United States District Court, E.D. Virginia, Richmond Division
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.
E. Payne Senior United States District Judge
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.
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).
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
(''Defendants''), the motion was granted and
the additional delegates ("the
Interveners")were permitted to intervene. (ECF No. 29).
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.
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
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,
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.
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. (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) .
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).
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
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.
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).
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.
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)
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 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) .
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).
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),
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
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).
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).
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).
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
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
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 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
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.
545(D) AND CORRELL'S THEORIES OF RELIEF
statute at issue, Section 545(D), provides in relevant part
[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.
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
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).
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
(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
(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.
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.
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
test for standing is well-settled. As explained by the
[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
Susan B. Anthony List, 134 S.Ct. at 2342 (internal
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
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
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.
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).
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."). 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.
final requirement for pre-enforcement injury,
"'credible threat of prosecution, '' is also
satisfied in this case. The subjective chill of a ...