As Republican delegates prepare to make their way to Cleveland for next week’s Republican National Convention, a Virginia judge has given the Never Trump movement a breath of life. In a stunning ruling, a federal judge ruled that Virginia Republican delegates are not bound by the state law that requires them to vote on the first ballot at the convention for the winner of the state primary.
The decision stemmed from a suit brought by delegate Carroll “Beau” Correll against Virginia elections officials. Correll’s suit claimed that the law binding him to vote for Trump, the winner of the Virginia primary, was a violation of his First Amendment rights to freedom of speech and association. Even though Donald Trump won the Virginia primary, many supporters of rival candidate, Ted Cruz, were appointed as delegates to the convention.
The case, “Correll v. Herring,” will apply only to Virginia delegates, but Judge Robert Payne did cite precedent in his ruling that could apply to other states that have similar laws. In “Democratic Party of U.S. v. Wisconsin ex rel. La Follette” (1981), the Supreme Court ruled that state law could not override party rules for delegate selection. In that decision, Justice Potter Stewart wrote, “A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.”
In 1912, the Nebraska Supreme Court ruled, “expression of a preference for President by those voting at primary election ... is only morally binding on delegates to national party conventions.” In other words, delegates are not legally bound by primary votes, but may have an ethical obligation to follow the will of the voters.
The judge, Robert Payne, has served on the U.S. District Court for the Eastern District of Virginia since 1992. He was nominated to the court by George Herbert Walker Bush and received the unanimous approval of the Senate.
The ruling will likely encourage other Republican opponents of Trump to make a stand against the presumptive nominee at the convention next week. There is a movement afoot to change Republican Party rules that bind delegates. Kendal Unruh, the leader of the “Dump Trump” movement, said earlier this week in the Daily Wire that there were enough votes on the rules committee to “free the delegates.”
David Rivkin, the attorney for Correll, said in a statement after the ruling, “Today's decision should give comfort to all delegates that they cannot be punished for voting their conscience at the Republican National Convention.”
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