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Correll v. Herring

United States District Court, E.D. Virginia, Richmond Division

July 11, 2016

Carroll Boston Correll, Jr., On behalf of himself and others similarly situated, Plaintiffs,
Mark R. Herring, In his official capacity as Attorney General of the Commonwealth of Virginia, ., Defendants.


          Robert E. Payne Senior United States District Judge

         This matter is before the Court following a bench trial on the merits of the FIRST AMENDED VERIFIED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (the "Amended Complaint7') (ECF No. 20) filed by Carroll Boston Correll, Jr. ("Correll"). For the reasons, and to the extent, set forth below, judgment including declaratory and injunctive relief will be entered for Correll.


         Correll, a Virginia delegate to the Republican National Convention, filed a VERIFIED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF ("Complaint") (ECF No. 1) on June 24, 2016. The original Complaint posited a class consisting of Republican and Democrat delegates to the parties' respective national conventions. (Compl. ¶¶ 36-41). Subsequently, Correll filed the Amended Complaint, which does not include Democrat delgates in the putative class. The Amended Complaint now includes allegations purporting to represent a class of all Virginian delegates to the 2016 Republican National Convention. (Am. Compl. ¶¶ 36-41).

         Several other Virginian delegates to the 2016 Republican National Convention subsequently moved to intervene as defendants. (ECF No. 22). Over Correll's objection, though upon agreement of the original defendants[1] (''Defendants''), the motion was granted and the additional delegates ("the Interveners")[2]were permitted to intervene. (ECF No. 29).

         There has been no motion for class certification and, given the position of the Intervenors, it is doubtful that even the modified class identified in the Amended Complaint could be so certified. Accordingly, the claims that were tried, and upon 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 § 24.2-545(D) ("Section 545(D)") violates Correll's First Amendment right to free political speech, more specifically his individual right to "vote for a presidential nominee at a party's nominating convention, " "by stripping delegates" to the 2016 Republican National Convention "of their freedom to vote their conscience, or to vote consistent with party rules." (Am. Compl. ¶¶ 43-45). Count II alleges that Section 545(D) violates Correll's First Amendment rights of free association, again "by stripping delegates" to the 2016 Republican National Convention "of their freedom to vote their conscience, or to vote consistent with party rules." (Am. Compl. ¶¶ 51-52). Count III alleges that Section 545(D) "exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States" and cannot be enforced. (Am. Compl. ¶¶ 59-60). Count IV and Count V present prayers for forms of relief, rather than claims upon which relief may be granted.

         Immediately after filing his Complaint, Correll filed a Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 4). During a telephone conference, the parties shortly thereafter agreed to consolidate for hearing and decision the request for a restraining order and the request for a preliminary injunction. (Tr. Jun. 27, 2016, ECF No. --) . The Court set the motion for an evidentiary hearing and oral argument on July 7, 2016. (Order, ECF Nos. 11, 18). At the beginning of that hearing, the parties agreed that, pursuant to Fed.R.Civ.P. 65(a)(2), the Court should further consolidate the hearing on the preliminary injunction with a bench trial on the merits. (Tr. Jul. 7, 2016, ECF No. 42, 164:12-165:5).

         At trial, the parties presented a Joint Stipulation (ECF No. 40) and ten Joint Exhibits. Correll presented an additional set of exhibits consisting of minutes from earlier Republican National Conventions. Correll and the Intervenors each presented an expert witness to testify about the Rules of the Republican Party that govern the proceedings of the national party ("RNC Rules''), particularly about RNC Rules 16, 17, 37, and 38. The experts also testified about certain filings that the Republican Party of Virginia ("RPV") made pursuant to RNC Rule 16. At the end of the hearing, counsel presented argument and the case was submitted for decision on the merits.


         At trial, Correll and the Intervenors each presented expert testimony to support their contentions on the meaning, present force, and effect of RNC Rule 16 and of RNC Rules 37 and 38. Correll offered the expert testimony of Erling "Curly" Haughland ("Haughland"), who presently serves as a member of the Republican National Committee, will serve as a delegate to the 2016 Republican National Convention, and has served as a delegate to past Republican National Conventions. (Tr. Jul. 7, 2016 13:4-30:5). Haughland has studied the history of the RNC Rules as far back as 1880, and has co-authored an online book positing the thesis that the RNC Rules allow delegates to vote their consciences at any Republican National Convention.[3] (Tr. Jul. 7, 2016 13:4-30:5). The Intervenors offered the testimony of Jesse Binnall ("Binnall"), a certified professional parliamentarian who has worked with the Republican rules since 2012, has advised Republican convention delegates at the national and local levels about those rules, and has advised Republican presidential candidates about those rules. (Tr. Jul. 7, 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 been interpreted to allow delegates to vote as they please. (Tr. Jul. 7, 2016 32:13-33:16, 44:10-53:7). Haughland also opined that RNC Rule 16 does not control voting. (E.g., Tr. Jul. 7, 2016 59:24-63:21). Binnall took the view that RNC Rules 37 and 38 do not permit "conscience voting" and that RNC Rules 16(a)(1) and (2) together with RNC Rule 16(c)(2) govern the allocation and binding of delegates when voting. (Tr. Jul. 7, 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. 7, 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.[4]

         As to Rule 16, the Court credits Binnall's testimony because it is logical and supported by the text of the rules. Thus, the Court finds that RNC Rule 16 is in effect presently and that it controls the allocation and binding of delegates as to their voting at the convention. Additionally, Haughland's views were significantly undermined by the Defendants' impeachment using passages from Haughland & Parnell's publication (e.g., Tr. Jul. 7, 2016 82:10-93:3), 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 than voting for the candidate who garnered the most votes as required by Section 545(D), this would be tantamount to Correll voting his conscience. (Tr. Jul. 7, 2016 225:5-6). Counsel for the Intervenors also agreed that the case could be resolved by enjoining the enforcement of Section 545(D) to allow Virginia's delegates to vote 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, singly or jointly, permit unrestricted conscience voting. (Tr. Jul. 7, 2016 215:15-19, 216:22-220:5).

         At the end of the 2012 Republican National Convention, the party issued a set of rules, some of which were to be effective immediately and some of which were proposed for possible adoption at the next convention in 2016. Specifically, on August 27, 2012, the 2012 Republican National Convention adopted the "Rules of the Republican Party" ("RNC Rules"). Those rules were amended four times; the current form of the rules is in the record at Joint Exhibit 1. On this much, the parties agree. However, the parties have radically different views about the meaning and present force of the RNC Rules.

         Based on the text of the RNC rules and on Binnall's testimony, the Court finds that RNC Rules 13 to 25 are presently in force regarding convening of the 2016 Republican National Convention, including delegate allocation and the binding of delegate votes. (Tr. Jul. 7, 2016 135:8-136:2) .[5] Further, the record shows that RNC Rules 26 to 42, according to Rule 42 itself, are temporary rules for use in the 2016 Republican National Convention[6] and have no force unless they are adopted by the assembled delegates at that convention, which will take place from July 18-21, 2016. (RNC Rules 22; Tr. Jul. 7, 2016 36:2-39:7, 135:8-136:2) .[7]

         RNC 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." (Joint Ex. 1, p. 12). According to RNC Rule 17(a), a "state or state Republican Party" that violates Rule 16(c)(2) will have its delegation reduced by 50%. (Joint Ex. 1, p. 15).

         RNC Rule 16(f) (1) provides that Republican state committees must adopt rules to govern their primaries by October 1, 2015. (Joint Ex. 1, p. 15) . On September 19, 2015, the Republican Party of Virginia ("RPV") adopted a resolution to hold a primary: (1) on March 1, 2016; (2) in which voters would vote directly for presidential candidate, not for delegates; and (3) which, as required by RNC Rule 16(c)(2), would allocate delegates proportionally according to the primary votes received by each candidate, with all the delegates "in one pot." (Joint Ex. 2; Joint Ex. 3, pp. 4, 8). Pursuant to RNC Rule 16(f), RPV timely transmitted this information to the Republican National Committee ("RNC"). (Joint Ex. 3). RPV s Rule 16(f) Filing also included a sample "Declaration and Statement of Qualifications" ("Declaration") that delegates would be required to sign. (Joint Ex. 3, p. 14). That Declaration included a 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. 3, p. 14; Joint Ex. 5) (referencing the September 19, 2015 resolution providing for proportional division of delegates). RPV s Rule 16(f) Filing also contained an excerpt from Virginia's elections code, including the text of Section 545(D).

         The primary election in which Virginia voters expressed their candidate preferences was held on March 1, 2016. The Virginia Department of Elections certified that candidate Donald Trump won the most votes in the primary election, with a plurality of 34.80 percent of votes. (E.g., ECF No. 25, Ex. 2, 4). Marco Rubio received 31.98 percent, Ted Cruz 16.69 percent, John Kasich 9.54 percent, and Ben Carson 5.87 percent; all other candidates received less than one percent of the vote. (E.g., ECF No. 25, Ex. 2, 4-5).

         At a local convention held on April 16, 2016, Correll was selected as a delegate to the Republican National Convention. (Joint Stip., ECF No. 40, ¶ 17; Joint Ex. 6). Correll signed a copy of the "Declaration and Statement of Qualifications'7 that had been included in the RPV's Rule 16(f) Filing. (Def.'s Mem. in Opp. to Mtn. for Temporary Restraining Order and Preliminary Injunction, ECF No. 25, 23 n.14) ("Def.'s Resp."). In doing so, Correll agreed to the requirements of RNC Rule 16(c)(2).

         Correll pleads under oath that he "believes that Donald Trump is unfit to serve as President of the United States and that voting for Donald Trump" on the first ballot at the 2016 Republican National Convention, as required by Section 545(D), "would therefore violate Correll's conscience." (Am. Compl. ¶ 21) . Accordingly, Correll swears that he "will not vote for Donald Trump on the first ballot, or any other ballot, at the national convention." (Am. Compl. ¶ 21).

         "Concerned that he could face criminal penalties if he cast his first-ballot convention vote for a candidate other than Donald Trump, " Correll on May 25, 2016 contacted the Virginia Department of Elections "to request an advisory opinion regarding the application of Section 545(D)." (Am. Compl. ¶ 25; Joint Stip. ¶ 21, Joint Ex. 7) . The Department of Elections referred Correll, a resident of the City of Winchester, to Marc Abrams ("Abrams"), the Commonwealth's Attorney for the City of Winchester. (Am. Compl. ¶ 25; Joint Stip. ¶ 21; Joint Ex. 7). On June 2, 2016, Correll contacted Abrams, 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, as you are aware the first rule of statutory construction dictates that we are to interpret words of a statute using the ordinary meaning of the language in 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).[8] On June 8, 2016, Correll contacted the Chairman of the Electoral Board for the City of Winchester to request an advisory opinion on the application of Section 545(D); the Chairman instructed Correll to contact the Department of Elections. (Joint Stip. ¶ 24). On the same day, Correll again contacted the Department of Elections to request an advisory opinion on the application of Section 545(D); the Department did not respond prior to initiation of this litigation. (Joint Stip. ¶¶ 25-26). After Correll brought suit, Abrams and Cynthia E. Hudson, Chief Deputy Attorney General of Virginia ("Hudson"), expressed that they would not prosecute Correll for not voting for Donald Trump at the 2016 Republican National Convention. (ECF No. 38) ("I believe 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) ("I do not intend to prosecute Mr. Correll or any other Republican delegate for their conduct at the 2016 Republican National Convention in Ohio").

         These facts form the basis for the claims asserted in Counts I and II of the Amended Complaint, and provide the factual context for the Court's legal conclusions.


         The statute at issue, Section 545(D), provides in relevant 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 shall be deemed elected by the state party unless the party has determined another method for allocation of delegates and alternates. If the party has determined to use another method for selecting delegates and alternates, those delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote.

Va. Code § 24.2-545(D) (emphasis added). Violation of Section 545(D) is a Class 1 misdemeanor that subjects an offender to "confinement in jail for not more than twelve months and a fine of not more than $2, 500, either or both." (Am. Compl., ECF No. 20, ¶ 15; Answer, ECF No. 24, ¶ 15) (relying on Va. Code §§ 24.2-18.2-11(a); 24.2-1017). Section 545(D) has been part of the Virginia Code since 1999. SB 1287 (Va. 1999). At the outset of the case, Correll presented two related but independent theories of relief.

         Correll's first theory argued that RNC Rule 38 - on its own or in conjunction with RNC Rule 37 - guarantees that Correll, as a delegate to the 2016 Republican National Convention, is free to vote his "conscience" ("that is, [to vote] for the person ... he believes to be the best candidate"). (Pl's Mem. in Supp. of Mtn. for Temporary Restraining Order and Preliminary Injunction, ECF No. 5, 4) ("Pl's Mem."). According to Correll, Section 545(D) is unconstitutional because it trenches on his First Amendment right to vote his conscience pursuant to RNC Rules 37 and 38. (Pl's Mem. 2-3, 8-9; Pl's Reply in Supp. of Mtn. for Preliminary Injunction, ECF No. 36, 5-10 ("Pl's Reply")). RNC Rule 37 provides, 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 by the chairman of that delegation, the chairman of the convention shall 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 states. The result shall then be recorded in accordance with the vote of 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 a rule or law under which a delegation at the national convention casts its entire vote as a unit as determined by a majority vote of the delegation.

(Joint Ex. 1, p. 21).

         Correll's second theory argued that delegates to the Republican National Convention have a right to vote in accordance with the rules promulgated by the national Republican Party (as implemented by the state Republican parties) and that the rules of the national Republican Party require that Virginia's delegates vote proportionally based upon the percentage of votes that candidates received during Virginia's March 1, 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 in a primary, caucuses, or a state convention must be used to 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 a ballot in a statewide election and are elected directly by primary voters.

(Joint Ex. 1, p. 12) (emphasis added). Next, RNC Rule 16(a)(2) requires that, at the convention, each delegate's vote is to be announced and recorded in accord with "the delegation's obligation under these rules, state law, or state party rule." Id. Rule 16(c)(2) 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.

(Joint Ex. 1, p.2) (emphasis added. According to Correll, Section 545(D) is also unconstitutional because it trenches on those First Amendment associational rights. (Pl's Mem. 8-9).[9]


         Before turning to the merits, it is necessary to resolve the jurisdictional challenges raised by the Defendants and by the Intervenors. After resolving jurisdictional challenges, this opinion addresses the merits of the case and the request for injunctive relief. Finally, the Court addresses and rejects the contention that Correll's prayer for injunctive relief is barred by the equitable doctrine of laches.


         "Article III of the Constitution limits the jurisdiction of federal courts to 'Cases' and 'Controversies.'" Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014) (internal quotations omitted); U.S. Const., Art. III, § 2. Defendants and Intervenors raise two case-or-controversy doctrines: standing 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 doctrine of standing gives meaning to these constitutional limits 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. Injury

         In a typical case alleging past injury, "[a]n injury sufficient to satisfy Article III must be 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); see also, e.g. Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), as revised May 24, 2016. However, a somewhat different formulation of injury applies in the pre-enforcement context. Under this approach, xx[a]n allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." 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 render the threatened enforcement sufficiently imminent. Specifically, we have held that 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. at 2342 (internal citations omitted) (emphasis added). This is especially so where there is a serious prospect that free speech will be chilled and that a plaintiff s First Amendment 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 a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society7 s interest in having the statute challenged.

Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984) (emphasis added); see also Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013). Accordingly, "[i]n First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of 'self-censorship, ' which occurrs when a claimant is chilled from exercising h[is] right to free expression." Cooksey, 721 F.3d at 235.

         In sum, a plaintiff may bring a pre-enforcement suit when he (1) "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, " but (2) that conduct is "proscribed by a statute, " and (3) "there exists a credible threat of prosecution" under that statute. Susan B. Anthony List, 134 S.Ct. at 2342 (internal quotations omitted).

         As for the first and second requirements, Correll has proven that he intends to engage in First and Fourteenth Amendment-protected conduct at the 2016 Republican National Convention, and that this intended course of conduct is circumscribed by Section 545(D). (Am. Compl., ¶¶ 21, 42-55) ("Correll will not vote for Donald Trump on the first ballot or any other ballot.").[10] Although early First Amendment standing law taught that it is insufficient to state that a person "desires" to engage in protected activity, e.g., Younger v. Harris, 401 U.S. 37, 57-59 (1971) (Brennan, J., concurring), more current decisions plainly acknowledge that it is sufficient to plead intent to engage in specific conduct proscribed by the statute in question, regardless of whether a plaintiff has engaged in such conduct in the past. E.g., Susan B. Anthony List, 134 S.Ct. at 2343 ("COAST has alleged that it previously intended to disseminate materials criticizing a vote ... and that it 'desires to make the same or similar statements' Because petitioners' intended future conduct concerns political speech, it is certainly 'affected with a constitutional interest'") (internal citations omitted); North Carolina Right to Life v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) ("NCRL") ("NCRL has stated that it wants to distribute these guides in the future, and would do so but for its fear that it would fall within" the operative statute) (emphasis added). Because Correll has established intent to commit a specific act that is circumscribed by the statute in question, he satisfies the first two requirements for pre-enforcement review.

         The final requirement for pre-enforcement injury, "'credible threat of prosecution, '' is also satisfied in this case. The subjective chill of a ...

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