Saturday, June 25, 2016

On the Federal Lawsuit to Unbind Virginia Delegates

A new front has opened in the late-stage, intra-party battle over the Republican Party nominating Donald Trump in Cleveland. Those against the New York tycoon's nomination now have a multi-pronged approach that stretches beyond pushing for changes through the Convention Committee on Rules to now include legal action. A lawsuit has been filed in federal court by a Virginia delegate, Beau Correll, seeking relief from prosecution under Virginia code should he not vote for Trump at the convention.

There are advantages to allowing a convention of delegates to set the rules that will guide them as the Rules of the Republican Party allow. It grants the group the ability to tailor rules to suit a given convention at a given time and place. However, there are drawbacks to this approach as well. This lawsuit is one of them. The complaint the plaintiff brings in this case is expansive, but it boils down to a problem with the uncertainty of the rules that will govern the 2016 convention. If it was certain at this time -- that is, if the Republican Party had a locked-in set of rules -- that Rule 16(a)(2) was going to be in effect in Cleveland, then this case would be moot. There would literally be no potential for injury. In this instance injury is prosecution in Virginia for not following the candidate binding at the national convention as laid out in state law.

Even if the delegate voted contrary to how they were bound and even if the delegation chair from their state called out that "improper" vote in the tally, the secretary of the convention is charged under the current Rule 16(a)(2) with not recognizing that vote and announcing and recording it as bound. One could counter that that delegate vote was cast and contrary to the binding. In the sequence, that offending act according to Virginia state law precedes the secretary of the convention not recognizing it. The problem there is that there is no one at the convention from the Virginia State Board of Elections to say, "Beau Correll didn't vote according to how he was bound."

Furthermore, procedurally, the delegation chair does not call out individual votes. He or she announces the tally from the state. The bind breaker would not be known, then, unless there was a public poll (not a secret ballot) of the delegation by the chair of the delegation (and either the chair or another delegate comes forward with the revelation that someone has broken their bind). However, there is no procedure for this sort of voting in Republican Party of Virginia rules. Under those state party rules, there is no need for such a vote or poll of the delegation. Those results are already locked in based on the results of the March 1 presidential primary in the state.

All that is laid out in the Declaration and Statement of Qualifications that all delegate candidates in Virginia had to submit to run for delegate vacancies in the first place. Here is the important third and final paragraph from that form:
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. I further acknowledge that all costs associated with my candidacy and potential service as a National Delegate Alternate are my own responsibility. [Emphasis is FHQ's]
Now, the language here does leave open the notion that Virginia delegates will vote at the convention. Yet, that vote on the presidential nomination is bound based on the results of the primary under state party resolution and not state law. That is an important distinction because this lawsuit is being brought against the penalties in state law and not state party rules. State party actions bind the Virginia delegates.

What is missing is clear guidance from the party as to how the delegation chair is to behave at the convention. If the chair takes the vote in the primary as guide, then there is no need for a poll of the delegates. By extension that means that there is no potential for rogue action on the part of a delegate, no discovery of it and thus no violation of the state law. But if a vote is held -- and it would have to be public and/or someone from the Virginia State Board of Elections (or some representative from the state) would have to be there at the time of the vote -- then the potential exists for a violation of state law.

The Republican Party of Virginia has most of its bases covered on this one; that it is the governing authority over the process in Virginia and not state law. But it is not air-tight. The if associated with the actions of the delegation chair cited above is part of that. However, there is also the matter of state law versus state party rule/bylaw/resolution. The Rules of the Republican Party -- Rule 16(b) -- gives precedence to state party actions over state law. Yet, since the rules are not set in stone, and will not be until the convention in Cleveland, that cover is not officially there. Unlike Rule 16(a)(2), though, Rule 16(b) is not controversial and is likely to be carried over by the 2016 convention.

Though the complaint is long, this lawsuit essentially amounts to those two questions. The rest of it is just a series of distractions. State law simply is not the guiding force over delegate selection and allocation in Virginia, though there is the potential for prosecution on the grounds of violating the binding established in that law. Decided narrowly, a federal court could deem the state penalty unconstitutional. But the Republican Party of Virginia has measures in place to bind the delegates without that. That is an in-house, intra-party battle the courts have generally been unwilling to weigh in on, leaving it up to the party to settle. And the matter will be settled at the convention in Cleveland, starting with the Convention Committee on Rules.

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