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Posted on Wednesday, September 21, 2016

Virginia State Law to GOP Delegates: “Vote Trump or You’re Fired.”

Donald Trump won the Virginia Republican presidential primary on March 1 with 34.7% of the vote, earning him 17 bound delegates of the state’s 49.  Carroll Correll, a Virginia delegate to this year’s Republican National Convention, has recently filed an action against the Virginia Attorney General challenging the constitutionality of Title 24.2 Section 545(D) of the Virginia Code requiring that “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.” Although Donald Trump’s margin of victory in Virginia provided him with only 17 bound delegates under party rules, the state law requires all 49 delegates to march to Cleveland unified and cast their votes for Donald Trump on the first round. Any delegate who votes otherwise will be faced with a Class 1 misdemeanor, subjecting them to up to twelve months in prison, a fine up to $2,500, or both.

Correll anticipates on violating Section 545(D) at the Convention by not voting for Donald Trump on the first ballot, because he believes that a vote for Trump would violate his conscience and that a subsequent criminal prosecution would violate his First and Fourteenth Amendment rights.  Due to the time sensitivity of this issue, Correll has moved for the Court to issue a Temporary Restraining Order to prevent the imposition of criminal penalties on delegates at nation party convention who vote for a candidate other than the one who received the most votes in the Virginia presidential primary.  Correll hopes to show that Section 545(D) creates an impermissible constitutional burden on him because it does not serve a narrowly tailored state interest.  The Supreme Court has analyzed this issue in similar cases, tending to find that states have little to no interest in enforcing laws that attempt to bind the vote of delegates to parties’ national conventions.  Correll also appears to have a noticeable interest in freedom of political expression.

This case will likely reignite the debate concerning the constitutional rights afforded to national party delegates as individuals and to what limit they may be restricted under state law.  If delegates from states with provisions similar to Section 545(D) also start to successfully challenge the constitutionality of these sorts of restrictions, the 2016 presidential primary may conclude with a nomination process by delegates with a heightened level of voter-autonomy.  We will need to keep a close eye on how the Court handles the Temporary Restraining Order as an indicator for deciphering what direction this case may take moving forward.

Phil Abbruscato is a law clerk with Berenzweig Leonard and a J.D. candidate at the George Mason University School of Law.

Seth Berenzweig is the managing partner of  Berenzweig Leonard, LLP, a business law firm in the Washington, DC area. He can be reached sberenzweig@BerenzweigLaw.com.

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