Victory for Correll in Virginia Lawsuit; Delegates Can’t Be Punished for Conscience Votes

By Bob Bennett and Dawn Bright

As the Republican convention looms, roiled by a growing revolt of delegates who reject Donald Trump, a federal judge has ruled in favor of Carroll “Beau” Correll, a Virginia delegate to the Republican convention, in Correll v. Herring. Mr. Correll had contended: in Count 1 of his action that Virginia Code § 24.2-545(D) violated his First Amendment right to free political speech, and in Count 2, that it violated his First Amendment rights of free association – “by stripping delegates” to the 2016 Republican National Convention “of their freedom to vote their conscience, or to vote consistent with party rules.”


Although Donald Trump won the state, Correll asserted in an interview that he could not vote for him on the first ballot or any other ballot at the convention. “Donald Trump has shown through his words and his actions that he is eminently unqualified for office,” Correll said. He was particularly put off by Trump’s shape-shifting policies.


It’s only logical that delegates, seeing that a winner of the primaries has damaged himself by rash statements or is untrue to party principles, should be able to use their judgement – or why have human delegates? Even today, his orientation as a closet Democrat was underscored when it was revealed in the WSJ that Trump had said, in 2008, referring to Hillary Clinton:


“I know her and she’d make a good president or a good vice president.” He added, “A lot of people think that a Clinton/Obama or Obama/Clinton pairing would be a a dream ticket in November.”


“Trump will lose in a landslide to Hillary Clinton,” said Correll. “He’s outraised 4 to 1. He’s got a skeleton staff. He doesn’t even have good data.”


Under Virginia law (and similar law in 19 other states), delegates who were bound to Trump but refused to vote for him could be prosecuted. Judge Robert E. Payne ruled in Correll’s favor on the two counts and the Commonwealth was permanently enjoined from enforcing Va. Code § 24.2-545(D).


The decision clarifies that a delegate’s vote at a national convention is an exercise of First Amendment rights, and should give at least a measure of political cover to other delegates who seek to vote their conscience in 2016.


“Today’s decision should give comfort to all delegates that they cannot be punished for voting their conscience at the Republican National Convention,” said David Rivkin Jr., a constitutional attorney representing Correll.  “The Court’s decision follows more than 40 years of precedent in firmly rejecting Donald Trump’s legal opinion that delegates are obligated by law to vote for him. The law is clear: delegates enjoy the same freedom of speech and freedom of association that the First Amendment guarantees to all Americans,” Rivkin added.


Eric O’Keefe, President of Delegates Unbound, feels that this victory should have a chilling effect on any of the 19 other states with similar laws, that may seek to punish delegates for exercising their First Amendment rights at the convention.


“The right of delegates to vote their conscience won today,” he declared. “The Trump campaign joined forces with the Democratic party to strip delegates of their authority over the presidential nomination process, in opposition to the entirety of Republican Party history and the Constitution.” [Many Democrats voted for Trump in states with open primaries.]


He felt it was significant that Jesse Binnall, an expert witness, was paid $450 an hour by the Trump campaign for lengthy testimony in defense of the law. He theorized that the Trump camp is “not comfortable that they can get the votes without the threat of legal action, which is both revealing and appalling.”


Eric O’Keefe is no stranger to the battle to defend First Amendment rights: he is noted for taking a leading role in fighting the runaway Wisconsin John Doe investigations, which targeted Governor Walker and 29 conservative groups that joined in the battle over Walker’s union reforms. The free-wheeling investigations featured pre-dawn raids of targets’ homes to seize computers and files and subpoenas demanding names of donors to nonprofit groups – without naming any specific allegations.


The second investigation was conveniently timed to coincide with Governor Walker’s reelection campaign. In a piece on the probes, The Wall Street Journal said:


“The subpoena demand for the names of donors to nonprofit groups that aren’t legally required to disclose them is especially troubling. Readers may recall that the Cincinnati office of the IRS sent the tax-exempt applications of several conservative groups to the ProPublica news website in 2012.”


Mr. O’Keefe successfully sued the prosecutors, arguing that the investigation was used to shut down conservative speech and therefore violated the targets’ First Amendment rights. O’Keefe’s attorney in the action was David Rivkin, who some two weeks ago signed on to represent Beau Correll, in Correll v.Herring.


Mr. O’Keeefe worked with Curly Haugland, who’s long fought for delegates’ rights to vote their conscience, to bring out Haugland’s book “Unbound,” which explains the history and basis for those rights. It’s being distributed to all delegates.


O’Keefe was interviewed on the topic by The Journal’s Kim Strassel in “The Case for a Really Open GOP Convention,” and co-authored, with David Rivkin, a WSJ op-ed titled, “Release the Delegates.” Mr. Correll read the piece, called O’Keefe, and they, with David Rivkin, developed a strategy to address punitive laws, in 20 states, against convention delegates’ voting their consciences.


The Trump campaign, using typical Trumpian rhetoric, hailed the decision as a Trump victory in a press release:


Delegates Remain Committed to Donald J. Trump; Anti-Trump Effort Dealt Crippling Blow


Senior United States District Judge Robert E. Payne today ruled in favor of Trump campaign delegates who had argued – in line with overwhelming public opinion – that RNC delegates must follow election results and that delegates cannot be stolen at the national convention.


Specifically, the Court found that RNC Rule 16, which binds delegates based on their election results, “is in effect presently and that it controls the allocation and binding of delegates as to their voting at convention.”


The ruling does indeed state that “RNC Rule 16 is in effect presently,” but Mr. Haugland, Mr, O’Keefe and others logically contend that the rule is only in effect until the inception of the convention; they cite the Preamble of the Rules:


The following be and hereby are adopted as The Rules of the Republican Party, composed of the rules for the election and government of the Republican National Committee until the next national convention… [Emphasis added.]


There is also a distinct possibility that the rules, particularly Rule 16, will be changed or eliminated by the Rules Committee, which meets Thursday (7/14) and Friday (7/15). So that part of the judge’s ruling cannot be seen as binding the delegates.


Rule 16 is not part of the convention rules, Mr. O’Keefe declares; he sees the RNC’s attempt to claim otherwise as a power grab. The key part was passed by the RNC in the spring of 2013, after the 2012 convention. That, he says, “makes the RNC senior to the convention.” Delegates at the convention are supposed to approve all rules.


The RNC does not trust the delegates, he says; it feels they are too conservative. The mission of O’Keefe and Rivkin, Kendal Unruh and the other freedom fighters is “to educate the delegates and have them “reclaim control of the party from the RNC…and have the party governed by the delegates for the next hundred years.”