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Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 1 of 65 PageID# 1179

UNITED STATES DISTRICT COURT

JL I I 2016

FOR THE EASTERN DISTRICT OF VIRGINIA


RICHMOND DIVISION

CLERK, U.S. DISTRICT COURT


RICHMOND. VA

Carroll Boston Correll, Jr.,


On behalf of himself and

others similarly situated,


Plaintiffs,
Civil Action No.

V.

3:16CV467

Mark R. Herring,
In his official capacity as

Attorney General of the


Commonwealth of Virginia, et al.,
Defendants.
MEMORANDUM OPINION

This matter is before the Court following a


the

merits

of

the

FIRST

AMENDED

VERIFIED

FOR INJUNCTIVE AND DECLARATORY RELIEF

(ECF No.

For the

20)

filed

reasons,

by Carroll

CLASS

(the

set

bench trial on

ACTION

COMPLAINT

"Amended Complaint")

Boston Correll,

and to the extent,

Jr.

C'Correll").

forth below,

judgment

including declaratory and injunctive relief will be entered for


Correll.
PROCEDURAL BACKGROUND

Correll,
Convention,

Virginia

filed

delegate

VERIFIED

INJUNCTIVE AND DECLARATORY RELIEF

to

CLASS

the

Republican

ACTION

("Complaint")

National

COMPLAINT

(ECF No.

FOR

1)

on

June 24, 2016. The original Complaint posited a class consisting


of Republican and Democrat delegates to the parties' respective

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 2 of 65 PageID# 1180

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

Virginian delegates to the 2016 Republican National Convention.


(Am.

Compl. SISl 36-41) .

Several
National

other

Virginian

Convention

defendants.

(ECF No.

delegates

subsequently
22).

to

the

moved

2016

to

Republican

intervene

Over Correll's objection,

as

though upon

agreement of the original defendants^ (''Defendants") , the motion

was granted and the additional delegates


were permitted to intervene.

(''the Intervenors") ^

(ECF No. 29).

There has been no motion for class certification and,

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

Virginia; Marc Abrams, Commonwealth Attorney for the City of


Winchester;
James B. Alcorn,
Chairman of the Virginia State
Board

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

All of these defendants were named in their

and

are

represented

in

this

case

by

the

Office of the Attorney General.

^ The Intervenors are John Fredericks,


Belefski,
Lind,

Eugene

Delgaudio,

and Brandon Howard.

Virgil

Waverly Woods, Michael

Goode,

Tamara

Neo,

Howard

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 3 of 65 PageID# 1181

which judgment will be entered, are solely those claims made by


Correll,

individually.

The Amended Complaint presents five counts. Count I alleges


that

Va.

Code

Correll's

24.2-545(D)

First Amendment

("Section

545(D)")

violates

right to free political speech,

more

specifically his individual right to "vote for a presidential


nominee

at

party's

nominating

convention,"

''by

stripping

delegates" to the 2016 Republican National Convention "of their


freedom

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

or to vote consistent with party rules."

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.

Count IV and Count V present prayers for forms

rather than claims upon which relief may be granted.

Immediately

Motion

III

the

freedom to vote their

conscience,

powers

that

violates Correll's First Amendment rights of free

Republican National Convention "of their

51-52).

with

after

filing

Temporary
(ECF

No.

4).

his

Complaint,

Restraining
During

Order
telephone

Correll

and

filed

Preliminary

conference,

the

parties shortly thereafter agreed to consolidate for hearing and

decision the request for a restraining order and the request for

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 4 of 65 PageID# 1182

a preliminary injunction.
Court

set

argument

the

on

motion

July

1,

(Tr. Jun. 21, 2016, ECF No. ). The

for

2016.

an

evidentiary

(Order,

hearing

ECF Nos.

11,

and

18) .

oral

At

the

beginning of that hearing,

the parties agreed that,

pursuant to

Fed.

the Court

consolidate

R.

Civ.

P.

65(a)(2),

should further

the hearing on the preliminary injunction with a bench trial on


the merits.

At
No.

40)

set

of

(Tr.

trial,

Jul.

the

7,

2016, ECF No.

parties

presented

and ten Joint Exhibits.


exhibits

consisting

42,

164:12-165:5).

Joint

Stipulation

(ECF

Correll presented an additional

of

minutes

from

earlier

Republican

National Conventions.

Correll and the Intervenors each presented

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

experts also testified about certain filings that the Republican


Party of Virginia

C'RPV")

end of the hearing,


submitted for

made pursuant

to RNC Rule

16.

At

the

counsel presented argument and the case was

decision on the merits.


FINDINGS

OF FACT

At trial, Correll and the Intervenors each presented expert

testimony to support their contentions on the meaning,

present

force,

and

and

effect

of

RNC

Rule

16

and

of

RNC

Rules

37

38.

Correll offered the expert testimony of Erling ''Curly" Haughland


C'Haughland"),

who

presently

serves

as

member

of

the

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 5 of 65 PageID# 1183

Republican National Committee,


2016

Republican

National

will serve as a delegate to the

Convention,

and

has

served

delegate to past Republican National Conventions.


2016

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

their consciences at any Republican National Convention.^


Jul.
of

1,

2016

Jesse

13:4-30:5).
Binnall

The

Intervenors

C'Binnall"),

offered the

certified

(Tr.

testimony

professional

parliamentarian who has worked with the Republican rules since


2012,

has

national

advised

and

Republican

local

levels

convention

about

those

delegates

rules,

and

has

Republican presidential candidates about those rules.


7,

at

the

advised

(Tr.

Jul.

2016 103:1-110:11) .

Haughland was of the opinion that,

even though RNC Rules 37

and 38 do not explicitly provide for ''conscience voting," their

predecessor

rules

have

vote as they please.

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)

Binnall took the view that

"'conscience voting"

together

with

^ Curly Haughland & Sean Parnell, Unbound:

RNC

Rule

16(c) (2)

The Conscience of a

Repxiblican
Delegate
(2016) ,
available
http://thisiscommonsense.com/pdf/Unbound_online.pdf.
5

and that

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 6 of 65 PageID# 1184

govern the allocation and binding of delegates when voting. (Tr.


Jul.

1,

2016

127:3-130:17,

134:12-22;

136:21-137:19).

The

experts largely concurred that RNC Rules 13-25 are presently in


effect,

and that RNC Rules 25-41 are not presently in effect.

(Tr. Jul. 1, 2016 36:2-39:7, 135:8-136:2).


There

is

no

need

to

further

discuss

the

debate

over

the

meaning and effect of RNC Rules 37 and 38 because, as explained

below, the ''conscience voting" theory is not ripe for decision.''


As

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

the allocation and binding of delegates

at

the

convention.

significantly

using
(e.g.,

credits

and supported by the

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

and by the fact

that Haughland's views on RNC Rule 16 lack any textual support.

In

closing

arguments,

Correll's

counsel

agreed

that,

if

Correll could vote proportionally to Virginia's primary votes as


required

by

RNC Rule

16,

rather

who garnered the most votes as


would be tantamount

7,

2016

225:5-6).

than

voting

for

the

required by Section 545(D),

to Correll voting his conscience.

Counsel

for

candidate

the

^ See infra Part I.B.2.


6

Intervenors

also

this

(Tr.

Jul.

agreed

that

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 7 of 65 PageID# 1185

the

case

could

Section

be

545(D)

resolved

to

allow

by

enjoining

Virginia's

the

enforcement

delegates

to

vote

of

in

proportion to the results of Virginia's primary vote as required


by RNC Rule 16.

However,

counsel for the

Intervenors stressed

that the Intervenors still strongly opposed any finding that RNC

Rules

37

and

38,

conscience voting.

singly

or

jointly,

permit

unrestricted

(Tr. Jul. 7, 2016 215:15-19, 216:22-220:5).

At the end of the 2012 Republican National Convention,

party issued a set of rules,


immediately

and

some

of

the

some of which were to be effective


which

were

proposed

for

possible

adoption at the next convention in 2016. Specifically, on August


27,

2012,

the

2012

Republican

National

''Rules of the Republican Party"


amended

record

four

at

times;

Joint

However,

the

the

parties

("RNC Rules") .

current

Exhibit

have

1.

Convention

form

On

this

radically

of

the

Those rules were

the

much,

adopted

rules

the

different

is

in

parties

views

the

agree.

about

the

meaning and present force of the RNC Rules.


Based

on

testimony,
in

force

text

of

the

RNC

rules

and

on

Binnall's

the Court finds that RNC Rules 13 to 25 are presently


regarding

Convention,

delegate

the

convening

including

votes.

(Tr.

delegate

Jul.

7,

of

the

2016

allocation

2016

Republican

and

the

135:8-136:2).^

binding

Further,

^ Correll's own expert did not disagree on this point.


7,

2016 36:2-39:7.)

National

of

the

(Tr. Jul.

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 8 of 65 PageID# 1186

record

shows

itself,

are

that

RNC

Rules

26

to

temporary

rules

for

42,

use

according

in

the

to

2016

Rule

42

Republican

National Convention^ and have no force unless they are adopted by

the

assembled

delegates

place from July 18-21,


36:2-39:7,

RNC

at

that

2016.

convention,

which

(RNC Rules 22;

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

delegation reduced by 50%.


RNC Rule 16(f)(1)
must adopt
(Joint

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

provides that Republican state committees

15) .

March

1,

(Joint Ex. 1, p. 15).

1,

by

19,

adopted

2016;

(2)

RNC

which

not

Rule

2015,

the

resolution

in

directly for presidential candidate,


which,

to govern their primaries by October 1,

Virginia
(1)

Rule

(Joint Ex.

for

voters

Republican

to

hold

would vote

delegates;

16(c)(2),

2015.

would

and

(3)

allocate

delegates proportionally according to the primary votes received

The

2012

RNC

Rules

did

govern

the

2012

Republican

National

Convention at which they were adopted.

^ As Correll's own expert ceded.


"proposed rules."

(Tr.

Jul.

7,

Rules

26 to

2016 39:5-7).

41 are merely

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 9 of 65 PageID# 1187

by each candidate,
Ex.

2;

Joint Ex.

with all the delegates ''in one pot."

3,

pp.

4,

timely transmitted this


Committee

C'RNC") .

8).

Pursuant to RNC Rule 16(f),

information to the

(Joint

Ex.

(Joint

3).

RPV s

RPV

Republican National

Rule

16(f)

Filing also

included a sample ''Declaration and Statement of Qualifications"


("Declaration")
Ex.

3,

p.

that delegates would be required to sign.


14).

That

Declaration

included

(Joint

provision

implementing RNC Rule 16(c), stating that:


I further acknowledge, understand, and agree
that if elected and if given the ability to
vote at the Republican National Convention,
my vote on the first ballot will be bound by
the results of the March 1, 2016 Virginia
Presidential Primary, in accordance with the
Allocation
Resolution
adopted by
the
RPV
State Central Committee on September
19,
2015.

(Joint Ex.
2015

3,

p.

14; Joint Ex.

resolution

delegates).
from

providing

RPV s

Virginia's

5)

Rule

for

16(f)

elections

(referencing the September 19,


proportional

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

Virginia Department of Elections certified that candidate Donald


Trump

won

the

plurality of

4).

most

34.80

votes

in

the

percent of votes.

primary

(E.g. ,

Marco Rubio received 31.98 percent,

election,

ECF No.

25,

with

Ex.

2,

Ted Cruz 16.69 percent.

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 10 of 65 PageID# 1188

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).

convention held on April

delegate

(Joint Stip.,

one

ECF No.

to

40,

16,

the

Republican

SI 17;

Joint Ex.

2016,

Correll was

National

Convention.

6).

Correll signed a

copy of the ''Declaration and Statement of Qualifications" that


had been

in 0pp.

included

to Mtn.

Injunction,

in

the

RPV s

Rule

16(f)

Filing.

(Def.'s

Mem.

for Temporary Restraining Order and Preliminary

ECF No.

25,

23 n.l4)

(''Def.'s Resp.").

In doing so,

Correll agreed to the requirements of RNC Rule 16(c)(2).


Correll

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

regarding the application of Section 545(D)."


10

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;

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 11 of 65 PageID# 1189

Joint

Stip.

21,

referred Correll,

Abrams

{''Abrams") ,

Winchester.
June

2,

Joint
a

Ex.

7) .

The

Department

of

Elections

resident of the City of Winchester,

the

Commonwealth's Attorney

for

to Marc

the

City of

(Am. Compl. SI 25; Joint Stip. SI 21; Joint Ex.

2016,

Correll

contacted Abrams,

7). On

requesting an advisory

opinion regarding application of Section 545(D).

(Joint Ex.

8).

On June 8, 2016, Abrams responded in relevant part that


My office generally does not respond to
requests
for
legal
opinions
about
potentially criminal conduct which we may or
may not prosecute . . . . However,
aware
the
first
rule
of
construction

dictates

interpret
words
of
ordinary meaning of

that

as

we

you are
statutory
are

to

a
statute
using
the
language
in

the
the

statute. The plain meaning of the statute


you cite,
Va.
Code [ ] 24.2-545 (D)
would
appear to be clear.

I refer you to consult private counsel for


an
opinion
as
to
issues
such
as
jurisdiction,
venue,
potential
penalties,
etc.

(Joint Ex.

8). On June 8,

2016, Correll contacted the Chairman

of the Electoral Board for the City of Winchester to request an

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

To provide context to this ''as you are aware," Correll is an


attorney and ran against Abrams for the City of Winchester
Commonwealth's Attorney position in November 2015. (ECF No. 25,
Ex.

1,

1) .
11

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 12 of 65 PageID# 1190

opinion on the application of Section 545(D); the Department did


not respond prior to initiation of this litigation.
25-26) .

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

difficulties in prosecuting a delegate


circumstances

General

to

that

prosecute

delegate for
No.

any

25,

Ex.

other

would compel

Mr.

National

. . .

...

Convention.

would
I

be

serious

do not anticipate

the Office of the Attorney

Correll

or

any

other

Republican

. . . conduct in their capacity as a delegate'') ; ECF


1,

3)

C'l do not intend to prosecute Mr.

Republican

delegate

for

their

conduct

Correll or

at

the

2016

Republican National Convention in Ohio").


These

Counts

facts

and

II

form

of

the

the

basis

Amended

for

the

claims

Complaint,

and

asserted

provide

in

the

factual context for the Court's legal conclusions.


SECTION 545(D)

The

statute

at

MUD CORRELL'S THEORIES OF RELIEF

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 13 of 65 PageID# 1191

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

alternates shall be bound to vote on


first ballot at the national convention

the
for

the candidate receiving the most votes in


the primary unless that candidate releases
those
delegates
and alternates
from
such
vote.

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).

Virginia Code since 1999.


the case,
of

24,

SI

15)

(Va.

Compl.,

ECF No.

on

Code

(relying

Section 545(D)

SB 1287

(Am.

Va.

has been part of the

1999).

At

the outset of

Correll presented two related but independent theories

relief.

Correll's first theory argued that RNC Rule 38 or in conjunction with RNC Rule 37 -

delegate

to

the

2016

to vote his "conscience"

Republican

guarantees that Correll,

National

(''that is,

ECF

Convention,

[to vote]

he believes to be the best candidate").


Mtn.

on its own

is

as

free

for the person . . .

(Pl.'s Mem.

in Supp.

of

for Temporary Restraining Order and Preliminary Injunction,

No.

545(D)

5,
is

4)

("Pl.'s

Mem.").

unconstitutional

According

because

13

it

to

Correll,

trenches

on

Section

his

First

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 14 of 65 PageID# 1192

Amendment right to vote his conscience pursuant to RNC Rules 37


and 38.

(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:

In the balloting, the vote of each state


shall be announced by the chairman of such
state's delegation, or his or her designee,
and in case the vote of any state shall be
divided,
the
chairman shall
announce
the
number

of

votes

for

each

candidate,

or

for

or against any proposition; but if exception


is taken by any delegate from that state to
the

correctness

of

such

announcement

chairman of that delegation,


the

convention

shall

by

the

the chairman of

direct

the

roll

of

members of such delegation to be called, and


then shall report back the result to the
convention at the conclusion of balloting by
the

other

recorded

states.
in

The

result

accordance

with

shall

the

then

vote

of

be
the

several delegates in such delegation.


(Joint Ex.

1, p.

20) . RNC Rule 38 provides:

No delegate or alternate delegate shall be


bound
by
any
attempt
of
any
state
or
Congressional district to impose the unit
rule.
A
''unit
rule''
prohibited
by
this
section

means

rule

or

law

under

which

delegation at the national convention casts


its entire vote as a unit as determined by a
majority vote of the delegation.
(Joint Ex.

1,

Correll's
Republican

p.

21).

second

National

theory

argued

Convention

have

that
a

delegates
right

to

to
vote

the
in

accordance with the rules promulgated by the national Republican


Party

(as

implemented by the state Republican parties)

14

and that

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 15 of 65 PageID# 1193

the

rules

of

Virginia's

the

national

delegates

percentage of votes
March 1,

Republican

vote

Party

proportionally

require

based

upon

that

the

that candidates received during Virginia's

2016 primary election.

(Pl.'s Mem.

3-4;

Pl.'s Reply 3-

5). Correll's second theory is based on three subsections of RNC


Rule 16. First, there is RNC Rule 16(a)(1), which provides that:

Any statewide presidential preference vote


that permits a choice among candidates for
the Republican nomination for President of
the United States
a

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

elected directly by primary voters.

(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

each delegate's vote is to be

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

March 15 in the year in which the national


convention is held shall provide for the
allocation of delegates on a
proportional
basis.

15

16(a)(2)

rule."

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 16 of 65 PageID# 1194

(Joint

Ex.

1,

Section

545(D)

p.2)
is

(emphasis

also

added.

According

unconstitutional

because

to

it

Correll,

trenches

on

those First Amendment associational rights. (Pl.'s Mem. 8-9).^


CONCLUSIONS

Before

the

turning

to

jurisdictional

the Intervenors.

opinion

OF LAW

the merits,

challenges

it

is

raised by

necessary

the

to

resolve

Defendants

and by

After resolving jurisdictional challenges,

addresses

the

injunctive relief.

merits

Finally,

of

the

case

and

the

request

this

for

the Court addresses and rejects the

contention that Correll's prayer for injunctive relief is barred


by the equitable doctrine of laches.
I.

JURISDICTION

''Article III of the Constitution limits the jurisdiction of


federal

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

^ At the time he filed his initial memorandum in support of a


preliminary injunction, Correll appeared to favor the RNC Rule
38
conscience
theory over the RNC Rule
16 proportionality
theory. (E.g., Pl.'s Mem. 8-9). However, Correll's reply brief
emphasized the RNC Rule 16 proportionality theory over the Rule
38 conscience theory.
(Pl.'s Reply 12-21).
At the hearing,
Correll's expert evidence again emphasized the RNC Rule 38
conscience theory and the ways in which Republican rules had

been interpreted at previous conventions to confer that right on


delegates.

(Tr.

Jul.

7,

2016 32:13-33:16,

16

44:10-53:7).

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 17 of 65 PageID# 1195

and

ripeness.

Jurisdictional

issues

must

be

resolved

before

evaluation of the merits.

A.

Standing

The test for standing is well-settled.

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.

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 18 of 65 PageID# 1196

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.

(internal quotations omitted).

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

have held that

imminent.
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.

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

rights are in jeopardy. Thus,


[e]ven where
a
First Amendment
challenge
could be brought by one actually engaged in
protected activity, there is a possibility
that,
rather than risk punishment for his
conduct in challenging the statute, he will
refrain
from
engaging
further
in
the
protected activity. Society as a whole then
would

be

the

loser.

Thus,

when

there

is

danger of chilling free speech, the concern


that constitutional adjudication be avoided
whenever
possible
may
be
outweighed
by
society's
interest
in
having
the
statute
challenged.
18

This

free

Amendment

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 19 of 65 PageID# 1197

Sec'y of State of Md.


947,

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.

see also Cooksey v.

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

721 F.3d at 235.

intention

affected

'Mi]n

element

showing

plaintiff may bring a

arguably

that

exists

Inc.,

injury-in-fact

to free expression." Cooksey,

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).

("Correll will not vote for

requirements,

(Am.

Correll

and

Fourteenth

Republican

course

Compl.,

of

SISI

has

National

conduct

21,

Donald Trump on the first

any other ballot.").^ Although early First Amendment

is

42-55)

ballot or

standing

Correll also notes that the chilling effect of Section 545(D)

may threaten the rights of the broader delegation


Rule 17 states that a state delegation which acts
19

because RNC
contrary to

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 20 of 65 PageID# 1198

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),

more current decisions plainly acknowledge that it is sufficient

to plead intent to engage in specific conduct proscribed by the


statute

in

engaged

in

List,

question,

("COAST has alleged that it previously

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

within" the operative statute)


has

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

Rule 16(c) (2) - that is to say, voting in a non-proportional


manner despite holding a primary before March 15, 2016 - the
Virginia delegation will be slashed by fifty percent.
(Pl.'s
Reply 15) . Because this speaks more to the rights of the 49
delegates

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 21 of 65 PageID# 1199

circumscribed by the statute in question,

he satisfies the first

two requirements for pre-enforcement review.


The final requirement for pre-enforcement injury,
threat

of

subjective

prosecution,"

chill

of

is

also

satisfied

criminal

in

statute,

''credible

this

absent

case.

any

The

other

government activity,

is not an adequate substitute for a claim of


specific present objective harm or a threat
of specific future harm . . . save in rare
cases involving core First Amendment rights
....

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)).

Proving "credible threat of prosecution" requires a showing that


one's

First

Amendment

activities

have

been

chilled. Subjective or speculative accounts


of such a chilling effect, however, are not
sufficient.
Any
chilling
effect
must
be
objectively
reasonable
....
Government
action will be sufficiently chilling when i t
is likely to deter a
person of ordinary
firmness

from

the

exercise

of

First

Amendment rights.

Cooksey,

Charlotte,

721

F.3d

at

235-36

(relying

on

635 F.3d 129, 135 (4th Cir. 2011))

Benham

v.

City

of

(emphasis added).

The unconstitutional chill itself is an injury, where fear of


prosecution is objectively reasonable. Cooksey, 721 F. 3d at 226
(''The injuries in this case-a chilling of speech and threat of
21

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 22 of 65 PageID# 1200

Supreme Court decisions on ''credible threat of prosecution"


teach

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

frequency of enforcement against similarly situated persons,

Susan B. Anthony List,


Law

(1)

List,

plaintiff, Steffel v. Thompson,


(3)

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)

has never previously been enforced against Correll or any

other

person.

(ECF

No.

necessitates

examination

creates

type

threat

the
of

ordinary

of

criminal

firmness

the plaintiff was

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.

"twice warned to stop handbilling

caused

to

factor

the

actions

of

In
. . .

of

Steffel,
and has

the

State

Board.")

Moribundity may make a threat of prosecution objectively


unreasonable for standing purposes in some cases, e.g., Poe v.
Ullman, 367 U.S. 497 (1961), but does not eliminate standing
when a government official nevertheless makes a particularized
threat of enforcement against a plaintiff. NCRL, 168 F.3d at
710.
22

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 23 of 65 PageID# 1201

been

told

by

the

police

that

if

he

again

handbills

at

the

shopping center and disobeys a warning to stop he will likely be

prosecuted." Steffel,
that

those

415 U.S. at 458-59. The Supreme Court held

police

warnings,

together

plaintiff's partner in handbilling,

with

the

arrest

of

were objectively chilling.

Id.

The

Fourth

objectively

Circuit

chilling

has

threat

informal

correspondence

Cooksey,

721 F.3d at 237;

held

of

law

regulating

purposes.

NCRL,

particularized,

by

may

state

arise

official.

168 F.3d at 709-11.

plaintiff became concerned that


election

enforcement

issued
NCRL,

that

E.g.,

In NCRL,

it might be subject to a

corporate

168 F.3d at 709.

expenditures

from

for

the

state

political

NCRL wrote to the Chief Deputy

Director of the State Board of Elections to request her opinion,

enclosing samples of the literature it sought to distribute.


The

director

[literature]
corporate

''informed

would

NCRL

violate

expenditures

that

the

distribution

the

State's

prohibition

political

purpose."

for

assessing the credible threat of prosecution,

appears by its terms to apply to NCRL . . . .


More importantly,
NCRL has stated that i t
wants to distribute these guides
...
and
fall

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

the Fourth Circuit

noted that the statute in question:

would

of

Id.

of

whether
wrote

to

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 24 of 65 PageID# 1202

the
not

State Board of
indicate
that

Elections.
i t would

The State
interpret

did
the

statute to mean anything other than what its


plain language would suggest. As a result,
NCRL refrained from disseminating its guide,
and its speech was chilled.

Id.

at

710

official

(emphasis

sent

the

conduct would fall


the fact
it

not

that,

enactment,

groups"

initial

Once

[the

the

the

of

stating

statute

has

position

objectively unreasonable.

Elections

that

NCRL's

neither

(1)

post-litigation position that

twenty-five

Board]

in NCRL's

Board

within the scope of the statute,

interpret
''in

the

communication

that the State adopted a

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.

In its relevant parts,

this case is much the same as NCRL.

Correll became concerned that his intended conduct might subject

him to prosecution under Section 545 (D).


Stip.

SISI 20-26) .

(Compl.

511 21-25;

Joint

Correll wrote to the Board of Elections and to

Abrams to request their opinions.

(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),

but Abrams provided a letter

stating in relevant part that:

Donald Trump is not a Commonwealth official, and his thoughts


on whether Correll may or may not be prosecuted based in part on
Section 545(D)
(Compl. iSI 30-31; Commonwealth's Resp. 19) are
irrelevant to a ''credible threat of prosecution" analysis.
24

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 25 of 65 PageID# 1203

My office generally does not respond to


requests
for
legal
opinions
about
potentially criminal conduct . . . . However,
as you are aware the first rule of statutory
construction

dictates

that

we

are

to

interpret the words of a statute using


ordinary meaning of the language in

the
the

statute. The plain meaning of the statute


you cite,
Va.
Code[]
24.2-545(D)
would
appear clear.

I refer you to consult private counsel for


an
opinion
as
to
issues
such
as
jurisdiction,
venue,
potential
penalties,
etc.

(Compl.

SI 27,

outright,
violate"

Section
shall

as
the

in

to

for

the

unless

Ex.

1,

that

168

states

vote

on

This letter does not state

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

from such vote," the Court

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

proposed course of conduct would violate Section

545(D).

Defendants
of

raise

prosecution:

prosecute Correll,
of

criminal

(1)
and

statutes

two

arguments

that
(2)
would

the

relating

Commonwealth

to

has

that state law on the


not
25

permit

credible
no

threat

plans

to

long-arm reach

prosecution

of

Correll.

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 26 of 65 PageID# 1204

(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

as NCRL makes clear,

the

believe

not,

state that

18-19;

enforcement

that

has

as Defendants and Intervenors

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

violating Section 545(D).

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

difficulties in prosecuting a delegate ... I do not anticipate


circumstances that would compel . . . the Office of the Attorney
General
to
prosecute
Mr.
Correll
or
any
other
Republican
delegate for . . . conduct in their capacity as a delegate"); ECF
No. 25, Ex. 1, 3) C'l do not intend to prosecute Mr. Correll or
any other Republican delegate for their conduct at the 2016
Republican National Convention in Ohio").
At the conclusion of the hearing, Correll's counsel briefly
argued that Hudson's statement that she does ''not anticipate
circumstances"
that
would
compel
prosecution
is
not
an
unequivocal statement of non-prosecution.
(Tr.
Jul.
7,
2016
230:5-231:20).
Because
post-litigation
disavowal
of
prosecutorial intent is not dispositive, NCRL, 168 F.3d at 710,
the

Court

need

not

decide

whether

unequivocal disavowal.
26

Hudson's

statement

is

an

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 27 of 65 PageID# 1205

prosecutorial intent^^ nor (2) historical non-enforcement against


a similarly situated group can ameliorate the credible threat of

prosecution.

conveyed

NCRL,

that

168

F.3d

Correll's

at

710.

intended

Because

actions

Abrams's

were

letter

subject

to

prosecution, neither these post-litigation positions disclaiming


prosecutorial
545(D)

intent nor historical

renders

Correll's

fear

non-enforcement of Section

of

prosecution

objectively

unreasonable.

Second,

prosecution

Defendants

argue

is

objectively

not

''traditional view of criminal


that

the

crime

occur

that

Correll's

fear

reasonable

(relying on Va.

475,
own

479

(1937)).

criminal

because

the

jurisdiction in Virginia requires

within

the

Commonwealth,"

and

intends to engage in expressive conduct in Ohio.


17)

of

Code 19.2-239;

Farewell v.

Correll

(Def.'s Resp.
Com.,

167 Va.

This argument is inconsistent with Defendants'

characterization

of

the

law

and

of

the

harms

they

suggest

that Correll's conduct might cause.

Defendants

note

that,

"MiJn

recent

years,

Virginia

courts

have established room to prosecute an offense not fully executed

"NCRL is
that

NCRL's

left

...

officers

with nothing more than the


will

face

no

criminal

State's promise

officers

....

NCRL's

First Amendment rights would exist only at the sufferance of the


State Board of Elections. It has no guarantee that the Board
might not tomorrow bring its interpretation more in line with
the provision's plain language. Without such a guarantee, NCRL
will

suffer

prosecuted

from

....

be chilled as a

the

And

reasonable

its

fear

that

constitutionally

result." NCRL,

it

can

protected

168 F.3d at 710-11.


27

and

will

speech

be

will

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 28 of 65 PageID# 1206

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

(relying on Foster-Zahid v. Com.,

440

(1996));

276 Va.

443,

(Pl.'s Reply 19-20

452

(2008)

(relying on

(noting that the state

"may exercise jurisdiction over criminal acts that are committed


outside the state,

but are intended to,

harm within the state");

(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

Correll will cause harm in Virginia:

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

Commonwealth's expenditure of resources in holding the primary,"


undermining
process,"
voter

"confidence

undermining

confidence,

and

in

the

integrity

"participatory
cancelling

of

the

electrical

and

destroying

democracy"

out

"more

than

million

votes." (Def.'s Resp. 13-14).^^ In other words. Defendants insist


that Correll's conduct in Ohio

(not voting for the candidate who

As noted in greater detail in the merits discussion, this


interest in holding a primary does not create a constitutionally
cognizable
interest
in
regulating
the
conduct
of
a
party
convention under Democratic Party
Follette, 450 U.S. 507, 124 (1981).
28

of

the

United

States

v.

La

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 29 of 65 PageID# 1207

received

the

Virginia.
harm

most

votes

Defendants'

they

assert

Commonwealth

performed

their

primary)

briefs

prosecute

outside

the

will

be

felt

in

characterization of Virginia law and the

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

credibility of a credible threat of prosecution.


Defendants

Virginia's

may

or

may

jurisdiction

or

not

be

about

correct

whether

about

the

convention

reach

of

voting

in

Ohio might produce the harms described in Virginia.

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,

private counsel for ""issues such as jurisdiction."


ECF

reasonable
another

such

Correll

(Compl.

points

out,

Assembly

a
to

SI 27,
'Mi]t

adopted

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 30 of 65 PageID# 1208

[the

statute]

Reply 19)

without

694 n.4

it

be

enforced."

requirements

Correll

has

for pre-enforcement

and neither

(Pl.'s

Inc. v. Virginia,

(4th Cir. 1986)).

conclusion,

context,

that

(relying on Am. Bookseller's Ass'n,

802 F.2d 691,

In

intending

shown

standing

Defendants

nor

the

in a

Intervenors

three

basic

First Amendment
have

dislodged

the credibility of Abrams's initial threat of prosecution.


2.

To

Causation and Redressability

establish

sufficient

complained

causal

of"

redressed by

S. Ct. at 2342

standing,

plaintiff must

connection between

and

''a

[likelihood]

favorable

decision."

the

also

establish

injury and the

that

the

Susan

B.

injury

''a

conduct

will

be

Anthony List,

134

(internal quotations omitted).

Defendants argue that the true cause of Correll's injury is


not Section 545(D),

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)

RPVs own rules,

the

Declaration;

than

this

directly

basis.

selecting

Defendants

delegates.

argue

is not the cause of Correll's injury but,

that

own

choices

(2)

state-funded primary in which voters

Section 545(D)
Correll's

or

to

or

the

choices

of

the

injury for which Correll presently seeks redress.

30

RPV

that

rather,

caused

the

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 31 of 65 PageID# 1209

a. RPV s Choices in Potentially Submitting to Section


545(D) are not the Source of Correll's Injury, because
the

Present

Section

Conflict

545 (D) ,

is

and

between

the

RNC

the

has

RNC

not

Rules

and

Voluntarily

Submitted to Section 545(D)

Defendants

Alcorn,

820

F.3d

105 F.3d 904

alleged

cite

24th

624

(4th Cir.

(4th Cir.

injury

is

Senatorial

1997)

caused

Dist.

v.

Meadows,

for the proposition that,

where an

and Marshall

Comm.

v.

by

2016)

Republican

party's

voluntary

choice,

the

injury is not caused by the Commonwealth and cannot be redressed


by

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

RNC Rule 16(a)(1)

choose

voters

(3)

(1)

(Def.'s

chose
vote

545(D)

a
to

for

20).

winner-take-all
hold

applies
contest

rather than delegates;

As

permits a state

and

proportional

candidates,

only

state-funded

Resp.

rather

when
in

the

which

such that

than

state
voters

(4)

RPV s

choice brought its delegates within the ambit of Section 545(D).

(Def.'s Resp.
delegates
contest,

20-24).

rather

In other words:

than

candidates,

if RPV held elections for

or

chose

winner-take-all

then Correll would not be injured by any clash between

RNC Rule 16 and Section 545(D).

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 32 of 65 PageID# 1210

acting

in

conformance

with

national

between state party rules and a

action

of

state

party.

rule,

not

conflict

state statute arising from the

Both Alcorn and Marshall

dealt

with

cases in which the RPV affirmatively and voluntarily engaged in

some

action

party)
a

which

subjected

to a state statute,

conflict

Alcorn,

820

the

F.3d

627-28,

In both of those cases,

party

(or

sub-unit

party

rules

630-33;

and

the

Marshall,

state
105

were

the

statutes.

F.3d at

905.

i t was fair to say that the RPV chose to

bring itself under the control of the state law,


sub-units

of

and plaintiffs subsequently alleged

between
at

the

obliged

to

live

with

and it and its

the

constricting

consequences of that choice.


In this case,

allegedly

in

affirmative
545(D).

however,

conflict
and

The RNC

the RNC -

with

voluntary

Section
act

that

the entity whose rules are

545(D)
would

has

submit

has not chosen to subordinate i t s

engaged
it

to

in

no

Section

rules to state

statutes,^ and neither it nor its adherents are subject to the


state's

attempts

carries out
and

very

which

is

to

circumscribe

its business.

live

not

conflict

manner

This means that

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

Incorporating the Incumbent Protection Act into its own rules


in Alcorn; holding an open primary in Marshall.

RNC Rule 14 (c)

explicitly states that Rule 16 controls in any


(Joint Ex. 1, p. 11.)

conflict with state laws.

32

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 33 of 65 PageID# 1211

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

constitutionally left to the complete discretion of the national

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

Nothing in Alcorn or Marshall permits such a result.

infra

As

would allow the

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

known as the unconstitutional conditions doctrine

vindicates

the

Water

patently

condition

attached to one of multiple possible choices.


v.

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 34 of 65 PageID# 1212

b.
Correll's
Contractual
Source of his Injury

Obligations

are

Not

the

Defendants also argue that Correll's injury does not arise


from

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

(Def.'s Resp. 23). This argument lacks merit.


this

his

argument presupposes that Correll has only


''conscience''

claim

because

the

voting proportionally in accord with

the March 1,

2016 primary results would offend Correll's conscience.

simply contrary to the record.

argument

That is

Correll's counsel represented in

closing argument that voting according to the Declaration - that


is to say,

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

originates wholly with Section 545(D).

34

that

candidate

party's

voting,

is

winner-take-all

directly

requires

primary:

The

in

16,

Section

delegates

votes

Jul.

Section

Republican

the

(Tr.

would be voting in accordance with

16

in conflict
all

Virginia

received
requires
their

the
that

votes

ability to speak

convention

rules

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 35 of 65 PageID# 1213

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

difference between private contracts which

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

simply greater than the power of a private individual or private


contract.

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)

the state controls

adherence,

contract.

(1972)

421,

prestige and financial

conform in context of school prayer).

U.S.

laws

could

be

v.

Amendment

of

Hamlin,
right

to

counsel to any charge where defendant faces incarceration).


Where
agreement
the

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

The Court does not find i t unreasonable that

721

F.

3d at 226

First Amendment case).


35

(noting chilling as injury in

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 36 of 65 PageID# 1214

plaintiff might be willing to engage

he

risks

only

civil

consequences

conventions or party politics,


in

the

same

conduct

incarceration.

additional

To

when

the

chilling

effect,

such

as

an

exile

from

future

but would be unwilling to engage

he

extent

in certain conduct when

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

cause of injurious chill above and beyond that of any potential


civil

consequences

Declaration.

enjoining
has

associated

with

The Court may redress

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

civil contract he may have signed which independently,

but

forcefully,

conduct.

forbids

Moreover,

Defendants'

as

the

here,

only

him

to

engage

in

intended

point simply does not apply at all where,


claim

to

be

adjudicated

between RNC Rule 16 and Section 545(D),


between RNC Rules

his

less

is

the

conflict

rather than the conflict

37 and 38 and Section 545(D).

3. Standing to Speak for the Republican Party


Both

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).

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 37 of 65 PageID# 1215

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

speech and associational

First,

individual

as discussed in more

likelihood

speech and associational

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

836 F.2d 837,

''adherents") ;

841-42

Wiqoda,

delegates

interference
Bachur

(4th Cir.

on

party are

speech or associational injury to the member is,

an injury to the party.

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

indeed may not

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

fitness of the issues for judicial decision and

upon

(2)

of:

"(1)

the

the hardship

to the parties of withholding court consideration." Cooksey,

721

F.3d

the

at

240

(quoting

Nat^ 1

Park

37

Hosp.

Ass^n

v.

Dep^t

of

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 38 of 65 PageID# 1216

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,

see also Susan B.

Anthony

Doe,

personal stake in the outcome


the maturity of the harm
those

134

First

established upon

during

S.

Amendment

Ct.

the

at

standing

2347;

claims,

finding

inquiry.

Cooksey,

721

(''Our ripeness inquiry ... is inextricably linked to

our standing inquiry'');

that

(2003));

134 S. Ct. at 2347.

When

E.g.,

803,

seeking

782 F.2d at 1206 n.2

(standing)

(ripeness)

court's

....

(''Plaintiff's

is directly limited by
Both doctrines require

intervention

face

some

threatened injury to establish a case or controversy").


B. Anthony List,

actual

or

In Susan

the Supreme Court noted that:

In concluding that petitioners' claims were


not
justiciable,
the
Sixth
Circuit
separately
considered
two
other
factors:
whether the factual record was sufficiently
developed,
and
whether
hardship
to
the
parties would result if judicial relief is
denied at this stage in the proceedings...
Respondents contend that these "prudential
ripeness" factors confirm that the claims at
issue are nonjusticiable .... But we have
already
concluded
that
petitioners
have
alleged a sufficient Article III injury. To
the extent respondents would have us deem
petitioners'
claims
nonjusticiable
on
grounds that are 'prudential,'
rather than
constitutional,
[that]
request is in some

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 39 of 65 PageID# 1217

tension with our

principle that
to

hear

recent

and

reaffirmation

federal
decide

court's
cases

of

the

obligation

within

its

jurisdiction is virtually unflagging.


In any event,
we need not resolve the
continuing
vitality
of
the
prudential
ripeness doctrine in this case because the
"fitness" and ''hardship" factors are easily
satisfied
here.
First,
petitioners'
challenge
to
the
Ohio
false
statement
statute presents an issue that is purely

legal, and will not be clarified by further


factual development . . . And denying prompt
judicial review would impose a substantial
hardship on petitioners,
forcing
them to
choose

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

Fourth Circuit noted that,

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.

1. The Conflict Between Section 545(D)


is Fit for Adjudication

As
Rule

and

16,

respects
fitness

Cooksey,

credible

the

between

and hardship are,

clearly

threat

conflict

of

established

prosecution.

As

39

Section

as

in Susan

by

the

to

and HNC Rule 16

545(D)
B.

earlier

fitness,

the

and

RNC

Anthony List

finding
text

of

of
RNC

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 40 of 65 PageID# 1218

Rule

16

(requiring

that

Virginia's

proportionally because Virginia


15, 2016)

held a

delegation

primary prior

is clearly at odds with Section 545(D)

vote

to March

(requiring that

Virginia's delegation cast all of its votes for Donald Trump).


The

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

having been faced


adjust

his

conduct

or risk prosecution.

2.

The

Conflict

Between

Section

545 (D)

and

RNC

Rules

37 and/or 38 is Not Fit for Adjudication

As

respects

the

Rules 37 and 38,


Susan B.

however,

or

38

for

36:2-39:7;
existed

in

Convention

56:8),

between

Section

545(D)

and

RNC

there is a complication not present in

Anthony List or Cooksey that makes this issue unfit for

immediate resolution:
37

conflict

the

the RNC has not actually adopted RNC Rules

2016

National

135:8-136:2).
various
since

Although

guises

1880

at

(Pl.'s

no effect,

RNC Rules

nearly
Reply

the undisputed record here

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

at the 2016 Republican National Convention,


any effect.

37

every

5-10;

(Tr.

2016

54:3-

26 through
not

adopted

they may never have

135:8-136:2).

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 41 of 65 PageID# 1219

The decision of the


Inc.

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

including providing affected parties with notice

and opportunity to be heard and making a

final

decision which

would itself be amenable to administrative and judicial appeals.

Id.

at

734.

Although

the

existence

of

the

Plan

at

the

time

of

suit made it ''more likely'' that the complained-of logging would

someday occur,

any dispute over the Plan's contents could not be

ripe until the Plan was incorporated into a


Id.

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,

time of the suit unnecessary.


The

agency

final agency action.

that

allegedly

while

allegedly

41

in

the

at

Section

odds

545(D)

controlling

characteristic

Forest

that

with
is

RNC Rules
makes

both

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 42 of 65 PageID# 1220

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

Republican National Convention. Additionally,


37

of

like

but

at

the

do

the

not

2016

although RNC Rules

and 38's presence in the temporary rules and their historic

presence in the Rules of the Republican Party

{Tr.

Jul.

7,

2016

36:2-39:7) make adoption of RNC Rules 37 and 38 more likely the

same manner

likely than
that

that

if the

RNC Rules

37

the

Plan's

existence made

Plan did not


and

38

will

exist

it

final

is

be modified or

in

action more

still

deleted

possible
in

way

that creates no actionable conflict with Section 545(D).

On this basis,

and Cooksey:

the Court departs from Susan B.

Anthony List

any attempt to resolve an alleged conflict between

Section 545(D)

and RNC Rules 37 and 38 would require speculation

because RNC Rules 37 and Rule 38 are not now in effect.


merely proposed
the

2016

Republican

teaches that,

terms

that might be altered or even deleted at


National

the

Ohio

conflict is

conflict

is

Forestry

Ass'n

so uncertain in its

not

fit

for

judicial

over

any

alleged

and

38,

and not ripe for adjudication.

Because
conflict

Convention.

when one side of a

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 43 of 65 PageID# 1221

545(D)

with respect to RNC Rules 37 or 38.

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

alleged conflict between Section 545(D) and RNC Rule 16.

II.

MERITS OF THE RNC RULE 16 CLAIM

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

Court explained in Cousins:


There

can

freedom

to

no

longer

associate

with

others

for

that
the

common advancement of political beliefs and


ideas is a form of 'orderly group activity'
protected
by
the
First
and
Fourteenth
Amendments . . . . The right to associate with
the political party of one's choice is an
integral part of this basic constitutional
freedom.

43

the

political

Vice-President

at

(1976).

of

of
the

Supreme

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 44 of 65 PageID# 1222

Cousins,

419

U.S.

at

477

(citing

Kusper

v.

Pontikes,

414

U.S.

51, 56-57 (1973)).^^


Moreover,

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

scrutiny.'' Id. at 362


65

firmly

but

Buckley,

424

association

legitimate state

the interest advanced

vital

importance,

and

the burden is on the government to show the existence of such an


interest,"

and

the

means

chosen

narrowly tailored to do so.^^

to

effect

contend

that

interest must

be

Elrod, 427 U.S. at 362. Therefore

By virtue of the Fourteenth Amendment,


precepts apply fully to the States. Id.

Defendants

that

the

Court

these

should

First Amendment

apply

the

less

exacting standard set forth in Anderson v. Celebrezze, 460 U.S.


780
(1983)
and refined in Burdick v.
Takushi,
504 U.S.
428
(1992)
(''the
Anderson/Burdick
framework"),
because
that

framework applies to all "[c]onstitutional


election laws." (Def.'s Resp. 5).
It

is

true

applied to a
law
context,

that

the

variety of
and
that

Anderson/Burdick

challenges

to

framework

has

state
been

constitutional claims in the election


the
broad
language
found
in
those
44

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 45 of 65 PageID# 1223

where,

as here,

the Commonwealth seeks to impose its will on a

political party and its adherents by statute,

the Commonwealth

must establish that the statute is narrowly tailored to achieve

compelling

state

(citing Cousins,

interest.

419 U.S.

La

Follette,

450

U.S.

at 489; NAACP v. Alabama,

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.

decisions could be read to reach Correll's claims here.

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.

Decisions that directly confront the issue presented here, i.e.,


whether to "'accord [] primacy to state law over the National
Political
Party's
rules
in
the
determination
of
the

qualifications and eligibility of delegates to the Party's


National Convention," uniformly apply strict scrutiny. Id. ; see
also Democratic Party of the United States v. Wisconsin ex rel.
La Follette, 450 U.S. 107 (1981). Therefore, the Court declines

to apply the Anderson/Burdick framework and proceeds directly to


the
strict
scrutiny analysis.
In any event,
even
if the
Anderson/Burdick framework applied
(which it does not),
the
burden imposed on Correll's associational right is severe,
requiring the application of strict scrutiny, even under the
Anderson/Burdick approach. Therefore, the application of that
test would not affect the analysis herein.
45

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 46 of 65 PageID# 1224

1.

The Burden Imposed by Section 545(D)

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

to speech and association by voting

RNC Rules

and

RPV s

Rule

2016 Republican National Convention.^''

16(f)

(Am.

Filing

Compl.

of

at

in
the

SISl 22-23.)

Specifically, RNC Rule 16(c)(2), which is mirrored by RPVs Rule


16(f)

Filing,

requires

that

all

states

that

preference primaries on or before March 15,


delegates'

Rule 17(a)

(Joint

Ex.

1,

Rule

the

alternate

number

from that

of
state

Ex.

candidates

primary."
Section

2016 allocate their

p.

12;

Joint

Ex.

3) .

Moreover,

RNC

provides that "[i]f any state or any state Republican

party violates

allocate

presidential

votes proportionally at the 2016 Republican National

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

presidential primary election to determine the preference of the


The Declaration that Correll signed upon being selected as a
delegate also obligates him to vote in accordance with party
rules.
(Joint Ex. 5). Thus, compliance with Section 545(D) not
only forces Correll to violate party rules, but also prevents
him from performing his contractual obligation as a delegate.
46

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 47 of 65 PageID# 1225

voters, but chooses to select delegates by local convention, all

delegates to the national convention are bound to vote for the


candidate

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

reduction-by-half penalty of Rule 17(a)


votes

the

on

''winner-

with

RNC

delegation

Rule

to

the

and allowing Virginia's

to be allocated by the Convention in accordance with RNC

Rule 17 (b).^^ Thus,

Correll faces the unenviable choice of

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

participate in the 2016 Republican National Convention at all.


Supreme
facts.

Court

precedent

Section 545(D)

Amendment

rights.

To

clearly

creates a

First

of

the

freedom

interference

with

the

freedom

U.S.

severe burden on Correll'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

As Correll points out, ''no matter how the first-ballot votes


are allocated among the delegate[s]
...
in a
proportional
allocation 32 of the 49 Virginia delegates will cast votes that
violate Section 545(D)." (Pl.'s Reply, 15).

47

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 48 of 65 PageID# 1226

necessarily from the basic fact that a political party does not

exist separate and apart from its members.^


It is equally well-settled that 'Ma]

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

and the special protection it

represents

(N.D.

national

for,

which

v.

proposed

New

California

Comm.,

Nelson

with

the

our cases vigorously affirm the

process

2007)

U.S.

(2000)

preferences.'");
Fla.

produce

platform.''

Torres,

First Amendment

accords,

and to choose a candidate-selection

its

political

Elections

[and,

has a First Amendment right to limit

its membership as it wishes,

process

political party

party

party's
Supp.

ideology
2d

(or not

convention

^selects

1271,

and
1280

to associate)

delegates

is

very

Analogously, the National Convention does not exist separate


and apart from the delegates and party members who comprise it.
Bachur,
836
F.2d
at
841-42
(noting
that
"[d]elegates
for
practical purposes constitute the National Party they make its
rules, adopt its platform, provide for its governance, as well

as nominate candidates."). Thus, for purposes of this analysis,


there
is
no
meaningful
distinction
between
the
party's
associational

right

National Convention,

to

select

presidential

discussed further below,

rights to associate in doing so.


48

nominee

at

the

and the delegates'

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 49 of 65 PageID# 1227

near

the

words,

First Amendment

association

right's

core.'').

In other

the right of political association endows the party with

plenary discretion concerning the ''decisions about the identity


of,

and the process for electing,

its leaders."

489 U.S.

at

229.

Accordingly,

''a

political

party

may

ordinarily

decide

for

itself how delegates to its national convention will be chosen,


and

the

party

ordinarily

need

not

comply

with

purporting to restrict its options." Nelson,

528 F.

1277;

124

see

also La

Follette,

450

U.S.

at

state

laws

Supp.

(^'A

2d at

political

party's choice among the various ways of determining the makeup


of

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

citizen of the Nation regardless of their State of residence.").


These

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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 50 of 65 PageID# 1228

''an obviously intolerable result."

at 490. That is certainly

so where the state statute dictates how delegates must discharge

the most

important

duty of all

voting

for

candidates

and

does so in direct contradiction of the party rules.

The Supreme Court's decision in La Follette is particularly


instructive.

participate
member
450

to

in a

party primary without

or otherwise

U.S.

here,

Under Wisconsin's ''open primary" law,

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 state attorney general

the

the

results

party

Follette,

required Wisconsin's delegates to the national

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

had been selected in violation of the party's

The Supreme Court reversed,

an

asserting

the primacy of state law over the delegate selection rules.

at

in

even

rules.

reiterating its previous holding


50

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 51 of 65 PageID# 1229

in Cousins that a national party's delegate selection rules are

protected by the First Amendment right to freedom of association


and

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

an injunction requiring the Republican party to select

Ferency v.

could

Court

convention

Florida delegates based on a

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);

666 F.2d 1023

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

(rejecting "one person,

to party's delegate allocation formula).

51

of

(holding that a
to

the

an

open

national

primary

contravened party
Party,

525

F.2d

one vote" challenge

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 52 of 65 PageID# 1230

Decisional law,

therefore,

makes clear that Section 545(D),

which purports to govern the allocation and binding of delegates


in their voting in contravention of the national party rules
which

Correll

has

agreed

to

abide)

eliminate altogether Correll's

unless

First Amendment

the

Commonwealth

compelling

state

rights.

to

participate as

Section 545(D)

and,

threatens

imposes a severe burden on

demonstrates

interest

which

opportunity to

delegate at the National Convention,


Correll's

and

(by

that

in

the

doing

cannot survive

statute

so,

serves

is

narrowly

in

ensuring

tailored.

2.

Here,

that,

The Asserted State I n t e r e s t s

the

where

Commonwealth

political

election,

thereby

state

local

and

statewide

candidate,

funds

[sic]

party

and

and

the

this

will

the political party

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

(or one of its members)

subsequently cancel out this effort."

primary

(Def.'s Resp.

the

party's
does not

28).

The Supreme Court has rather clearly rejected substantially


identical

arguments.

justification

proffered

by

In

Cousins,

substantively

Defendants

here:

the

respondents

proffered

indistinguishable

that

52

the

State

has

from

that

compelling

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 53 of 65 PageID# 1231

interest in "protecting the integrity of its electoral processes

and

the

right

of

its

citizens

under

the

State

Constitutions to effective suffrage." Cousins,

and

419 U.S.

Federal
at

489.

The Supreme Court flatly disagreed, holding that:


[c]onsideration of the special function of
delegates to such a Convention militates
persuasively against the conclusion that the
asserted

interest

constitutes

compelling

state interest. Delegates perform a task of


supreme importance to every citizen of the
Nation
regardless
of
their
State
of
residence.

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.

qualifications and eligibility of delegates


to National Political Party Conventions were
left to state law ^each of the fifty states
could establish the qualifications of its
delegates to the various party conventions
without regard to party policy, an obviously
intolerable result.' Wigoda v. Cousins, 342
F. Supp. 82,
86
(N.D. 111. 1972). Such a
regime could seriously undercut or indeed
destroy the effectiveness of the National

Party Convention as a
engaged in the vital
Presidential
candidates

concerted enterprise
process of choosing

and
...

The

Vice-Presidential
Convention

serves

the

pervasive national interest in the selection


of candidates for national office, and this

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

(^MT]he State has a

Presidential

elections

v.
less

than

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 54 of 65 PageID# 1232

statewide or local

elections,

will

determined

be

largely

because the outcome of the

by

voters

beyond

former

the

State's

Follette

further

boundaries.

The

Supreme

Court's

holding

in

La

underscores the futility of the Commonwealth's argument.

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

state government elections).


In

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-

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 55 of 65 PageID# 1233

22.

Furthermore,

the

conclusion

primary

votes

complete

both Cousins and La Follette lead inexorably to


that

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

compelling state interest.


3. Narrow Tailoring
Because

advances
address

it

Defendants

have

compelling

whether

the

not

state

statute

demonstrated

interest,
is

is significant to note that

it

narrowly

that

is

Section

not

545(D)

necessary

tailored.

to

Nonetheless,

Defendants have tacitly conceded

the point by failing to offer any evidence or argument that the


statute is narrowly tailored.

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

judgment on that score on his behalf on Counts I and 11.^^

As

previously

explained,

neither

Count

IV

actionable count in its own right. Rather,


state prayers for a specific form of relief.
55

nor

Count

V is

an

both counts merely


Thus, judgment will

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 56 of 65 PageID# 1234

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,

plaintiff must demonstrate:

(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).

Correll has established each of these requirements.

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

irreparable injury'') . Moreover,


to compensate

"[t]he

injury."

Bergland,

of

that

427

993,

rights

unquestionably

U.S.

995

Amendment

at

(4th

353;

Cir.

constitute

see
1978)

per

se

''monetary damages are inadequate


First Amendment

637 F.3d 291,

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

of injunctive relief will be addressed in the following section.


56

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 57 of 65 PageID# 1235

Joelner

v.

Vill.

Of

Wash.

Park,

378

F.3d

613,

620

(7th

Cir.

2004)) .

Having determined that Correll has prevailed on the merits


of his First Amendment claims on Counts I

and II,

follows that he has shown irreparable injury.

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

Insufficiency of Legal Remedies

rights,

and

its enforcement will deprive of a plaintiff of those rights,

the

threat

to

state

statute

enforce

inhibits

that

constitutional

statute

constitutes

"'a

continuing

unlawful restriction upon and infringement of the rights" of the

plaintiff

as

practical,
Terrace

rights);

to

F.

loss
Supp.

end

he
or

Thompson,

has

of

''no

remedy

adequate

263

U.S.

statute's

Legend Night Club,

F.3d at 620)
the

which

efficient

v.

injunction

to

as

the

197,

ongoing

at

law

which

remedy

215

(1923)

inhibition

637 F.3d at 291

in

of

is

as

equity."
(upholding

due

process

(citing Joelner,

378

(''monetary damages are inadequate to compensate for


First Amendment

2d 855,

866

(S.D.

freedoms");

Ohio 2010)

Brinkman v.

Budish,

692

(noting that there "are no

available remedies at law that are adequate to compensate for a


loss

of

First

Amendment

rights.").

57

The

absence

of

effective

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 58 of 65 PageID# 1236

remedies at law makes a permanent injunction appropriate in this


case.

3.

The
Correll.

permitted

Balance of Equities

balance

of

equities

also

weighs

heavily

in

favor

of

Defendants will suffer absolutely no harm if Correll is

to

vote

in

accordance

with

the

RNC

Rules.

Indeed,

Defendants explicitly recognize this reality in their brief:


In

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

State's investment in conducting a primary,


the voters [sic] investment in voting, and
the
State's
interest
in
protecting
the

meaning and integrity of the presidential


primary electoral process are all respected
so long as the delegates are bound either
proportionally or winner-take-all.

(Def.'s

Resp.

18)

(emphasis

added).

And,

in

any

event.

Defendants are ''in no way harmed by issuance of an injunction

that

prevents

restrictions."

the

state

from

Legend

Night

Club,

enforcing
637

F.3d

unconstitutional
at

302-03

(citing

Joelner, 378 F.3d at 620). Thus, the balance of equities weighs


heavily in Correll's favor.
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

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 59 of 65 PageID# 1237

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

that bear the most directly on private rights[.]");


637

261

U.S.

interest

observance of all the constitutional guarantees,

Club,

Newsom

Legend Night

V.

this

Bason,
factor

303
also

weighs in favor of granting an injunction.

III.

LACHES DOES NOT BAR CORRELL'S CLAIM

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

precludes relief when a plaintiff has delayed bringing suit to


the detriment of the defendant." Perry v.

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

demands that those who would challenge the legal sufficiency of


administrative

decisions

concerning

time

sensitive

public

. . .

At common law, the expression was that a party was "in


laches." Common usage today is to plead a bar by the "doctrine
of

laches."

In

Fed.

R.

Civ.

P.

"laches."
59

8(a),

the

defense

is

simply

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 60 of 65 PageID# 1238

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

in the context of an impending vote.").


''Laches
diligence

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

unreasonably in filing suit." White v.


(4th

elements:

5285819,

(internal citations omitted). The

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

909 F.2d 99,

102

1260

(1991).

"An

inexcusable delay can only occur after the plaintiff discovers


or should have discovered the facts giving rise to his cause of

action."

Perry,

840

F.

Supp.

prejudice to the defendant,


on

the

part

of

the

2d

at

953.

The

second

element,

"is demonstrated by a disadvantage

defendant

in

asserting

or

establishing

claimed right or some other harm caused by detrimental reliance

on the plaintiff's conduct." White,


to

the

Tobacco

958

defendant
Workers

(4th

Cir.

must

be

Int'l

Union

1971) .

"The

result
v.

909 F.2d at 102.


of

the

Lorillard

greater
60

the

Prejudice

plaintiff's

Corp.,

448

delay,

the

delay.

F.2d

less

949,

the

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 61 of 65 PageID# 1239

prejudice

954.

required

Defendants

requirement,

show

and

laches.''

Intervenors

Perry^

have

840

F.

Supp.

established

2d

the

at

delay

but not the prejudice requirement.

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

position of delegate and was selected on April 16,

2016.

Correll

then waited ten weeks

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

the matter by contacting


Board

of

Elections.

Understandable though that may be,

delay because,

is

the

because

he

Commonwealth's

(Pl.'s

Reply

23-24).

it does not justify Correll's

having ''chosen the non-litigation path," Correll

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

obtained sufficient presumptive delegates to lock a presumptive


first-ballot

victory,"

because

"any vote

that

Correll

cast

for

Trump on that ballot would have been inconclusive" unless Trump


61

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 62 of 65 PageID# 1240

was the presumptive nominee.


simply

inconsistent

conflict between

basis

of

whether

will

Section

Correll's

Correll became a
of

with

not

the

be

(Pl.'s Reply 23).

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

delegate and is entirely unrelated to the issue


first

ballot

at

''conclusive."

the

National

Therefore,

Convention

Correll

has

will

failed

or

to

justify his delay in bringing this action.


The

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

consideration for the Commonwealth's expenditure of resources in

holding

the

primary."

(Def's

Resp.

12-13).

Defendants

assert

that such relief would undermine their "''legitimate governmental

interest

in

process[.]'"
202-03).

ensuring

the

(Def.'s Resp.

Defendants

also

fairness
13)

the

party's

(citing Lopez-Torres,

contend

great prejudice to the public -

of

that

Correll's

specifically,

62

nominating
552 U.S.

delay

at

"causes

the more than one

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 63 of 65 PageID# 1241

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

and administrative resources

1,

presidential

2016),

ballots had already been cast. Therefore,


avoided

of

he did not have standing to bring this action

had already expended the

have

primary."

neither

Section

545(D),

As of April 16,

not

that

Correll

to

before he was selected.

primary

is

conduct of delegates elected to

National

necessary

in

because

identified

pursuing

therefore

2016.

the

who

13)

However,

prejudices

voters

and

preference

the

voters'

the Commonwealth would

primary

even

if

Correll

had

brought this action on the first day he had standing to do so.


Accordingly,

any prejudice that

Defendants have suffered cannot

For that reason. Defendants' repeated contentions that Correll


should have brought this action before the March 1, 2016 primary
are
simply incorrect.
Correll could not
have challenged a
statute that allegedly impinges on the First Amendment rights of
delegates when he was not a delegate.

63

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 64 of 65 PageID# 1242

be

traced

to

Correll's

delay,

and

the

affirmative

defense

of

theory

or

laches does not apply.

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.

is directed to Correll's RNC Rule

which

the

Court,

jurisdiction to adjudicate.

The

as

discussed

Intervenors

38

earlier,

do not assert

prejudice so long as Correll's theory is limited to the conflict


between

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

permanently enjoined from enforcing Va. Code 24.2-545(0).


There is no need to enter judgment on Counts IV or Count V

because
relief

they
can

be

are

prayers

granted.

for

relief,

Correll

put

on

not
no

claims

evidence

upon
as

to

which
Count

In any event, allowing Correll to vote as required by the


National
Rules
and RPVs
16(f)
Filing,
which mandate that
Virginia's delegates vote proportionally on the first ballot in
accordance

with

the

results

of

the

primary

election,

will

not

result in the prejudice that Defendants fear. Indeed, Defendants


acknowledge that, ''so long as the delegates are bound pursuant
to the National Republican Rules and the RPVs decision [to
allocate
votes
proportionally],
no
evil
results
in
the
Commonwealth." (Def.'s Resp. 18).
64

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 65 of 65 PageID# 1243

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

Date: July JL , 2016

65