
Tamara
Neo,
Howard
individually.
Va.
Code
Correll's
24.2-545(D)
First Amendment
("Section
545(D)")
violates
more
at
party's
nominating
convention,"
''by
stripping
party
to
vote
rules."
(Am.
Section 545(D)
association,
their
conscience,
Compl.
SISl
or
to
43-45).
vote
Count
consistent
II
alleges
again
"by
stripping
delegates"
to
SISI
Count
retained
Constitution
Compl.
of
by
the
SISI 59-60).
of relief,
for
Injunction.
alleges
the
that
Section
Commonwealth
United
States"
and
of
2016
545(D)
(Am.
"exceeds
Virginia
cannot
be
Compl.
under
enforced.
the
the
(Am.
Immediately
Motion
III
the
conscience,
powers
that
51-52).
with
after
filing
Temporary
(ECF
No.
4).
his
Complaint,
Restraining
During
Order
telephone
Correll
and
filed
Preliminary
conference,
the
decision the request for a restraining order and the request for
a preliminary injunction.
Court
set
argument
the
on
motion
July
1,
for
2016.
an
evidentiary
(Order,
hearing
ECF Nos.
11,
and
18) .
oral
At
the
pursuant to
Fed.
the Court
consolidate
R.
Civ.
P.
65(a)(2),
should further
At
No.
40)
set
of
(Tr.
trial,
Jul.
the
7,
parties
presented
consisting
42,
164:12-165:5).
Joint
Stipulation
(ECF
of
minutes
from
earlier
Republican
National Conventions.
an
testify about
expert witness
Party
that
Rules''),
to
govern
the
particularly
proceedings
about
the
Rules
of
the
Republican
of
the
national
party
RNC Rules
16,
17,
and
37,
(""RNC
38.
The
C'RPV")
made pursuant
to RNC Rule
16.
At
the
OF FACT
present
force,
and
and
effect
of
RNC
Rule
16
and
of
RNC
Rules
37
38.
who
presently
serves
as
member
of
the
Republican
National
Convention,
and
has
served
13:4-30:5).
Rules
as
far
Haughland
back
as
has
1880,
studied the
and
has
(Tr.
history of
co-authored
an
as
Jul.
1,
the
RNC
online
book
positing the thesis that the RNC Rules allow delegates to vote
1,
2016
Jesse
13:4-30:5).
Binnall
The
Intervenors
C'Binnall"),
offered the
certified
(Tr.
testimony
professional
has
national
advised
and
Republican
local
levels
convention
about
those
delegates
rules,
and
has
at
the
advised
(Tr.
Jul.
2016 103:1-110:11) .
predecessor
rules
have
been
(Tr.
interpreted
Jul.
7,
to
allow
delegates
2016 32:13-33:16,
to
44:10-53:7).
Haughland also opined that RNC Rule 16 does not control voting.
(E.g. ,
Tr.
RNC Rules
RNC
Rules
Jul.
37
7,
and
2016 59:24-63:21).
38
16(a) (1)
do
and
not permit
(2)
"'conscience voting"
together
with
RNC
Rule
16(c) (2)
The Conscience of a
Repxiblican
Delegate
(2016) ,
available
http://thisiscommonsense.com/pdf/Unbound_online.pdf.
5
and that
1,
2016
127:3-130:17,
134:12-22;
136:21-137:19).
The
is
no
need
to
further
discuss
the
debate
over
the
to
because it
Thus,
is
their
views
it
16,
controls
impeachment
publication
Court
Binnall's
that
RNC Rule
16 is
testimony
text of the
in effect
rules.
presently
at
the
convention.
significantly
using
(e.g.,
credits
finds
voting
were
the
logical
the Court
and that
to
Rule
undermined
passages
Tr.
Jul.
Additionally,
7,
from
by
Haughland's
the
Haughland
2016 82:10-93:3),
as
Defendants'
&
Parnell's
In
closing
arguments,
Correll's
counsel
agreed
that,
if
by
RNC Rule
16,
rather
7,
2016
225:5-6).
than
voting
for
the
Counsel
for
candidate
the
Intervenors
also
this
(Tr.
Jul.
agreed
that
the
case
could
Section
be
545(D)
resolved
to
allow
by
enjoining
Virginia's
the
enforcement
delegates
to
vote
of
in
However,
Intervenors stressed
that the Intervenors still strongly opposed any finding that RNC
Rules
37
and
38,
conscience voting.
singly
or
jointly,
permit
unrestricted
and
some
of
the
were
proposed
for
possible
2012,
the
2012
Republican
National
record
four
at
times;
Joint
However,
the
the
parties
("RNC Rules") .
current
Exhibit
have
1.
Convention
form
On
this
radically
of
the
the
much,
adopted
rules
the
different
is
in
parties
views
the
agree.
about
the
on
testimony,
in
force
text
of
the
RNC
rules
and
on
Binnall's
Convention,
delegate
the
convening
including
votes.
(Tr.
delegate
Jul.
7,
of
the
2016
allocation
2016
Republican
and
the
135:8-136:2).^
binding
Further,
2016 36:2-39:7.)
National
of
the
(Tr. Jul.
record
shows
itself,
are
that
RNC
Rules
26
to
temporary
rules
for
42,
use
according
in
the
to
2016
Rule
42
Republican
the
assembled
delegates
RNC
at
that
2016.
convention,
which
Tr.
will
Jul.
take
7,
2016
135:8-136:2) .
Rule
16(c)(2)
requires
that
any
state
presidential
primary that occurs before March 15, 2016 must "provide for the
allocation of delegates on a proportional basis."
p.
12).
According
Republican
Party''
to
RNC
that
violates
Party
rules
Ex.
of
primary:
1,
17(a),
Rule
as
''state
16(c) (2)
or
will
p.
on
state
have
On
September
C'RPV")
required
its
15) .
March
1,
1,
by
19,
adopted
2016;
(2)
RNC
which
not
Rule
2015,
the
resolution
in
Virginia
(1)
Rule
(Joint Ex.
for
voters
Republican
to
hold
would vote
delegates;
16(c)(2),
2015.
would
and
(3)
allocate
The
2012
RNC
Rules
did
govern
the
2012
Republican
National
(Tr.
Jul.
7,
Rules
26 to
2016 39:5-7).
41 are merely
by each candidate,
Ex.
2;
Joint Ex.
3,
pp.
4,
C'RNC") .
8).
information to the
(Joint
Ex.
(Joint
3).
RPV s
RPV
Republican National
Rule
16(f)
Filing also
3,
p.
That
Declaration
included
(Joint
provision
(Joint Ex.
2015
3,
p.
resolution
delegates).
from
providing
RPV s
Virginia's
5)
Rule
for
16(f)
elections
Filing
code,
also
division
contained
including
the
text
of
an
excerpt
of
Section
545(D).
The
their
primary
candidate
election
in
preferences
which
was
Virginia
held
on
voters
March
1,
expressed
2016.
The
won
the
plurality of
4).
most
34.80
votes
in
the
percent of votes.
primary
(E.g. ,
election,
ECF No.
25,
with
Ex.
2,
John Kasich 9.54 percent, and Ben Carson 5.87 percent; all other
candidates
ECF No.
received
25,
At
Ex.
2,
local
selected as
less
than
percent
of
the
vote.
(E.g.,
4-5).
delegate
(Joint Stip.,
one
ECF No.
to
40,
16,
the
Republican
SI 17;
Joint Ex.
2016,
Correll was
National
Convention.
6).
Correll signed a
in 0pp.
included
to Mtn.
Injunction,
in
the
RPV s
Rule
16(f)
Filing.
(Def.'s
Mem.
ECF No.
25,
23 n.l4)
(''Def.'s Resp.").
In doing so,
Trump is
that
unfit
voting
Republican
"would
21) .
pleads
to
for
under
serve
therefore
violate
Accordingly,
on
Correll
the
"Concerned
his
Donald
Department
of
first
(Am.
that
first-ballot
Trump,"
that
he
as
could
on
Elections
May
or
by
he
any
vote
25,
at
the
Section
(Am.
"will
other
criminal
for
2016
request
and
2016
545(D),
Compl.
not
vote
ballot,
SI
for
at
penalties
candidate
contacted
an
Donald
the
SI 21).
face
"to
ballot
conscience."
that
ballot,
Compl.
first
that
United States
required
Correll's
swears
''believes
of the
on the
convention
Correll
he
President
Convention,
national convention."
cast
as
Donald Trump"
National
Donald Trump
oath
if
other
he
than
the
Virginia
advisory
opinion
(Am.
Compl.
SI 25;
Joint
Stip.
21,
referred Correll,
Abrams
{''Abrams") ,
Winchester.
June
2,
Joint
a
Ex.
7) .
The
Department
of
Elections
the
Commonwealth's Attorney
for
to Marc
the
City of
2016,
Correll
contacted Abrams,
7). On
requesting an advisory
(Joint Ex.
8).
dictates
interpret
words
of
ordinary meaning of
that
as
we
you are
statutory
are
to
a
statute
using
the
language
in
the
the
(Joint Ex.
8). On June 8,
advisory
Chairman
Elections.
contacted
opinion
on
instructed
(Joint
the
the
application
Correll
Stip.
Department
SI
to
24).
of
On
of
Section
contact
the
Elections
same
to
the
545(D);
the
Department
day,
request
Correll
an
of
again
advisory
1,
1) .
11
Hudson,
After
Chief
Correll
brought
Deputy Attorney
suit,
General
Abrams
of
(Joint Stip.
and
Cynthia
Virginia
E.
("Hudson''),
expressed that they would not prosecute Correll for not voting
for
Donald
(ECF
Trump
No.
38)
at
the
C'l
2016
Republican
believe
that
there
General
to
that
prosecute
delegate for
No.
any
25,
Ex.
other
would compel
Mr.
National
. . .
...
Convention.
would
I
be
serious
do not anticipate
Correll
or
any
other
Republican
3)
Republican
delegate
for
their
conduct
Correll or
at
the
2016
Counts
facts
and
II
form
of
the
the
basis
Amended
for
the
claims
Complaint,
and
asserted
provide
in
the
The
statute
at
issue,
Section 545(D),
provides
in
part that:
[t]he State Board shall certify the results
of the presidential primary to the
state
chairman. 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
12
relevant
shall
be
unless
method
deemed
the
for
alternates.
use
If
another
and
elected
by
party has
allocation
the
party
method
alternates,
the
state
party
determined
another
of
delegates
and
for
has
determined
selecting
those
to
delegates
delegates
and
the
for
Va.
Code
545(D)
is
24.2-545(D)
a
Class
(emphasis
added).
misdemeanor
that
Violation
subjects
of
an
Section
offender
to
''confinement in jail for not more than twelve months and a fine
of
not more
20,
15;
than
$2, 500,
Answer,
ECF
24 .2-18.2-11(a);
either or both."
No.
24.2-1017).
24,
SI
15)
(Va.
Compl.,
ECF No.
on
Code
(relying
Section 545(D)
SB 1287
(Am.
Va.
1999).
At
the outset of
relief.
Correll's first theory argued that RNC Rule 38 or in conjunction with RNC Rule 37 -
delegate
to
the
2016
Republican
National
(''that is,
ECF
Convention,
[to vote]
on its own
is
as
free
(Pl.'s Mem.
in Supp.
of
No.
545(D)
5,
is
4)
("Pl.'s
Mem.").
unconstitutional
According
because
13
it
to
Correll,
trenches
on
Section
his
First
(Pl.'s Mem.
2-3,
Preliminary Injunction,
Rule 37 provides,
8-9;
PI. ' s
ECF No.
Reply in Supp.
36,
5-10
of Mtn.
for
(^'Pl.'s Reply")).
RNC
in relevant part:
of
votes
for
each
candidate,
or
for
correctness
of
such
announcement
convention
shall
by
the
the chairman of
direct
the
roll
of
other
recorded
states.
in
The
result
accordance
with
shall
the
then
vote
of
be
the
1, p.
means
rule
or
law
under
which
1,
Correll's
Republican
p.
21).
second
National
theory
argued
Convention
have
that
a
delegates
right
to
to
vote
the
in
(as
14
and that
the
rules
of
Virginia's
the
national
delegates
percentage of votes
March 1,
Republican
vote
Party
proportionally
require
based
upon
that
the
(Pl.'s Mem.
3-4;
Pl.'s Reply 3-
state
in a
convention
primary,
must
be
used
caucuses,
to
or
allocate
and
bind
the
state's
delegation
to
the
national convention in either a proportional
or
winner-take-all
manner,
except
for
delegates and alternate delegates who appear
on
ballot
in
statewide
election
and
are
(Joint
Ex.
1,
requires that,
p.
(emphasis
added).
at the convention,
announced
and
obligation
under
Id.
12)
recorded
these
Rule 16(c)(2)
in
rules,
Next,
RNC Rule
accord
state
with
law,
or
'"the
delegation's
state
party
provides that:
Any
presidential
primary,
caucus,
convention,
or
other
process
to
elect,
select, allocate, or bind delegates to the
national
convention
that
occurs
prior
to
15
16(a)(2)
rule."
(Joint
Ex.
1,
Section
545(D)
p.2)
is
(emphasis
also
added.
According
unconstitutional
because
to
it
Correll,
trenches
on
Before
the
turning
to
jurisdictional
the Intervenors.
opinion
OF LAW
the merits,
challenges
it
is
raised by
necessary
the
to
resolve
Defendants
and by
addresses
the
injunctive relief.
merits
Finally,
of
the
case
and
the
request
this
for
JURISDICTION
List
courts to
V.
'Cases'
Driehaus,
134
quotations omitted);
Intervenors
raise
S.
U.S.
two
and
'Controversies.''' Susan B.
Ct.
Const.,
2334,
Art.
2342
Ill,
case-or-controversy
(2014)
2.
Anthony
(internal
Defendants and
doctrines:
standing
(Tr.
Jul.
7,
2016 32:13-33:16,
16
44:10-53:7).
and
ripeness.
Jurisdictional
issues
must
be
resolved
before
A.
Standing
As explained by the
Supreme Court,
[t]he
these
doctrine of standing
constitutional
gives meaning
limits
to
by
''identify [ing]
those
disputes
which
are
appropriately resolved through the judicial
process."
...
To
establish
Article
III
standing,
a
plaintiff
must
show
(1)
an
''injury in fact," (2) a sufficient "causal
connection
between
the
injury
and
the
conduct
complained
of,"
and
(3)
a
"likel[ihood]"
that
the
injury
"will
be
redressed
by
a
favorable
decision."
...
"^The party invoking federal
jurisdiction
bears the burden of establishing' standing."
Susan
B.
Anthony
List,
134
S.
Ct.
at
2342
(internal
citations
omitted).
1.
In
Injury
typical
sufficient
to
case
satisfy
particularized'
and
hypothetical.'"
Susan
(quoting Lujan v.
see
also,
e.g.
as
revised
formulation
of
Defs.
24,
injury
Article
'actual
Spokeo,
May
alleging
B.
past
III
or
List,
of Wildlife,
v.
2016.
applies
must
imminent,
Anthony
Inc.
injury,
134
504 U.S.
136
However,
in
17
be
the
S.
injury
^concrete
not
Robins,
'Ma]n
conjectural
S.
555,
Ct.
Ct.
at
560
pre-enforcement
or
2341
(1992));
1540
somewhat
and
(2016),
different
context.
Under
this
suffice
there
if
is
approach,
the
'Ma]n
threatened
substantial
allegation
injury
risk
is
that
of
future
certainly
the
harm
injury
impending,
will
occur."
may
or
Id.
One
recurring
issue
in
our
cases
is
determining when the threatened enforcement
of a law creates an Article III injury. When
an individual is subject to such a threat,
an
actual
arrest,
prosecution,
or
other
enforcement action is not a prerequisite to
challenging the law .... Instead, we have
permitted
pre-enforcement
review
under
circumstances
that
enforcement
render
the
threatened
sufficiently
Specifically,
we
imminent.
a
plaintiff
satisfies
the
injury-in-fact
requirement
where he alleges "'an intention to engage in
Id.
is
at
2342
(internal
especially
speech will
be
so
citations omitted)
where
chilled
there
and
is
that
(emphasis
serious
added).
prospect
plaintiff's
that
First
be
the
loser.
Thus,
when
there
is
This
free
Amendment
956
(1984)
721
F.3d
226,
Amendment
satisfied
occurrs
when
235
a
a
Joseph H.
(emphasis added);
(4th
cases,
by
v.
Cir.
the
sufficient
claimant
he
(1)
''has
conduct
(2)
Susan B.
467 U.S.
Futrell,
2013).
Accordingly,
of
chilled
from
is
alleged
an
conduct
is
credible
with
Anthony List,
of
134
commonly
^self-censorship,'
which
exercising h[is]
pre-enforcement
to
engage
right
Ct.
at
course
and
under
2342
suit when
interest,"
statute,"
prosecution"
S.
in
constitutional
''proscribed by
threat
is
First
intention
affected
'Mi]n
element
showing
arguably
that
exists
Inc.,
injury-in-fact
In sum,
Munson Co.,
(3)
that
(internal
of
but
"there
statute.
quotations
omitted).
As
proven
for
the
first
that
he
intends
Amendment-protected
Convention,
circumscribed
and
by
and
to
conduct
that
this
Section
second
engage
at
the
in
First
2016
intended
545(D).
requirements,
(Am.
Correll
and
Fourteenth
Republican
course
Compl.,
of
SISI
has
National
conduct
21,
is
42-55)
ballot or
standing
because RNC
contrary to
law
taught
that
''desires"
Harris,
to
401
it
is
insufficient
engage
in
protected
U.S.
37,
57-59
to
state
activity,
(1971)
that
e.g.,
(Brennan,
J. ,
person
Younger
v.
concurring),
in
engaged
in
List,
question,
that
Mesires
to
Because petitioners'
it
is
interest'")
Bartlett,
("NCRL
stated
future,
same
citations
168
that
intent
conduct
wants
so but
to
to
for
710
similar
...
and
political
constitutional
North
Carolina
(4th Cir.
fear
Anthony
statements'
1999)
these
that
(emphasis added).
commit
vote
distribute
its
B.
concerns
with
omitted);
F.3d 705,
it
and would do
established
or
^affected
criticizing
intended future
(internal
has
the
certainly
to Life V.
the
make
Susan
has
at 2343
materials
E.g.,
plaintiff
Ct.
disseminate
past.
in
to
speech,
whether
conduct
intended
the
of
such
134 S.
it
regardless
Right
("NCRL")
guides
i t would
in
fall
Because Correll
specific
act
that
is
as
whole,
because
the
Court
has
not
certified
class
in
this
action,
and because Correll
has
alleged a
sufficient injury by way of chilling of his individual speech
and associational rights, it is not necessary to reach this
argument.
20
of
subjective
prosecution,"
chill
of
is
also
satisfied
criminal
in
statute,
''credible
this
absent
case.
any
The
other
government activity,
Even
in
the
area
of
First
Amendment
disputes,
the Supreme Court has generally
required a credible threat of prosecution
before a federal court may review a state
statute.
Doe V.
Puling,
782
added)
(relying
on
F.2d 1202,
Laird
v.
1206-07
Tatum^
(4th Cir.
408
U.S.
1,
1986)
13-14
(emphasis
(1972)).
First
Amendment
activities
have
been
from
the
exercise
of
First
Amendment rights.
Cooksey,
Charlotte,
721
F.3d
at
235-36
(relying
on
Benham
v.
City
of
(emphasis added).
that
effect
there
are
''objectively
plaintiff,
official
Susan
several
reasonable'':
B.
threats
factors
Anthony
of
enforcement
may make
past
chilling
enforcement
134
S.Ct.
made
at
2345;
specifically
415 U.S.
452,
against
455-56
(2)
against
(1974); and
(1)
List,
that
Project,
130
134 S.Ct.
S.Ct.
2705,
at 2345;
2717
Holder v.
(2010);
Humanitarian
Steffel,
415
U.S.
at
458-59/^
The
first
and
third
Commonwealth states,
factors
and Correll
are
does
not
not
at
issue
dispute,
here.
that
The
Section
545(D)
other
person.
(ECF
No.
necessitates
examination
creates
type
threat
the
of
ordinary
of
criminal
firmness
prosecutionwere
25,
of
Ex.
2,
whether
individualized,
prosecution
from
the
that
exercise
3).
The
Abrams's
second
letter
directly
by
Correll
particularized
reasonable
would
person
of
his
deter
rights.
caused
to
factor
the
actions
of
In
. . .
of
Steffel,
and has
the
State
Board.")
been
told
by
the
police
that
if
he
again
handbills
at
the
prosecuted." Steffel,
that
those
police
warnings,
together
with
the
arrest
of
Id.
The
Fourth
objectively
Circuit
chilling
has
threat
informal
correspondence
Cooksey,
held
of
law
regulating
purposes.
NCRL,
particularized,
by
may
state
arise
official.
enforcement
issued
NCRL,
that
E.g.,
In NCRL,
it might be subject to a
corporate
expenditures
from
for
the
state
political
director
[literature]
corporate
''informed
would
NCRL
violate
expenditures
that
the
distribution
the
State's
prohibition
political
purpose."
for
do
so
within
but
for
North
political
committee.
that
was
fear
its
fear
Carolina's
To
it
would
definition
determine
well-founded,
23
that
NCRL
this
against
Id.
In
would
of
Id.
of
whether
wrote
to
the
not
State Board of
indicate
that
Elections.
i t would
The State
interpret
did
the
Id.
at
710
official
(emphasis
sent
the
not
that,
enactment,
groups"
initial
Once
[the
the
the
of
stating
statute
has
position
objectively unreasonable.
Elections
that
NCRL's
neither
(1)
twenty-five
Board]
in NCRL's
Board
interpret
''in
the
communication
would
fact
added).
to
cover
years
never
NCRL
since
interpreted
rendered NCRL's
fear
nor
the
it
to
(2)
the
statute's
apply
to
of prosecution
Id. at 710-11.
SISI 20-26) .
(Compl.
511 21-25;
Joint
(Compl.
25-26,
28-29;
Joint
Stip. SISI 20-26).^^ The Board of Elections did not respond (Compl.
SI 26,
28-29;
Joint Stip.
SISI 20-26),
dictates
that
we
are
to
the
the
(Compl.
SI 27,
outright,
violate"
Section
shall
as
the
in
to
for
the
unless
Ex.
1,
that
168
states
vote
on
that
first
reasonable
person
plain,
that
Correll's
read
unambiguous
the
of
and
at
alternates
national
votes
in
delegates
that
the
and
an objectively
letter,
Section
''would
because
the
most
those
finds
Abrams's
text
However,
ballot
releases
the
709.
conduct
''delegates
alternates
with
at
receiving
candidate
would
intended
F.3d
the
candidate
that
4).
Correll's
NCRL,
clearly
bound
convention
25,
NCRL,
statute.
545(D)
be
primary
ECF No.
in
conjunction
545(D),
as
stating
545(D).
Defendants
of
raise
prosecution:
prosecute Correll,
of
criminal
(1)
and
statutes
two
arguments
that
(2)
would
the
relating
Commonwealth
to
has
permit
credible
no
threat
plans
to
long-arm reach
prosecution
of
Correll.
(Tr.
Jul.
ECF No.
1,
25,
Ex.
First,
its
1,
not
ever
state
to
25,
note,
Ex.
that
against
cf.
Holder,
Poe,
history
official
367 U.S.
E.g.,
S.Ct.
at
originally
No.
38)
of
situated
at
497.
38;
C'l
or
any
persons
is
Susan B.
2717;
neither
other
to
party or
they
delegate
ECF No.
(or
38;
for
ECF
non-enforcement)
relevant
to
Anthony List,
Steffel,
415
U.S.
(1)
intended
credible
134 S.Ct.
at
the
believe
not,
state that
18-19;
enforcement
that
has
However,
stated
subject to prosecution,
(ECF
ECF No.
against
and Hudson
(Def.'s Resp.
3).^^ It is true,
130
16-19;
Commonwealth
545(D)
Correll
1,
threat of prosecution.
2345;
Section
prosecute
similarly
the
both Abrams
No.
that
applied
additionally,
intend
Def.'s Resp.
3).
Defendants
knowledge,
delegate;
do
2016 211:23-212:7;
conduct
at
458-59;
where an
would
be
post-litigation disavowal of
that
there
would
be
serious
Court
need
not
decide
whether
unequivocal disavowal.
26
Hudson's
statement
is
an
prosecution.
conveyed
NCRL,
that
168
F.3d
Correll's
at
710.
intended
Because
actions
Abrams's
were
letter
subject
to
renders
Correll's
fear
non-enforcement of Section
of
prosecution
objectively
unreasonable.
Second,
prosecution
Defendants
argue
is
objectively
not
the
crime
occur
that
Correll's
fear
reasonable
(relying on Va.
475,
own
479
(1937)).
criminal
because
the
within
the
Commonwealth,"
and
of
Code 19.2-239;
Farewell v.
Correll
(Def.'s Resp.
Com.,
167 Va.
characterization
of
the
law
and
of
the
harms
they
suggest
Defendants
note
that,
"MiJn
recent
years,
Virginia
courts
"NCRL is
that
NCRL's
left
...
officers
face
no
criminal
State's promise
officers
....
NCRL's
suffer
prosecuted
from
....
be chilled as a
the
And
reasonable
its
fear
that
constitutionally
result." NCRL,
it
can
protected
and
will
speech
be
will
in
Virginia
but
Commonwealth
is
23
....
necessary,
results."
Va.
resulting
In
such
Virginia
Jaynes v.
430,
Com.,
immediate
cases
still
(Def.'s Resp.
App.
in
where
must
17-18)
harm
actual
be
within
physical
the
place
the
presence
where
evil
440
(1996));
276 Va.
443,
452
(2008)
(relying on
(noting
that
criminal
that,
crimes
intent
if
is
Correll
primaries,
Kelso v.
may
also
formed
in
votes
in
be
and do in fact,
Com.,
282 Va.
prosecuted
Virginia).
manner
134,
in
to
Commonwealth's
depriving
''the
financial
and administrative
Commonwealth
of
the
138
(2011)
Virginia
Defendants
contrary
produce
when
also
the
state
Virginia
rendering ''the
investment
consideration
waste,"
for
the
"confidence
undermining
confidence,
and
in
the
integrity
"participatory
cancelling
of
the
electrical
and
destroying
democracy"
out
"more
than
million
of
the
United
States
v.
La
received
the
Virginia.
harm
most
votes
Defendants'
they
assert
Commonwealth
performed
their
primary)
briefs
prosecute
outside
the
will
be
felt
in
in
may
in
the
acknowledges
breaches
Commonwealth
of
when
that:
(1)
Virginia
the
harm
the
statutes
is
felt
in
Virginia; and (2) breach of Section 545(D) will create harm felt
in Virginia. Accordingly,
Virginia
law,
Correll
by Defendants'
could
be
own characterization of
prosecuted,
which
supports
the
Virginia's
may
or
may
jurisdiction
or
not
be
about
correct
whether
about
the
convention
reach
of
voting
in
However,
fact
augurs
that
objectively
in
Ohio
Defendants
made
reasonable
people
prosecutable
reasonably
would
in
such
an
would
consider
Correll's
Virginia's
criminal
courts,
consider
the
threat
argument
of
the
that
conduct
and
prosecution
thus
to
be
credible.
Two
to
additional
believe
state
would
finding
is
that
points
voting
subject
also
contrary
Correll
consistent
make
with
to
to
it
objectively
Section
545(D)
prosecution.
Abrams's
note
No.
would
be
25,
Ex.
1,
4).
unreasonable
to
Second,
assume
29
as
referring
the
Correll
General
in
First,
reasonable
another
such
Correll
(Compl.
points
out,
Assembly
a
to
SI 27,
'Mi]t
adopted
[the
statute]
Reply 19)
without
694 n.4
it
be
enforced."
requirements
Correll
has
for pre-enforcement
and neither
(Pl.'s
Inc. v. Virginia,
conclusion,
context,
that
In
intending
shown
standing
Defendants
nor
the
in a
Intervenors
three
basic
First Amendment
have
dislodged
To
establish
sufficient
complained
causal
of"
redressed by
S. Ct. at 2342
standing,
plaintiff must
connection between
and
''a
[likelihood]
favorable
decision."
the
also
establish
that
the
Susan
B.
injury
''a
conduct
will
be
Anthony List,
134
which
Correll
the RPV s
selected
(Def.'s
but,
bound
instead either:
himself
choice to hold a
candidates
Resp.
rather
23-24).
On
by
way
of
(1)
the
Declaration;
than
this
directly
basis.
selecting
Defendants
delegates.
argue
that
own
choices
(2)
Section 545(D)
Correll's
or
to
or
the
choices
of
the
30
RPV
that
rather,
caused
the
Present
Section
Conflict
545 (D) ,
is
and
between
the
RNC
the
has
RNC
not
Rules
and
Voluntarily
Defendants
Alcorn,
820
F.3d
alleged
cite
24th
624
(4th Cir.
(4th Cir.
injury
is
Senatorial
1997)
caused
Dist.
v.
Meadows,
where an
and Marshall
Comm.
v.
by
2016)
Republican
party's
voluntary
choice,
the
ruling
Defendants'
party
against
as
proportional
in
delegates;
party
vote
RPV
to
primary;
which
and
chooses
for
Commonwealth.
argument goes:
such
contest
the
to
(2)
would
candidates,
between
RPV
Section
hold
choose
voters
(3)
(1)
(Def.'s
chose
vote
545(D)
a
to
for
20).
winner-take-all
hold
applies
contest
As
permits a state
and
proportional
candidates,
only
state-funded
Resp.
rather
when
in
the
which
such that
than
state
voters
(4)
RPV s
(Def.'s Resp.
delegates
contest,
20-24).
rather
In other words:
than
candidates,
or
chose
winner-take-all
Defendants'
this
and a
case
reliance
involves
state
statute
on
Alcorn
and
conflict between
arising
Marshall
the
national
from an action
31
neglects
of
the
that
party rules
state party
acting
in
conformance
with
national
action
of
state
party.
rule,
not
conflict
dealt
with
some
action
party)
a
which
subjected
to a state statute,
conflict
Alcorn,
820
the
F.3d
627-28,
party
(or
sub-unit
party
rules
630-33;
and
the
Marshall,
state
105
were
the
statutes.
F.3d at
905.
of
between
at
the
obliged
to
live
with
the
constricting
allegedly
in
affirmative
545(D).
however,
conflict
and
The RNC
the RNC -
with
voluntary
Section
act
that
545(D)
would
has
submit
engaged
it
to
in
no
Section
rules to state
attempts
carries out
and
very
which
is
to
circumscribe
its business.
live
not
conflict
manner
between
attributable
the
to
RNC
the
Rule
entity
in
there
16
and
whose
which
is a
the
very real
Section
rules
RNC
545 (D)
would
be
32
subjugated
to
the
state
statute
if
that
state
statute
were
enforced.
Moreover,
that
would
Alcorn
allow
the
and Marshall
Commonwealth
cannot
to
be
read
encumber
in
choice
manner
that
is
party^^
the
conduct
unconstitutional
of
its
condition,
convention
even
if
that
with
St.
Johns
River
(2013)
("the
government
because
he
exercises
principle,
the
government
explored more
requirement
ballot
at
from
fully
the
to
unconstitutional
voting).
See
Dist.,
not
deny
constitutional
133
S.
e.g.,
Ct.
benefit
right
enumerated
coercing people
in
the
delegates
merits
vote
convention
...
only
Koontz
2586,
to
an
accomplish
limitation
Commonwealth
discussion.
2594
person
overarching
cannot
the
(by
them up.").
on
First
545(D)'s
the
first
Amendment.
attachment
of
voting)
(regulate
Part
II.A.
33
an
that
convention
infra
As
convention
directly
...
preventing
Section
if accepted,
dictate
do
by
winner-take-all
indirectly
to
rights
into giving
violates
no-causation argument,
Commonwealth
the
may
Constitution's
that
Defendants'
which
Mgmt.
See,
is
vindicates
the
Water
patently
condition
b.
Correll's
Contractual
Source of his Injury
Obligations
are
Not
the
Section
545(D),
created by the
one
claim
assumes
that
from
Declaration -
primary results.
To begin,
but
his
contractual
to be
obligation
bound by the
proportional
his
claim
because
the
the March 1,
argument
That is
proportionally -
Correll's conscience.
Moreover,
antithetical
voting.
with
RNC
to
Rule
In other words.
RNC
Rule
16.
most
in the
Virginia
proportionally.
and
associate
1,
requiring
545(D),
Section
vote
2016 225:5-6).
for
requiring
545(D)
545(D)
proportional
is
the
Donald Trump.
Republican
delegates
obvious
accordance
chill
with
his
who
Rule
split
to Correll's
34
that
candidate
party's
voting,
is
winner-take-all
directly
requires
primary:
The
in
16,
Section
delegates
votes
Jul.
Section
Republican
the
(Tr.
16
in conflict
all
Virginia
received
requires
their
the
that
votes
ability to speak
convention
rules
As
to
conflict
with
interprets
the
to
Section
RNC
them,
and
37
RNC
and
Rule
Rule
Commonwealth's
16's
38,
at
joint
least
causation
potential
as
argument
Correll
neglects
circumscribe
chilling
Rules
the
significant
circumscribe
545 (D)
behavior
and
behavior,
effect.
state
criminal
particularly
First,
the
as
coercive
laws
these
power
which
seek
to
to
relate
of
the
seek
state
is
See
e.g.,
Engel
(recognizing that
the
government"
create
may
v.
''power,
an
Vitale,
370
qualitatively
incarceration
significantly
effectuated
407
U.S.
different
"'indirect
private
32-33
tool
command
greater
by
25,
to
source
coercive
Second,
430
the
of
criminal
(extending
pressure"
to
punishment
than
Argersinger
Sixth
support of
making
compulsion
E.g.,
(1962)
adherence,
contract.
(1972)
421,
U.S.
laws
could
be
v.
Amendment
of
Hamlin,
right
to
plaintiff's
and
criminal
criminal
statute
actionable,
E.g.,
chill.
Cooksey,
conduct
statute,
does
is
the
not
proscribed
Court
exert
cannot
an
both
by
civil
conclude
that
additional,
and
721
F.
3d at 226
35
he
risks
only
civil
consequences
the
same
conduct
incarceration.
additional
To
when
the
chilling
effect,
such
as
an
exile
from
future
he
extent
risks
that
the
criminal
this
Court
Court
can
prosecution
can
foreclose
provide
and
that
remedy
to
Correll's injury.
In
this
case,
the
Court
considers
Section
545(D)
to
be
consequences
Declaration.
enjoining
has
associated
with
enforcement
standing
to
of
Section
challenge
RNC
the
cause
545(D).
Section
Rule
In
545(D)
16
and
of that
this
the
RPV
injury by
case,
Correll
notwithstanding
any
but
forcefully,
conduct.
forbids
Moreover,
Defendants'
as
the
here,
only
him
to
engage
in
intended
to
be
adjudicated
his
less
is
the
conflict
Defendants
and
Intervenors
challenge
Correll's
standing on the ground that he cannot speak for the RNC or RPV.
(Def.'s
Resp.
25-26;
Intervenors'
36
Resp.,
ECF
No.
25,
12-14).
There
are
Correll
two
asserts
delegate.
depth
significant
(Am.
in
Compl.
the
the merits,
rights
later
the
related to
the
such that a
problems
at
least
SISI 45,
Second,
section assessing
argument.
as
an
First,
individual
as discussed in more
likelihood
of
rights
success
of a
rights
of
477,
478-79
(1975)
associational
Nat^l Party,
Cousins v.
(permitting
plaintiff
and
that
rights
interference
E.g.,
with
noting
its members,
its
''adherents") ;
841-42
Wiqoda,
delegates
interference
Bachur
(4th Cir.
on
party are
B.
this
partially
52).
fact,
is
with
419 U.S.
to
with
v.
in
assert
a
party
Democratic
1987).
Ripeness
'"A
claim
contingent
is
future
296,
300
courts
ripe
events
occur at
(1998)
consider
not
that
adjudication
may
not
all." Texas
(internal
the
for
v.
citations
''prudential
occur
if
as
it
rests
anticipated,
United States,
omitted).
ripeness"
or
523 U.S.
Traditionally,
factors
upon
(2)
of:
"(1)
the
the hardship
721
F.3d
the
at
240
(quoting
Nat^ 1
Park
37
Hosp.
Ass^n
v.
Dep^t
of
Interior,
List,
538 U.S.
808
fitness
credible
assessing
and
pre-enforcement
hardship
threat
Susan B.
F.3d at 240
of
are
sometimes
prosecution
Anthony List,
Anthony
Doe,
134
First
established upon
during
S.
Amendment
Ct.
the
at
standing
2347;
claims,
finding
inquiry.
Cooksey,
721
that
(2003));
When
E.g.,
803,
seeking
(standing)
(ripeness)
court's
....
(''Plaintiff's
is directly limited by
Both doctrines require
intervention
face
some
actual
or
In Susan
Additionally,
ripeness considerations are relaxed in First
Amendment cases because chilling may result in irreparable loss.
Cooksey,
721 F.2d at 240
(relying on New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995).
38
principle that
to
hear
recent
and
reaffirmation
federal
decide
court's
cases
of
the
obligation
within
its
between
refraining
from
core
political
speech
on
the
one
hand,
or
engaging in that speech and risking costly
Commission
proceedings
and
criminal
prosecution on the other.
Susan
B.
Cooksey,
Anthony
the
List,
risking
S.
Ct.
at
of prosecution existed,
''significant
134
the
impediment"
criminal
adjudicate his
2347.
where a
plaintiff would
of
adjusting
if
court
the
constitutional claims.
hardship
his
did
Cooksey,
in
credible threat
face
either
prosecution)
Similarly,
721
conduct
not
(the
or
promptly
F.3d at
240-
41.
As
Rule
and
16,
respects
fitness
Cooksey,
credible
the
between
clearly
threat
conflict
of
established
prosecution.
As
39
Section
as
in Susan
by
the
to
545(D)
B.
earlier
fitness,
the
and
RNC
Anthony List
finding
text
of
of
RNC
Rule
16
(requiring
that
Virginia's
held a
delegation
primary prior
vote
to March
(requiring that
meanings
respective
of
the
faces,
rule
and
presently in force.
with a
credible
and
both
As
the
statute
the
rule
to hardship,
threat
are
and
Correll,
of prosecution,
must
clear
the
on
their
statute
are
his
conduct
or risk prosecution.
2.
The
Conflict
Between
Section
545 (D)
and
RNC
Rules
As
respects
the
however,
or
38
for
36:2-39:7;
existed
in
Convention
56:8),
between
Section
545(D)
and
RNC
immediate resolution:
37
conflict
the
2016
National
135:8-136:2).
various
since
Although
guises
1880
at
(Pl.'s
no effect,
RNC Rules
nearly
Reply
42 presently have
Convention.
is
Tr.
that
and that,
(Tr.
Jul.
7 2016 36:2-39:7,
40
Jul.
and
7,
2016
38
may have
Republican
National
Jul.
RNC Rules
if they are
37
every
5-10;
(Tr.
2016
54:3-
26 through
not
adopted
135:8-136:2).
V.
Sierra Club,
that
case,
and
Resource
the
logging was
challenge
Supreme Court
523 U.S.
Supreme Court
Management
not
the
because,
objected might
various hoops,
726
the
the
which
final
Forest
Forest
Service
contemplated
decision
logging
Forestry Ass'n,
is instructive here.
Held that
of
before
occur,
(1998)
Plan"
sort
in Ohio
to
that
which
Service
had
''Land
increased
was
the
to
In
ripe
for
plaintiffs
jump
through
final
decision which
Id.
at
734.
Although
the
existence
of
the
Plan
at
the
time
of
someday occur,
at
730.
possible
modify
that
the
obviated
Until
that
the
Forest
expected
the
final
Service
methods
plaintiffs'
Service
analogy
Plan
controlling
statute
37
and
was
is
statutes,
allegedly at
38.
But
not
an
there
of
"revise
implementation"
perfect
rendering
at
one,
action
731,
odds
with
is
common
occurred,
it
the
in
was
Plan
way
review
at
or
that
the
Id. at 736.
agency
id.
action
might
grievances,
agency
that
allegedly
while
allegedly
41
in
the
at
Section
odds
545(D)
controlling
characteristic
Forest
that
with
is
RNC Rules
makes
both
disputes
unfit
conflict
is
Forest
have
not
Service
any
for
judicial
yet
finalized.
Plan,
force
review:
RNC
one
Rules
sketch
out
they
are
formally
until
course
side
37
and
of
the
alleged
38,
action
adopted
of
like
but
at
the
do
the
not
2016
{Tr.
Jul.
7,
2016
same manner
likely than
that
that
if the
RNC Rules
37
the
Plan's
existence made
38
will
exist
it
final
is
be modified or
in
action more
still
deleted
possible
in
way
On this basis,
and Cooksey:
Anthony List
Section 545(D)
2016
Republican
teaches that,
terms
the
Ohio
conflict is
conflict
is
Forestry
Ass'n
so uncertain in its
not
fit
for
judicial
over
any
alleged
and
38,
Because
conflict
Convention.
and enforceability,
decision,
Court
rules
They are
the
between
makes
no
Court
Section
finding
lacks
jurisdiction
545(D)
about
and
the
42
RNC
Rules
37
constitutionality
of
the
Section
545(D)
controversy
Correll's
restraints,
claims
in
the
Counts
In light of case-or-
Court
will
proceed
and
only
on
II
the
to
basis
assess
of
an
II.
A.
The Conflict between Section 545(D) and RNC Rule 16 Creates
Unconstitutional
Harms
to
Correll,
such
that
Declaratory
Judgment is Appropriate
The Supreme Court has long held that ''political belief and
association constitute the core of those activities protected by
the
First Amendment."
That
principle
First
and
nominating
United
applies
Amendment
parties
rights
their
candidates
States.
Elrod v.
with
of
Burns,
particular
speech
members,
for
Cousins,
and
U.S.
U.S.
347,
force
to
association
especially
President
419
427
and
in
356
protect
of
the
487.
Thus,
be
any
doubt
as
process
the
can
freedom
to
no
longer
associate
with
others
for
that
the
43
the
political
Vice-President
at
(1976).
of
of
the
Supreme
Cousins,
419
U.S.
at
477
(citing
Kusper
v.
Pontikes,
414
U.S.
impairment
'Mi]t
of
is
First
(1976);
type
the
of
NAACP v.
exercise
direct
at
65.
"cannot be
of
Thus,
but
the
an
state
414
''must
be
U.S.
on
an
right
Rather,
one
of
64-
'^This
effect
not
of
on
through
unintended
conduct[.]"
the
1,
(1958)).
arises,
as
exacting
424 U.S.
460-61
mere showing of a
paramount,
significant
if any deterrent
indirectly
at 58.
survive
Valeo,
rights
encroachment
that
must
449,
government's
justified upon a
interest." Kusper,
by the
Amendment
action,
result
357 U.S.
necessary even
First
government
inevitable
U.S.
of
rights
(citing Buckley v.
Alabama,
scrutiny is
established
Amendment
firmly
but
Buckley,
424
association
legitimate state
vital
importance,
and
and
the
means
chosen
to
effect
contend
that
interest must
be
Defendants
that
the
Court
these
should
First Amendment
apply
the
less
is
true
applied to a
law
context,
that
the
variety of
and
that
Anderson/Burdick
challenges
to
framework
has
state
been
where,
as here,
the Commonwealth
compelling
state
(citing Cousins,
interest.
419 U.S.
La
Follette,
450
U.S.
at
124
357 U.S.
at
463) .
The
foregoing
contention
rights
of
that
speech
principles
Section
and
contravention of the
guide
545(D)
association
the
analysis
offends
by
his
requiring
of
Correll's
First
Amendment
him
to
vote
in
RNC Rules.
However,
the
animating
principle
behind
decisions
applying
that
framework, which is ""that States may, and inevitably must, enact
reasonable regulations of parties, elections,
and ballots to
reduce election- and campaign-related disorder," does not apply
here. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358
(1997) . In this case, the statute at issue purports to regulate
delegates' behavior at a party's national convention, which is
neither an election nor a campaign and in which states have, at
best,
minimal
interest.
See
Cousins,
419
U.S.
at
489.
1.
The burden
in
this
criminal prosecution
First Amendment
accord
with
under
rights
the
case
is
that
Section
Correll
545(D)
faces
if
he
threat
exercises
his
RNC Rules
and
RPV s
Rule
16(f)
(Am.
Filing
Compl.
of
at
in
the
SISl 22-23.)
Filing,
requires
that
all
states
that
Rule 17(a)
(Joint
Ex.
1,
Rule
the
alternate
number
from that
of
state
Ex.
candidates
primary."
Section
p.
12;
Joint
Ex.
3) .
Moreover,
RNC
party violates
allocate
presidential
Convention.
(Joint
held
1,
the
No.
shall
p.
delegates
each be
15).
remaining
''who
16(c)(2),
In
(Joint Ex.
545(D)
to
number
the
reduced by
that
delegates'
received more
the
than
event,
votes
10%
of
of
delegates
national
fifty
the
convention
percent
(50%)."
Convention
proportionally
the
votes
and
cast
in
will
among
such
1, p. 15).
requires
that,
where
the
party
holds
who
first ballot.
received
the
most
In other words.
take-all''
result
that
16(c)(2),
thereby
votes
in
Section 545(D)
is
squarely
subjecting
the
at
primary
mandates a
odds
Virginia
the
on
''winner-
with
RNC
delegation
Rule
to
the
voting
his
17,
of
the
pursuant
RPV s
16(f)
criminal
accordance
party
to
party's
Filing,
and the
prosecution under
with
rules
the
and
statute,
facing
requirements
Declaration)
Section
but
the
risk
545(D);
(1)
(RNC Rules
16 and
but
facing
or
(2)
risk
voting
violating
his
pledge
of
his
opportunity
losing
and
in
the
to
Court
precedent
Section 545(D)
Amendment
rights.
To
clearly
creates a
First
of
the
freedom
interference
with
the
freedom
U.S.
is
with
354
these
it
interference
Hampshire,
given
begin,
234,
of
250
its
teaches
that,
well-settled
party
is
That
"[a]ny
simultaneously
adherents."
(1957).
that
Sweezy
premise
v.
an
New
follows
47
necessarily from the basic fact that a political party does not
per Sweezy,
its adherents]
that
represents
will
its
in
v.
Lopez
citations
omitted);
Jones,
530
U.S.
Cnty.
Democratic
(''Unsurprisingly,
the
view
see
567,
the
standard
bearer
552
also
575
Cent.
reserves
who
by
nominee
York
196,
202
(citing
489
best
("the
right
Dean,
State
best
Bd.
(2008)
of
(internal
Democratic
Party
Eu
Francisco
U.S.
v.
San
214,
political
528
the
F.
to associate
political
who
224
v.
(1989))
special place
represents
(N.D.
national
for,
which
v.
proposed
New
California
Comm.,
Nelson
with
the
process
2007)
U.S.
(2000)
preferences.'");
Fla.
produce
platform.''
Torres,
First Amendment
accords,
its
political
Elections
[and,
process
political party
party
party's
Supp.
ideology
2d
(or not
convention
^selects
1271,
and
1280
to associate)
delegates
is
very
right
National Convention,
to
select
presidential
nominee
at
the
near
the
words,
First Amendment
association
right's
core.'').
In other
its leaders."
489 U.S.
at
229.
Accordingly,
''a
political
party
may
ordinarily
decide
for
the
party
ordinarily
need
not
comply
with
528 F.
1277;
124
see
also La
Follette,
450
U.S.
at
state
laws
Supp.
(^'A
2d at
political
State's
protected
delegation
by
(''Delegates
the
to
the
party's
Constitution.");
perform
task
of
national
Cousins,
supreme
convention
419
U.S.
importance
at
to
is
489
every
decisions
parties
and
context
of
their
the
Vice-President
themselves
task
of
the
adherents
no
the
selection
allowing
individual
are
and
First Amendment
particularly
selection
States
of
of
419
Presidential
U.S.
state
conducted
at
to
without
49
the
489.
They
for
in
the
President
and
"[t]he
role
and
rights
strong
because
constitutionally mandated
Cousins,
conventions
are
United
candidates."
an
teach that
nomination
of
have
also
in
States
the
great
Vice-Presidential
also
teach
impose
restrictions
respect
for
party
that
on
policy
how
is
the most
important
duty of all
voting
for
candidates
and
participate
member
450
to
in a
or otherwise
U.S.
here,
at
declaring
110-11.
Wisconsin
a voter could
registering
party preference.
law,
like
the
as
La
in
accordance
ballot.
Id.
at
however,
provided
allegiance
112.
to
Id.
the
original
national
at
in
and
the
primary
National
only voters
Democratic
that
109-110.
action
party
The
that
primaries or caucuses
process.
with
statute
Democratic
who
were part
could
of
the
on
Wisconsin
Democratic
Supreme
National
issue
the
Party's
publicly
Party
at
convention
first
rules,
declared
their
participate
delegate
the
the
results
party
Follette,
vote
Court
selection
brought
against
Committee
113.
judgment
convention
though
Id.
it
The
in
Wisconsin
the
was
Supreme
state's
required
to
favor
seat
Court
and
the
entered
held
that
Wisconsin
the
Id.
declaratory
the
national
delegation
an
asserting
at
in
even
rules.
thus
could
interest.
Id.
Other
at
overridden
both
have
reached
409
U.S.
the
delegation
selected
law);
party's
Bachur,
State
(noting
party's
similar
in
convention
567
Austin,
statute
not
rules);
compelling
state
results.
winner-take-all
F.2d
837
rule
Comm.,
First
at
719
See,
and
the
e.g.,
Courts
of
O'Brien
v.
of Appeals'
to
primary
California
as
(rejecting
mandated
by
challenge
to
delegates);
F.2d
1072
right
injunction
seat
for
Amendment
process
and
(11th
to
reversing,
Wymbs
Cir.
control
on
its
v.
1983)
own
justiciability
Ferency v.
could
Court
convention
state
on
(staying Court
836
Exec.
selection
grounds,
based
Supreme
allocation
Republican
delegate
the
Democratic
gender
in
(1972)
requiring
state
only
120-22.
cases,
Appeals,
Brown,
be
in
be
Ripon
(D.C.
Cir.
one-Republican-one-vote principle);
requiring
selection
accordance
enforced
Soc'y,
1975)
(6th Cir.
with
to
the
Inc.
v.
of
the
delegates
results
extent
Nat'l
1981)
that
it
Republican
51
of
(holding that a
to
the
an
open
national
primary
contravened party
Party,
525
F.2d
Decisional law,
therefore,
Correll
has
agreed
to
abide)
unless
First Amendment
the
Commonwealth
compelling
state
rights.
to
participate as
Section 545(D)
and,
threatens
demonstrates
interest
which
opportunity to
and
(by
that
in
the
doing
cannot survive
statute
so,
serves
is
narrowly
in
ensuring
tailored.
2.
Here,
that,
the
where
Commonwealth
political
election,
thereby
state
local
and
statewide
candidate,
funds
[sic]
party
and
and
the
this
will
interest
state-funded
expenditure
administrative
by
voters
''an
selects
necessitating
election,
Virginia's
claims
effort
choice
determine
of
to
significant
coordinate
intimates
the
that
state
primary
(Def.'s Resp.
the
party's
does not
28).
arguments.
justification
proffered
by
In
Cousins,
substantively
Defendants
here:
the
respondents
proffered
indistinguishable
that
52
the
State
has
from
that
compelling
and
the
right
of
its
citizens
under
the
State
and
419 U.S.
Federal
at
489.
interest
constitutes
compelling
The
Convention
is
candidates
for
Vice
vital
the
the
President
of
of
offices
the
States themselves
mandated
role
in
selection
business
nomination
of
United
have
the
of
the
Party's
President
States
. . .
and
The
no constitutionally
great
task of
the
Presidential
Presidential
of
the
and
Vice-
If
the
candidates.
Party Convention as a
engaged in the vital
Presidential
candidates
concerted enterprise
process of choosing
and
...
The
Vice-Presidential
Convention
serves
the
national
interest
interest
Id.
at
489-91
Celebrezze,
important
of
an
interest
780,
in
greater
individual
(footnotes
460 U.S.
is
(1983)
regulating
53
any
State.
omitted);
794-95
than
see
also
Anderson
Presidential
elections
v.
less
than
statewide or local
elections,
will
determined
be
largely
by
voters
beyond
former
the
State's
Follette
further
boundaries.
The
Supreme
Court's
holding
in
La
case,
the
Supreme
Convention
was
delegation,
cast
in
free
thereby
failed
acknowledging
elections,"
interest
the
in
Convention.
La
Jones,
U.S.
was
on
the
the
interest
sufficiently
at
in
fair
450
583
compelling
"the
to
no
at
of
124,
the
to
an
primary
primary
State's
can
the
justify
National
n.28;
see
contention
right
justify
124
also
that
effective
blanket
vote
Although
single
elections
workings
U.S.
rules.
"regulating
that
entire
primary
Wisconsin's
in
primary
(rejecting
ensuring
every
party
held
National
Wisconsin's
that
interests
internal
Follette,
Democratic
seat
with
Court
and
to
ground
State's
the
meaningless
comply
orderly
into
that
refuse
Supreme
imposition
530
to
to
the
held
rendering
Wisconsin,
process
state's
Court
In that
the
vote"
primary
for
sum,
political
is
party's
entirely
Resp.
28)
where
free
even
administrative
the
State
internal
to
governance
"cancel
though
resources
the
in
attempts
out
state
a
and
interfere
operation,
with
party
(Def.
State's]
effort"
has
expanded
financial
E.g.,
La
the
[the
primary.
54
to
Follette,
and
120-
22.
Furthermore,
the
conclusion
primary
votes
complete
cannot
control
State's
justify
over
the
Vice-Presidential
nominees,
state
fractional
has
includes
but
allocation
Defendants
have
of
not
interest
in
burdening
giving
the
of
its
in
which
stake
delegates
demonstrated
in
and
right
to
Presidential
each
process
voting
that
to
party's
selection
process
effect
individual
whose
rules.
Section
and
essence
Therefore,
545(D)
serves
3. Narrow Tailoring
Because
advances
address
it
Defendants
have
compelling
whether
the
not
state
statute
demonstrated
interest,
is
it
narrowly
that
is
Section
not
545(D)
necessary
tailored.
to
Nonetheless,
that
For the
foregoing
Section
545(D)
Amendment
rights
association.
is
of
Therefore,
reasons,
an
Correll
is
entitled to
unconstitutional
free
the
political
Court
so
burden
speech
declares
on
judgment
his
and
and
First
political
will
enter
As
previously
explained,
neither
Count
IV
nor
Count
V is
an
B.
The Conflict Between Section 545(D) and RNC Rule 16 Creates
Unconstitutional
Harms
to
Correll,
such
that
a
Permanent
Injunction is Equitable
In
establishing
entitlement
to
permanent
injunction,
(1)
that
it
has
suffered an
irreparable
injury; (2) that remedies available at law,
such as monetary damages, are inadequate to
compensate
for
that
injury;
(3)
that,
considering the balance of hardships between
the plaintiff and defendant,
a remedy in
equity is warranted; and (4) that the public
interest
would
not
be
disserved
by
a
permanent injunction.
eBay
Inc.
v.
MercExchange,
L.L.C.,
547
U.S.
388,
391
(2006).
1. Irreparable Injury
It
rights,
is
well
for
constitutes
also
established
even
minimal
irreparable
Johnson
("[v]iolations
v.
First
periods
586
for
the
Night Club v.
Miller,
loss
of
loss
of
F.2d
of
First
time,
Elrod,
Amendment
"[t]he
injury."
Bergland,
of
that
427
993,
rights
unquestionably
U.S.
995
Amendment
at
(4th
353;
Cir.
constitute
see
1978)
per
se
302
freedoms."
(4th Cir.
2011)
not
be
entered
on
either
Count
IV
or
Count
V.
declaratory relief will be entered on Counts I and II.
Legend
(citing
Instead,
The issue
Joelner
v.
Vill.
Of
Wash.
Park,
378
F.3d
613,
620
(7th
Cir.
2004)) .
and II,
nor
Intervenors
should follow
those
have
suggested
i f Correll
that
(as
he
succeeded
i t necessarily
Neither Defendants
different
has)
on
conclusion
the merits
of
claims.
2.
Where
rights,
and
the
threat
to
state
statute
enforce
inhibits
that
constitutional
statute
constitutes
"'a
continuing
plaintiff
as
practical,
Terrace
rights);
to
F.
loss
Supp.
end
he
or
Thompson,
has
of
''no
remedy
adequate
263
U.S.
statute's
F.3d at 620)
the
which
efficient
v.
injunction
to
as
the
197,
ongoing
at
law
which
remedy
215
(1923)
inhibition
in
of
is
as
equity."
(upholding
due
process
(citing Joelner,
378
2d 855,
866
(S.D.
freedoms");
Ohio 2010)
Brinkman v.
Budish,
692
of
First
Amendment
rights.").
57
The
absence
of
effective
3.
The
Correll.
permitted
Balance of Equities
balance
of
equities
also
weighs
heavily
in
favor
of
to
vote
in
accordance
with
the
RNC
Rules.
Indeed,
this
bound
case,
so
pursuant
Rules
and
results
to
the
in
long
as
the
delegates
National
RPV s
the
the
Republican
decision,
Commonwealth
are
no
evil
...
[T]he
(Def.'s
Resp.
18)
(emphasis
added).
And,
in
any
event.
that
prevents
restrictions."
the
state
from
Legend
Night
Club,
enforcing
637
F.3d
unconstitutional
at
302-03
(citing
4.
The
final
Public I n t e r e s t
prerequisite
to the
grant
of
an
injunction
is
that the injunction does not disserve the public interest. The
Fourth
Circuit
has
repeatedly
58
held
that
''upholding
constitutional
rights
rel.
Newson v.
Albemarle Cnty.
Cir.
2003);
(1960)
see
("there
also
is
serves
United
the
the
public
Sch.
Bd,,
States
highest
v.
interest."
354
F.3d 249,
Raines,
public
362
in
F.3d
F.3d
507,
521
at
303;
(4th
Giovani
Cir.
Carandola,
2002).
Ltd.
Therefore,
ex
(4th
11,
the
21
due
including those
261
U.S.
interest
Club,
Newsom
Legend Night
V.
this
Bason,
factor
303
also
III.
Defendants
claims
and
his
and
Intervenors
prayer
for
laches."
(Def.'s Answer,
ECF
41,
No.
SI
71) .
both
assert
injunctive
relief
ECF No.
"Laches
24,
is
SI 71;
an
that
are
Correll's
''barred
Intervenors'
equitable
by
Answer,
doctrine
that
945,
950
(E.D.
2012)
The
willful
failure
Va.
2012),
doctrine
to
aff'd,
''penalizes
assert
his
471
a
Judd,
F.
84 0 F.
App'x
litigant
rights."
for
at
Supp.
219
2d
(4th Cir.
negligent
953.
or
"Equity
decisions
concerning
time
sensitive
public
. . .
laches."
In
Fed.
R.
Civ.
P.
"laches."
59
8(a),
the
defense
is
simply
projects
Orchard
Cir.
do
so
Valley
1989));
Va.
1996)
with
haste
Citizens
Ass'n
Marshall v.
("The
and
dispatch.''
v.
Hodel,
Meadows,
Fourth Circuit
921
is
Id.
872
F.
(quoting
F.2d
Supp.
75,
1490,
Quince
80
1494
especially mindful
of
(4th
(E.D.
laches
and,
by
(2)
Marcellus
at *6
requires
v.
Va.
proof
the
State
Sept.
has
proof
9,
whom
Bd.
of
the
Cir.
1990),
cert.
(1)
defense
asserting
Elections,
the
first
plaintiff
is
2015
lack
of
asserted;
the
defense.''
WL
denied,
element
delayed
elements:
5285819,
that
''the
two
party
2015)
held
that
of
against
to
Virginia
Circuit
requires
party
prejudice
(E.D.
Fourth
the
the
Daniel,
501
U.S.
of
laches
inexcusably
or
102
1260
(1991).
"An
action."
Perry,
840
F.
Supp.
the
part
of
the
2d
at
953.
The
second
element,
defendant
in
asserting
or
establishing
the
Tobacco
958
defendant
Workers
(4th
Cir.
must
be
Int'l
Union
1971) .
"The
result
v.
the
Lorillard
greater
60
the
Prejudice
plaintiff's
Corp.,
448
delay,
the
delay.
F.2d
less
949,
the
prejudice
954.
required
Defendants
requirement,
show
and
laches.''
Intervenors
Perry^
have
840
F.
Supp.
established
2d
the
at
delay
First,
Correll's
Virginia's
Correll,
to
primary
knowing
delay
in
election
the
filing
took
results
suit
place
of
the
was
on
unjustified.
March
primary,
1,
ran
2016.
for
the
2016.
Correll
2016,
leaving
less
than
one
Convention
delegate
and
to
to file
month
before
allowing
over
elapse
suit until
the
June 24,
2016
Republican
two-thirds
without
of
prosecuting
his
National
tenure
his
as
time-sensitive
claims.
Correll
sought
to
Attorney
contends
resolve
and
the
that
his
delay
must
''live
excusable
of
Elections.
delay because,
is
the
because
he
Commonwealth's
(Pl.'s
Reply
23-24).
with
the
consequences."
Marshall,
921
F.
Supp.
at
1494.
Correll
action
also
before
May
asserts
25,
that
2016,
he
could
which
was
not
"the
have
date
brought
that
this
Trump
victory,"
because
"any vote
that
Correll
cast
for
inconsistent
conflict between
basis
of
whether
will
Section
Correll's
Correll became a
of
with
not
the
be
Correll's
545(D)
alleged
theory
and the
injury,
That argument is
of
RNC
the
Rules,
existed
on
case.
which
the
The
is
date
the
that
ballot
at
''conclusive."
the
National
Therefore,
Convention
Correll
has
will
failed
or
to
second element
suffered prejudice
Defendants
claim
administrative
that
would
the
investment
and
laches
result
that
they
prejudice"
allow
primary vote
render
as
of
all
waste
will
their
and
conscience,'
financial
the
have
''financial
requesting
delegates
deprive
Defendants
unjustified delay.
suffer
''[b]y
Republican
^vote
that
of Correll's
because,
Commonwealth's
requires
to
and
remedy
disregard
Plaintiff
and
seeks
the
to
administrative
Commonwealth
of
the
holding
the
primary."
(Def's
Resp.
12-13).
Defendants
assert
interest
in
process[.]'"
202-03).
ensuring
the
(Def.'s Resp.
Defendants
also
fairness
13)
the
party's
(citing Lopez-Torres,
contend
of
that
Correll's
specifically,
62
nominating
552 U.S.
delay
at
"causes
million
Virginia
(Def.' s
Resp.
Defendants'
that
Correll's
delay
delegate,
and
April
16,
regulate
at
the
they
in
participated
arguments
have
this
became
Because
fail
action.
subject
Section
Convention,
became a delegate,
did
not
apply
financial
to
conduct
(which
the
occurred
the
attributable
to
which
became
545(D),
on
purports
to
represent Virginia
to Correll
before
he
on
Republican
March
the
costs
of
the
2016,
the Commonwealth
1,
presidential
2016),
of
have
primary."
neither
Section
545(D),
As of April 16,
not
that
Correll
to
primary
is
National
necessary
in
because
identified
pursuing
therefore
2016.
the
who
13)
However,
prejudices
voters
and
preference
the
voters'
primary
even
if
Correll
had
63
be
traced
to
Correll's
delay,
and
the
affirmative
defense
of
theory
or
The
Intervenors
prejudice,
chaos
(Tr.
8).
arguing
on
the
Jul.
1,
However,
eve
that
of
2016
the
2016
different
late-filed
Republican
216:12-16,
theory,
slightly
Correll's
that argument
"conscience"
lacks
employ
suit
National
220:12-222:6;
is
sowing
Convention.
Intervenors'
Resp.
which
the
Court,
jurisdiction to adjudicate.
The
as
discussed
Intervenors
38
earlier,
do not assert
RNC
215:15-19,
Rule
16
and
Section
545(D).
(Tr.
Jul.
7,
2016
216:22-220:15).
CONCLUSION
For
the
Correll's
foregoing
favor
on
reasons,
Counts
and
judgment
II
and
will
the
be
entered
Commonwealth
will
in
be
because
relief
they
can
be
are
prayers
granted.
for
relief,
Correll
put
on
not
no
claims
evidence
upon
as
to
which
Count
with
the
results
of
the
primary
election,
will
not
Ill and did not argue it. Thus, Count III will be dismissed with
prejudice.
It
is
so ORDERED.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
65