Virginia Can't Make Republican Delegate Vote for Trump

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By Bernie Pazanowski

July 12 — A Virginia law that requires delegates to national political party conventions to vote on the first ballot for the candidate who won the state primary violates the First Amendment, the U.S. District Court for the Eastern District of Virginia held July 11 ( Correll v. Herring, 2016 BL 222015, E.D. Va., No. 3:16CV467, 7/11/16 ).

The interest Virginia has in upholding the integrity of its primary system doesn't outweigh the First Amendment rights of political parties and their delegates, Judge Robert E. Payne wrote in the opinion.

The court enjoined enforcement of the law against Republican delegate Carroll Boston Correll Jr., who doesn't want to vote for Donald Trump.

No Real Obligation

The “decision clarifies that state laws purporting to bind delegates to vote a certain way at national party conventions cannot be lawfully enforced,” Correll's attorney, Andrew M. Grossman of Baker & Hostetler LLP, Washington, told Bloomberg BNA.

“Approximately 20 states have laws similar to Virginia's on the books,” and the court's reasoning “makes clear that those laws impose no real obligation on delegates,” he said.

The opinion “is a modest application” of U.S. Supreme Court cases like Cousins v. Wigoda, 419 U.S. 477 (1975), and Democratic Party of the United States v. Wisconsin ex rel. LaFolette, 450 U.S. 107 (1981), according to Grossman.

The opinion in this case demonstrates that the principles of those Supreme Court precedents “continue to have vitality and continue to protect both parties and delegates against government encroachment,” Grossman said.

Attorneys for Virginia didn't respond to a request for comment.

‘Unfit to Serve.'

Va. Code §24.2-545(D) says that delegates to political party conventions “shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the [state] primary.”

Under Republican Party Rules, however, the Virginia delegation is required to vote in proportion to the outcome of the primary.

Although Trump won the Virginia primary, Correll said under oath that he believes “Trump is unfit to serve as President” and that he would never vote for Trump.

Rock and a Hard Place

Correll argued that he can't comply with both his party rules and the state law, because he can be prosecuted under Section 545(D) if he exercises his First Amendment rights by voting in accordance with the Republican rules.

Political beliefs and association are at the core of First Amendment protections, the court said.

Strict scrutiny therefore applied to Section 545(D) and the state was required to establish that the law is narrowly tailored to achieve a compelling state interest.

The state argued that it has an interest in the primary because it was state funded.

But a “substantially similar” argument was rejected in Cousins, the court said.

Because the state didn't show that Section 545(D) serves a compelling interest, it violates the First Amendment, the court said.

Due to the procedural posture of the case, the court's injunction only applied to Correll.

Grossman represented Correll. Anna T. Birkenheier of the Virginia Attorney General's Office, represented the state.

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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