Correll v. Herring et al, No. 3:2016cv00467 - Document 43 (E.D. Va. 2016)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 07/11/2016. (tjoh, )

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Correll v. Herring et al Doc. 43 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 1 of 65 PageID# 1179 UNITED STATES DISTRICT COURT JL I I 2016 FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION a CLERK, U.S. DISTRICT COURT RICHMOND. VA Carroll Boston Correll, Jr., On behalf of himself and others similarly situated, Plaintiffs, Civil Action No. V. 3:16CV467 Mark R. Herring, In his official capacity as Attorney General of the Commonwealth of Virginia, et al., Defendants. MEMORANDUM OPINION This matter is before the Court following a the merits of the FIRST AMENDED VERIFIED FOR INJUNCTIVE AND DECLARATORY RELIEF (ECF No. For the 20) filed reasons, by Carroll CLASS (the set ACTION COMPLAINT "Amended Complaint") Boston Correll, and to the extent, bench trial on Jr. C'Correll"). forth below, judgment including declaratory and injunctive relief will be entered for Correll. PROCEDURAL BACKGROUND Correll, Convention, a Virginia filed a delegate VERIFIED INJUNCTIVE AND DECLARATORY RELIEF to CLASS the Republican ACTION ("Complaint") National COMPLAINT (ECF No. FOR 1) on June 24, 2016. The original Complaint posited a class consisting of Republican and Democrat delegates to the parties' respective Dockets.Justia.com Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 2 of 65 PageID# 1180 national filed conventions. the Amended the (Compl. SIH Complaint, delgates in putative includes allegations 36-41). which class. purporting Subsequently, does The to not Correll include Democrat Amended Complaint represent a class now of all Virginian delegates to the 2016 Republican National Convention. (Am. Compl. SISl 36-41) . Several National other Virginian Convention defendants. (ECF No. delegates subsequently 22). to the moved 2016 to Republican intervene Over Correll's objection, as though upon agreement of the original defendants^ (''Defendants") , the motion was granted and the additional delegates were permitted to intervene. (''the Intervenors") ^ (ECF No. 29). There has been no motion for class certification and, the position modified class certified. ^ Mark of the Intervenors, identified Accordingly, R. Herring, in the it is doubtful the Amended claims Attorney Complaint that General that were of even could tried, the given the be and so upon Commonwealth of Virginia; Marc Abrams, Commonwealth Attorney for the City of Winchester; James B. Alcorn, Chairman of the Virginia State Board of Elections; Clara Belle Wheeler, Vice Chairman of the Virginia State Board of Elections; Singleton McAllister, Secretary of the Virginia State Board of Elections; and Edgardo Cortez, Commissioner of the Virginia Department of Elections. (Compl., official ECF No. 1). capacities All of these defendants were named in their and are represented in this case by the Office of the Attorney General. ^ The Intervenors are John Fredericks, Belefski, Lind, Eugene Delgaudio, and Brandon Howard. Virgil Waverly Woods, Michael Goode, Tamara Neo, Howard Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 3 of 65 PageID# 1181 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 Correll's § 24.2-545(D) First Amendment ("Section 545(D)") violates 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 party to vote rules." (Am. Section 545(D) association, their conscience, Compl. SISl or to 43-45). vote Count consistent II alleges again "by stripping delegates" to or to vote consistent with party rules." SISI Count retained Constitution Compl. of by the SISI 59-60). of relief, for Injunction. alleges the that Section Commonwealth United States" and of 2016 545(D) (Am. "exceeds Virginia cannot be Compl. under enforced. the the (Am. Count IV and Count V present prayers for forms rather than claims upon which relief may be granted. Immediately Motion III the freedom to vote their conscience, powers that violates Correll's First Amendment rights of free Republican National Convention "of their 51-52). with after filing Temporary (ECF No. 4). his Complaint, Restraining During a Order telephone Correll and filed a Preliminary conference, the parties shortly thereafter agreed to consolidate for hearing and decision the request for a restraining order and the request for Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 4 of 65 PageID# 1182 a preliminary injunction. Court set argument the on motion July 1, (Tr. Jun. 21, 2016, ECF No. —). The for 2016. an evidentiary (Order, hearing ECF Nos. 11, and 18) . oral At the beginning of that hearing, the parties agreed that, pursuant to Fed. the Court consolidate R. Civ. P. 65(a)(2), should further the hearing on the preliminary injunction with a bench trial on the merits. At No. trial, 40) set (Tr. of Jul. the 7, 2016, ECF No. parties presented and ten Joint Exhibits. exhibits consisting 42, 164:12-165:5). a Joint Stipulation (ECF Correll presented an additional of minutes from earlier Republican National Conventions. Correll and the Intervenors each presented an testify about expert witness Party that Rules''), to govern the particularly proceedings about the Rules of the Republican of the national party RNC Rules 16, 17, and 37, (""RNC 38. The experts also testified about certain filings that the Republican Party of Virginia C'RPV") end of the hearing, submitted for made pursuant to RNC Rule 16. At the counsel presented argument and the case was decision on the merits. FINDINGS OF FACT At trial, Correll and the Intervenors each presented expert testimony to support their contentions on the meaning, present force, and and effect of RNC Rule 16 and of RNC Rules 37 38. Correll offered the expert testimony of Erling ''Curly" Haughland C'Haughland"), who presently serves as a member of the Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 5 of 65 PageID# 1183 Republican National Committee, 2016 Republican National will serve as a delegate to the Convention, and has served delegate to past Republican National Conventions. 2016 13:4-30:5). Rules as far Haughland back as has 1880, studied the and has co-authored an 1, the history of a Jul. (Tr. as RNC online book positing the thesis that the RNC Rules allow delegates to vote their consciences at any Republican National Convention.^ Jul. of 1, 2016 Jesse 13:4-30:5). Binnall The Intervenors C'Binnall"), a offered the certified (Tr. testimony professional parliamentarian who has worked with the Republican rules since 2012, has national advised and Republican local levels convention about those delegates rules, and has Republican presidential candidates about those rules. 7, at the advised (Tr. Jul. 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 vote as they please. been (Tr. interpreted Jul. 7, to allow delegates 2016 32:13-33:16, to 44:10-53:7). Haughland also opined that RNC Rule 16 does not control voting. (E.g. , Tr. RNC Rules RNC Rules Jul. 37 7, and 2016 59:24-63:21). 38 16(a) (1) do and not permit (2) Binnall took the view that "'conscience voting" together with ^ Curly Haughland & Sean Parnell, Unbound: RNC Rule 16(c) (2) The Conscience of a Repxiblican Delegate (2016) , available http://thisiscommonsense.com/pdf/Unbound_online.pdf. 5 and that ^ Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 6 of 65 PageID# 1184 govern the allocation and binding of delegates when voting. (Tr. Jul. 1, 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. 1, 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.'' As to because it Thus, is their views it 16, controls impeachment publication Court Binnall's that RNC Rule 16 is testimony text of the in effect rules. presently the allocation and binding of delegates at the convention. significantly using (e.g., credits and supported by the finds voting were the logical the Court and that to Rule undermined passages Tr. Jul. Additionally, 7, from by Haughland's the Haughland 2016 82:10-93:3), as Defendants' & Parnell's 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 who garnered the most votes as would be tantamount 7, 2016 225:5-6). than voting for the required by Section 545(D), to Correll voting his conscience. Counsel for candidate the ^ See infra Part I.B.2. 6 Intervenors also this (Tr. Jul. agreed that Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 7 of 65 PageID# 1185 the case could Section be 545(D) resolved to allow by enjoining Virginia's the enforcement delegates to vote of 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, conscience voting. singly or jointly, permit unrestricted (Tr. Jul. 7, 2016 215:15-19, 216:22-220:5). At the end of the 2012 Republican National Convention, party issued a set of rules, immediately and some of the some of which were to be effective which were proposed for possible adoption at the next convention in 2016. Specifically, on August 27, 2012, the 2012 Republican National ''Rules of the Republican Party" amended record four at times; Joint However, the the parties ("RNC Rules") . current Exhibit have 1. Convention form On this radically of the Those rules were the much, adopted rules the different is in parties views the agree. about the meaning and present force of the RNC Rules. Based on testimony, in force text of the RNC rules and on Binnall's the Court finds that RNC Rules 13 to 25 are presently regarding Convention, delegate the convening including votes. (Tr. delegate Jul. 7, of the 2016 allocation 2016 Republican and the 135:8-136:2).^ binding Further, ^ Correll's own expert did not disagree on this point. 7, 2016 36:2-39:7.) National of the (Tr. Jul. Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 8 of 65 PageID# 1186 record shows itself, are that RNC Rules 26 to temporary rules for 42, use according in the to 2016 Rule 42 Republican National Convention^ and have no force unless they are adopted by the assembled delegates place from July 18-21, 36:2-39:7, RNC at that 2016. convention, which (RNC Rules 22; Tr. will Jul. take 7, 2016 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." p. 12). According Republican Party'' to RNC that violates delegation reduced by 50%. RNC Rule 16(f)(1) must adopt (Joint Party rules Ex. of primary: 1, 17(a), Rule as ''state 16(c) (2) or will p. on state have On September C'RPV") required its provides that Republican state committees 15) . March 1, (Joint Ex. 1, p. 15). 1, by 19, adopted 2016; (2) RNC a which not Rule 2015, the resolution in directly for presidential candidate, which, a to govern their primaries by October 1, Virginia (1) Rule (Joint Ex. for voters Republican to hold a would vote delegates; 16(c)(2), 2015. would and (3) allocate delegates proportionally according to the primary votes received ® The 2012 RNC Rules did govern the 2012 Republican National Convention at which they were adopted. ^ As Correll's own expert ceded. "proposed rules." (Tr. Jul. 7, Rules 26 to 2016 39:5-7). 41 are merely Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 9 of 65 PageID# 1187 by each candidate, Ex. 2; Joint Ex. with all the delegates ''in one pot." 3, pp. 4, timely transmitted this Committee C'RNC") . 8). Pursuant to RNC Rule 16(f), information to the (Joint Ex. (Joint 3). RPV s RPV Republican National Rule 16(f) Filing also included a sample ''Declaration and Statement of Qualifications" ("Declaration") Ex. 3, p. that delegates would be required to sign. 14). That Declaration included a (Joint 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. 2015 3, p. 14; Joint Ex. resolution delegates). from providing RPV s Virginia's 5) Rule for 16(f) elections (referencing the September 19, proportional Filing code, also division contained including the text of an excerpt of Section 545(D). The their primary candidate election in preferences which was Virginia held on voters March 1, expressed 2016. The Virginia Department of Elections certified that candidate Donald Trump won the plurality of 4). most 34.80 votes in the percent of votes. primary (E.g. , Marco Rubio received 31.98 percent, election, ECF No. 25, with Ex. a 2, Ted Cruz 16.69 percent. Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 10 of 65 PageID# 1188 John Kasich 9.54 percent, and Ben Carson 5.87 percent; all other candidates ECF No. received 25, At a Ex. 2, local selected as a less than percent of the vote. (E.g., 4-5). convention held on April delegate (Joint Stip., one ECF No. to 16, Joint Ex. Correll was National Republican SI 17; 40, the 2016, Convention. 6). Correll signed a copy of the ''Declaration and Statement of Qualifications" that had been in 0pp. included to Mtn. Injunction, in the RPV s Rule 16(f) Filing. (Def.'s Mem. for Temporary Restraining Order and Preliminary ECF No. 25, 23 n.l4) (''Def.'s Resp."). In doing so, Correll agreed to the requirements of RNC Rule 16(c)(2). Correll Trump is that unfit voting Republican "would 21) . pleads to for under serve therefore violate Accordingly, on Correll the "Concerned his Donald Department of first (Am. that first-ballot Trump," that he as could on Elections May or by he any vote 25, at the Section (Am. "will other criminal for 2016 request a and 2016 545(D), Compl. not vote ballot, SI for at penalties candidate contacted an regarding the application of Section 545(D)." 10 Donald the SI 21). face "to ballot conscience." that ballot, Compl. first that United States required Correll's swears ''believes of the on the convention Correll he President Convention, national convention." cast as Donald Trump" National Donald Trump oath if other he than the Virginia advisory opinion (Am. Compl. SI 25; Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 11 of 65 PageID# 1189 Joint Stip. f 21, referred Correll, Abrams {''Abrams") , Winchester. June 2, Joint a Ex. 7) . The Department of Elections resident of the City of Winchester, the Commonwealth's Attorney for to Marc the City of (Am. Compl. SI 25; Joint Stip. SI 21; Joint Ex. 2016, Correll contacted Abrams, 7). On 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, aware the first rule of construction dictates interpret words of ordinary meaning of that as we you are statutory are to a statute using the language in the 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).® On June 8, 2016, Correll contacted the Chairman of the Electoral Board for the City of Winchester to request an advisory Chairman Elections. contacted opinion on instructed (Joint the the application Correll Stip. Department SI to 24). of On of Section contact the Elections same to the 545(D); the Department day, request Correll an of again advisory To provide context to this ''as you are aware," Correll is an attorney and ran against Abrams for the City of Winchester Commonwealth's Attorney position in November 2015. (ECF No. 25, Ex. 1, 1) . 11 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 12 of 65 PageID# 1190 opinion on the application of Section 545(D); the Department did not respond prior to initiation of this litigation. 25-26) . Hudson, After Chief Correll brought Deputy Attorney suit, General Abrams of (Joint Stip. and Cynthia Virginia E. ("Hudson''), expressed that they would not prosecute Correll for not voting for Donald (ECF Trump No. 38) at the C'l 2016 Republican believe that there difficulties in prosecuting a delegate circumstances General to that prosecute delegate for No. any 25, Ex. other would compel Mr. National . . . ... Convention. would I be serious do not anticipate the Office of the Attorney Correll or any other Republican . . . conduct in their capacity as a delegate'') ; ECF 1, 3) C'l do not intend to prosecute Mr. Republican delegate for their conduct Correll or at the 2016 Republican National Convention in Ohio"). These Counts I facts and II form of the the basis Amended for the claims Complaint, and asserted provide in the factual context for the Court's legal conclusions. SECTION 545(D) The statute at MUD CORRELL'S THEORIES OF RELIEF issue, Section 545(D), provides in 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 12 relevant Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 13 of 65 PageID# 1191 shall be unless method deemed the for alternates. use If another and elected by party has allocation the party method alternates, the state party determined another of delegates and for has determined selecting those to delegates delegates and alternates shall be bound to vote on first ballot at the national convention the for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote. Va. Code 545(D) § is 24.2-545(D) a Class 1 (emphasis added). misdemeanor that Violation subjects of an Section offender to ''confinement in jail for not more than twelve months and a fine of not more 20, 1 $2, 500, Answer, 15; than ECF 24 .2-18.2-11(a); either or both." No. 24.2-1017). Virginia Code since 1999. the case, of 24, SI 15) (Va. Compl., ECF No. on Code (relying Section 545(D) SB 1287 (Am. Va. has been part of the 1999). At the outset of Correll presented two related but independent theories relief. Correll's first theory argued that RNC Rule 38 or in conjunction with RNC Rule 37 - a §§ delegate to the 2016 to vote his "conscience" Republican guarantees that Correll, National (''that is, ECF Convention, [to vote] he believes to be the best candidate"). Mtn. on its own is as free for the person . . . (Pl.'s Mem. in Supp. of for Temporary Restraining Order and Preliminary Injunction, No. 545(D) 5, is 4) ("Pl.'s Mem."). unconstitutional According because 13 it to Correll, trenches on Section his First Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 14 of 65 PageID# 1192 Amendment right to vote his conscience pursuant to RNC Rules 37 and 38. (Pl.'s Mem. 2-3, Preliminary Injunction, Rule 37 provides, 8-9; PI. ' s ECF No. Reply in Supp. 36, for (^'Pl.'s Reply")). 5-10 of Mtn. RNC 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 chairman of that delegation, the convention shall by the the chairman of 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 recorded states. in The result accordance with shall the then vote of be 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, Correll's Republican p. 21). second National theory argued Convention have that a delegates right to to vote the in accordance with the rules promulgated by the national Republican Party (as implemented by the state Republican parties) 14 and that Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 15 of 65 PageID# 1193 the rules of Virginia's the national delegates percentage of votes March 1, Republican vote Party proportionally require based upon that the that candidates received during Virginia's 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 a state in a convention primary, must be used caucuses, to or 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, requires that, p. (emphasis added). at the convention, announced and obligation under Id. 12) recorded these Rule 16(c)(2) in rules, Next, RNC Rule each delegate's vote is to be accord state with law, or '"the delegation's state party 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. 15 16(a)(2) rule." Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 16 of 65 PageID# 1194 (Joint Ex. 1, Section 545(D) p.2) is (emphasis also added. According unconstitutional because to it Correll, trenches on those First Amendment associational rights. (Pl.'s Mem. 8-9).^ CONCLUSIONS Before the turning to jurisdictional the Intervenors. opinion OF LAW the merits, challenges it is raised by necessary resolve Defendants the to and by After resolving jurisdictional challenges, addresses the injunctive relief. merits Finally, of the case and the request this for the Court addresses and rejects the contention that Correll's prayer for injunctive relief is barred by the equitable doctrine of laches. I. JURISDICTION ''Article III of the Constitution limits the jurisdiction of federal List courts to V. 'Cases' Driehaus, 134 quotations omitted); Intervenors raise S. U.S. two and 'Controversies.''' Susan B. Ct. Const., 2334, Art. 2342 Ill, case-or-controversy § (2014) 2. Anthony (internal Defendants and doctrines: standing ^ At the time he filed his initial memorandum in support of a preliminary injunction, Correll appeared to favor the RNC Rule 38 conscience theory over the RNC Rule 16 proportionality theory. (E.g., Pl.'s Mem. 8-9). However, Correll's reply brief emphasized the RNC Rule 16 proportionality theory over the Rule 38 conscience theory. (Pl.'s Reply 12-21). At the hearing, Correll's expert evidence again emphasized the RNC Rule 38 conscience theory and the ways in which Republican rules had been interpreted at previous conventions to confer that right on delegates. (Tr. Jul. 7, 2016 32:13-33:16, 16 44:10-53:7). Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 17 of 65 PageID# 1195 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 these doctrine of standing constitutional gives meaning limits to 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. In a Injury typical sufficient to case satisfy particularized' and hypothetical.'" Susan (quoting Lujan v. see also, e.g. as revised formulation of Defs. 24, injury Article 'actual Spokeo, May alleging B. past III or List, of Wildlife, v. 2016. applies must imminent, Anthony Inc. injury, 134 504 U.S. 136 However, a in 17 be the S. injury ^concrete not Robins, 'Ma]n conjectural S. 555, Ct. Ct. at 560 pre-enforcement or 2341 (1992)); 1540 somewhat and (2016), different context. Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 18 of 65 PageID# 1196 Under this suffice there if is a approach, the 'Ma]n threatened substantial allegation injury risk is that of future certainly the harm injury impending, will occur." may or 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 enforcement render the threatened sufficiently Specifically, we have held that imminent. 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. is at 2342 (internal especially speech will be so citations omitted) where chilled there and is a that a (emphasis serious added). prospect plaintiff's that First 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 society's interest in having the statute challenged. 18 This free Amendment Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 19 of 65 PageID# 1197 Sec'y of State of Md. 947, 956 (1984) 721 F.3d 226, Amendment satisfied occurrs when 235 a a Joseph H. (4th Cir. the sufficient claimant he (1) ''has conduct (2) a Susan B. 467 U.S. Futrell, 2013). Accordingly, of chilled from is alleged an conduct is credible with Anthony List, of 134 commonly ^self-censorship,' which exercising h[is] a pre-enforcement to engage a right Ct. at a course and under 2342 suit when interest," statute," prosecution" S. in constitutional ''proscribed by threat is First 721 F.3d at 235. intention affected 'Mi]n element showing plaintiff may bring a arguably that exists a Munson Co., injury-in-fact to free expression." Cooksey, In sum, Inc., see also Cooksey v. (emphasis added); cases, by v. (3) that (internal of but "there statute. quotations omitted). As proven for the first that he intends Amendment-protected Convention, circumscribed and by and to conduct that this Section second engage at the in First 2016 intended 545(D). ("Correll will not vote for requirements, (Am. Correll and Fourteenth Republican course Compl., of SISI has National conduct 21, Donald Trump on the first any other ballot.").^° Although early First Amendment is 42-55) ballot or standing Correll also notes that the chilling effect of Section 545(D) may threaten the rights of the broader delegation Rule 17 states that a state delegation which acts 19 because RNC contrary to Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 20 of 65 PageID# 1198 law taught that ''desires" Harris, to 401 it is insufficient engage in protected U.S. 37, 57-59 to state activity, (1971) that e.g., (Brennan, J. , a person Younger v. concurring), more current decisions plainly acknowledge that it is sufficient to plead intent to engage in specific conduct proscribed by the statute in engaged in List, question, ("COAST has alleged that it previously that Mesires to Because petitioners' it is interest'") Bartlett, ("NCRL stated future, same citations 168 that intent conduct wants so but to to for 710 a similar a ... and political constitutional North Carolina (4th Cir. fear Anthony statements' 1999) these that (emphasis added). commit vote a distribute its B. concerns with omitted); F.3d 705, it and would do established or ^affected within" the operative statute) has criticizing intended future (internal has the certainly to Life V. the make Susan has at 2343 materials E.g., plaintiff Ct. disseminate past. a in to speech, whether conduct intended the of such 134 S. it regardless Right ("NCRL") guides i t would in fall Because Correll specific act that is Rule 16(c) (2) - that is to say, voting in a non-proportional manner despite holding a primary before March 15, 2016 - the Virginia delegation will be slashed by fifty percent. (Pl.'s Reply 15) . Because this speaks more to the rights of the 49 delegates as a whole, because the Court has not certified a class in this action, and because Correll has alleged a sufficient injury by way of chilling of his individual speech and associational rights, it is not necessary to reach this argument. 20 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 21 of 65 PageID# 1199 circumscribed by the statute in question, he satisfies the first two requirements for pre-enforcement review. The final requirement for pre-enforcement injury, threat of subjective prosecution," chill of is a also satisfied criminal in statute, ''credible this absent case. any The other government activity, is not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm . . . save in rare cases involving core First Amendment rights .... Even in the area of First Amendment disputes, the Supreme Court has generally required a credible threat of prosecution before a federal court may review a state statute. Doe V. Puling, 782 added) (relying on F.2d 1202, Laird v. 1206-07 Tatum^ (4th Cir. 408 U.S. 1, 1986) 13-14 (emphasis (1972)). Proving "credible threat of prosecution" requires a showing that one's First Amendment activities have been chilled. Subjective or speculative accounts of such a chilling effect, however, are not sufficient. Any chilling effect must be objectively reasonable .... Government action will be sufficiently chilling when i t is likely to deter a person of ordinary firmness from the exercise of First Amendment rights. Cooksey, Charlotte, 721 F.3d at 235-36 (relying on 635 F.3d 129, 135 (4th Cir. 2011)) Benham v. City of (emphasis added). The unconstitutional chill itself is an injury, where fear of prosecution is objectively reasonable. Cooksey, 721 F. 3d at 226 (''The injuries in this case-a chilling of speech and threat of 21 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 22 of 65 PageID# 1200 Supreme Court decisions on ''credible threat of prosecution" teach that effect there are ''objectively plaintiff, official Susan several reasonable'': B. threats factors Anthony of enforcement may make past a chilling enforcement 134 S.Ct. made at 2345; specifically 415 U.S. 452, against 455-56 (2) against (1974); and frequency of enforcement against similarly situated persons, Susan B. Anthony List, Law (1) List, plaintiff, Steffel v. Thompson, (3) that Project, 130 134 S.Ct. S.Ct. 2705, at 2345; 2717 Holder v. (2010); Humanitarian Steffel, 415 U.S. at 458-59/^ The first and third Commonwealth states, factors and Correll are does not not at issue dispute, here. that The Section 545(D) has never previously been enforced against Correll or any other person. (ECF No. necessitates examination creates type threat the of ordinary of criminal firmness the plaintiff was prosecution—were 25, of Ex. 2, whether individualized, prosecution from the that exercise 3). The Abrams's second letter directly by Correll particularized reasonable would person of his deter a rights. "twice warned to stop handbilling caused to factor the actions of In . . . of Steffel, and has the State Board.") Moribundity may make a threat of prosecution objectively unreasonable for standing purposes in some cases, e.g., Poe v. Ullman, 367 U.S. 497 (1961), but does not eliminate standing when a government official nevertheless makes a particularized threat of enforcement against a plaintiff. NCRL, 168 F.3d at 710. 22 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 23 of 65 PageID# 1201 been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted." Steffel, that those 415 U.S. at 458-59. The Supreme Court held police warnings, together plaintiff's partner in handbilling, with the arrest of were objectively chilling. Id. The Fourth objectively Circuit chilling has threat informal correspondence Cooksey, 721 F.3d at 237; held of law regulating purposes. NCRL, particularized, by a may state arise official. 168 F.3d at 709-11. plaintiff became concerned that election a enforcement issued NCRL, that E.g., In NCRL, it might be subject to a corporate 168 F.3d at 709. expenditures from for the state political NCRL wrote to the Chief Deputy Director of the State Board of Elections to request her opinion, enclosing samples of the literature it sought to distribute. The director [literature] corporate ''informed would NCRL violate expenditures that the distribution the State's prohibition a political purpose." for assessing the credible threat of prosecution, appears by its terms to apply to NCRL . . . . More importantly, NCRL has stated that i t wants to distribute these guides ... and fall do so within but for North political committee. that was fear its fear Carolina's To it would definition determine well-founded, 23 that NCRL this against Id. In the Fourth Circuit noted that the statute in question: would of Id. of whether wrote to Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 24 of 65 PageID# 1202 the not State Board of indicate that Elections. i t would The State interpret did the statute to mean anything other than what its plain language would suggest. As a result, NCRL refrained from disseminating its guide, and its speech was chilled. Id. at 710 official (emphasis sent the conduct would fall the fact it not that, enactment, groups" initial Once [the the the of stating statute has position objectively unreasonable. Elections that NCRL's neither (1) post-litigation position that twenty-five Board] in NCRL's Board within the scope of the statute, interpret ''in the communication that the State adopted a would fact added). to cover years never NCRL since interpreted rendered NCRL's fear nor the it to (2) the statute's apply to of prosecution Id. at 710-11. In its relevant parts, this case is much the same as NCRL. Correll became concerned that his intended conduct might subject him to prosecution under Section 545 (D). Stip. SISI 20-26) . (Compl. 511 21-25; Joint Correll wrote to the Board of Elections and to Abrams to request their opinions. (Compl. 25-26, 28-29; Joint Stip. SISI 20-26).^^ The Board of Elections did not respond (Compl. SI 26, 28-29; Joint Stip. SISI 20-26), but Abrams provided a letter stating in relevant part that: Donald Trump is not a Commonwealth official, and his thoughts on whether Correll may or may not be prosecuted based in part on Section 545(D) (Compl. iSI 30-31; Commonwealth's Resp. 19) are irrelevant to a ''credible threat of prosecution" analysis. 24 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 25 of 65 PageID# 1203 My office generally does not respond to requests for legal opinions about potentially criminal conduct . . . . However, as you are aware the first rule of statutory construction dictates that we are to interpret the words of a statute using ordinary meaning of the language in the the statute. The plain meaning of the statute you cite, Va. Code[] § 24.2-545(D) would appear clear. I refer you to consult private counsel for an opinion as to issues such as jurisdiction, venue, potential penalties, etc. (Compl. SI 27, outright, violate" Section shall as the in to for the unless Ex. 1, that 168 states vote on This letter does not state that at first reasonable person the plain, that Correll's unambiguous the of and at alternates national votes in delegates that the and an objectively letter, Section ''would because the most those finds Abrams's text However, ballot releases from such vote," the Court read conduct ''delegates alternates with 709. receiving candidate would intended F.3d the candidate that 4). Correll's NCRL, clearly bound convention 25, NCRL, statute. 545(D) be primary ECF No. in conjunction 545(D), as stating proposed course of conduct would violate Section 545(D). Defendants of raise prosecution: prosecute Correll, of criminal (1) and statutes two arguments that (2) would the relating Commonwealth to has that state law on the not 25 permit credible no threat plans to long-arm reach prosecution of Correll. Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 26 of 65 PageID# 1204 (Tr. Jul. ECF No. 1, 25, Ex. First, its 1, not ever state to 25, note, Ex. against prosecute cf. Holder, history Poe, official 130 367 U.S. E.g., S.Ct. at originally No. 38) of situated at 497. 38; C'l or any persons is Susan B. 2717; neither other to party or they delegate ECF No. (or 38; for ECF non-enforcement) relevant to Anthony List, Steffel, 415 U.S. a (1) intended credible 134 S.Ct. at as NCRL makes clear, the believe a not, state that 18-19; enforcement that has as Defendants and Intervenors However, stated subject to prosecution, (ECF ECF No. against and Hudson (Def.'s Resp. a similarly 16-19; Commonwealth 545(D) Correll 3).^^ It is true, threat of prosecution. 2345; Section 1, that the both Abrams violating Section 545(D). No. that applied additionally, intend Def.'s Resp. 3). Defendants knowledge, delegate; do 2016 211:23-212:7; conduct at 458-59; where an would be post-litigation disavowal of 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) C'l do not intend to prosecute Mr. Correll or any other Republican delegate for their conduct at the 2016 Republican National Convention in Ohio"). At the conclusion of the hearing, Correll's counsel briefly argued that Hudson's statement that she does ''not anticipate circumstances" that would compel prosecution is not an unequivocal statement of non-prosecution. (Tr. Jul. 7, 2016 230:5-231:20). Because post-litigation disavowal of prosecutorial intent is not dispositive, NCRL, 168 F.3d at 710, the Court need not decide whether unequivocal disavowal. 26 Hudson's statement is an Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 27 of 65 PageID# 1205 prosecutorial intent^^ nor (2) historical non-enforcement against a similarly situated group can ameliorate the credible threat of prosecution. conveyed NCRL, that 168 F.3d Correll's at 710. intended Because actions Abrams's were letter subject to prosecution, neither these post-litigation positions disclaiming prosecutorial 545(D) intent nor historical renders Correll's fear non-enforcement of Section of prosecution objectively unreasonable. Second, prosecution Defendants argue is objectively not ''traditional view of criminal that the crime occur that Correll's fear reasonable (relying on Va. 475, own 479 (1937)). criminal because the jurisdiction in Virginia requires within the Commonwealth," and intends to engage in expressive conduct in Ohio. 17) of Code § 19.2-239; Farewell v. Correll (Def.'s Resp. Com., 167 Va. This argument is inconsistent with Defendants' characterization of the law and of the harms they suggest that Correll's conduct might cause. Defendants note that, "MiJn recent years, Virginia courts have established room to prosecute an offense not fully executed "NCRL is that NCRL's left ... officers with nothing more than the will face no criminal State's promise officers .... NCRL's First Amendment rights would exist only at the sufferance of the State Board of Elections. It has no guarantee that the Board might not tomorrow bring its interpretation more in line with the provision's plain language. Without such a guarantee, NCRL will suffer prosecuted from .... be chilled as a the And reasonable its fear that constitutionally result." NCRL, it can protected 168 F.3d at 710-11. 27 and will speech be will Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 28 of 65 PageID# 1206 in Virginia but Commonwealth is 23 .... necessary, results." Va. resulting In such Virginia Jaynes v. 430, where must 17-18) harm actual be within physical the place the presence where evil (relying on Foster-Zahid v. Com., 440 (1996)); 276 Va. Com., immediate cases still (Def.'s Resp. App. in 443, (Pl.'s Reply 19-20 452 (2008) (relying on (noting that the state "may exercise jurisdiction over criminal acts that are committed outside the state, but are intended to, harm within the state"); (noting that criminal that, crimes intent if is Correll primaries, Kelso v. may also formed in votes in be and do in fact, Com., 282 Va. prosecuted Virginia). a manner 134, in to Correll will cause harm in Virginia: Commonwealth's depriving ''the financial and administrative Commonwealth of the 138 (2011) Virginia Defendants contrary produce when also the state Virginia rendering ''the investment a consideration waste," for the Commonwealth's expenditure of resources in holding the primary," undermining process," voter "confidence undermining confidence, and in the integrity "participatory cancelling of the electrical and destroying democracy" out "more than a million votes." (Def.'s Resp. 13-14).^^ In other words. Defendants insist that Correll's conduct in Ohio (not voting for the candidate who As noted in greater detail in the merits discussion, this interest in holding a primary does not create a constitutionally cognizable interest in regulating the conduct of a party convention under Democratic Party Follette, 450 U.S. 507, 124 (1981). 28 of the United States v. La Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 29 of 65 PageID# 1207 received the Virginia. harm most votes Defendants' they assert Commonwealth performed their primary) briefs prosecute outside the will be felt in characterization of Virginia law and the in may in the acknowledges breaches Commonwealth of when that: (1) Virginia the harm the statutes is felt in Virginia; and (2) breach of Section 545(D) will create harm felt in Virginia. Accordingly, Virginia law, Correll by Defendants' could be own characterization of prosecuted, which supports the credibility of a credible threat of prosecution. Defendants Virginia's may or may jurisdiction or not be about correct whether about the convention reach of voting in Ohio might produce the harms described in Virginia. However, fact augurs that Defendants objectively in Ohio made reasonable people prosecutable reasonably would an would consider Correll's Virginia's in such criminal courts, consider the threat argument of the that conduct and prosecution thus to be credible. Two to additional believe state would finding is that points voting subject also contrary Correll consistent make with to to it objectively Section 545(D) prosecution. Abrams's note No. would be 25, Ex. 1, 4). unreasonable to Second, assume 29 as referring the Correll General in First, private counsel for ""issues such as jurisdiction." ECF reasonable another such Correll (Compl. points out, Assembly a to SI 27, 'Mi]t adopted Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 30 of 65 PageID# 1208 [the statute] Reply 19) without 694 n.4 it be enforced." requirements Correll has for pre-enforcement and neither (Pl.'s Inc. v. Virginia, (4th Cir. 1986)). conclusion, context, that (relying on Am. Bookseller's Ass'n, 802 F.2d 691, In intending shown standing Defendants nor the in a Intervenors three basic First Amendment have dislodged the credibility of Abrams's initial threat of prosecution. 2. To Causation and Redressability establish sufficient complained causal of" redressed by a S. Ct. at 2342 standing, a plaintiff must connection between and ''a [likelihood] favorable decision." the also establish injury and the that the Susan B. injury ''a conduct will be Anthony List, 134 (internal quotations omitted). Defendants argue that the true cause of Correll's injury is not Section 545(D), which Correll the RPV s selected (Def.'s but, bound instead either: himself choice to hold a candidates Resp. rather 23-24). On by way of (1) RPVs own rules, the Declaration; than this directly basis. selecting Defendants delegates. argue is not the cause of Correll's injury but, that own choices (2) state-funded primary in which voters Section 545(D) Correll's or to or the choices of the injury for which Correll presently seeks redress. 30 RPV that rather, caused the Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 31 of 65 PageID# 1209 a. RPV s Choices in Potentially Submitting to Section 545(D) are not the Source of Correll's Injury, because the Present Section Conflict 545 (D) , is and between the RNC the has RNC not Rules and Voluntarily Submitted to Section 545(D) Defendants Alcorn, 820 F.3d 105 F.3d 904 alleged cite 24th 624 (4th Cir. (4th Cir. injury is Senatorial v. Meadows, where an a and Marshall Comm. v. by 2016) Republican for the proposition that, 1997) caused Dist. party's voluntary choice, the injury is not caused by the Commonwealth and cannot be redressed by a ruling Defendants' party against as proportional in delegates; party vote RPV to primary; which and chooses for Commonwealth. argument goes: such contest the to (2) would candidates, a between RPV Section hold RNC Rule 16(a)(1) choose voters (3) (1) (Def.'s chose vote 545(D) a to for 20). winner-take-all hold a applies contest rather than delegates; As permits a state and proportional candidates, only state-funded Resp. rather when in the which such that than state voters (4) RPV s choice brought its delegates within the ambit of Section 545(D). (Def.'s Resp. delegates contest, 20-24). rather In other words: than candidates, if RPV held elections for or chose a winner-take-all then Correll would not be injured by any clash between RNC Rule 16 and Section 545(D). Defendants' this and a case reliance involves state statute a on Alcorn and conflict between arising Marshall the national from an action 31 neglects of the that party rules state party Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 32 of 65 PageID# 1210 acting in conformance with a national between state party rules and a action of a state party. rule, not a conflict state statute arising from the Both Alcorn and Marshall dealt with cases in which the RPV affirmatively and voluntarily engaged in some action party) a which subjected to a state statute, conflict Alcorn, the F.3d 627-28, at In both of those cases, party (or a sub-unit party rules 630-33; and the Marshall, state 105 were the statutes. F.3d at 905. i t was fair to say that the RPV chose to bring itself under the control of the state law, sub-units of and plaintiffs subsequently alleged between 820 the obliged to live with and it and its the constricting consequences of that choice. In this case, allegedly in affirmative 545(D). however, conflict and The RNC the RNC - with voluntary Section act that the entity whose rules are 545(D) would - has submit has not chosen to subordinate i t s engaged it to in no Section rules to state statutes,^® and neither it nor its adherents are subject to the state's attempts carries out and very which is to circumscribe its business. live not conflict manner This means that between attributable the to RNC the Rule entity in there 16 and whose which is a the very real Section rules RNC 545 (D) would be Incorporating the Incumbent Protection Act into its own rules in Alcorn; holding an open primary in Marshall. RNC Rule 14 (c) explicitly states that Rule 16 controls in any (Joint Ex. 1, p. 11.) conflict with state laws. 32 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 33 of 65 PageID# 1211 subjugated to the state statute if that state statute were enforced. Moreover, that would Alcorn allow the and Marshall Commonwealth cannot to be read encumber a in a choice manner that is constitutionally left to the complete discretion of the national party^^ - the conduct unconstitutional of its condition, convention even if - that with St. Johns River (2013) ("the government because he exercises principle, the government explored more requirement ballot at from fully the to unconstitutional voting). See Dist., not deny constitutional 133 a S. e.g., Ct. benefit right enumerated coercing people in the delegates merits vote convention ... only Koontz 2586, to an accomplish limitation Commonwealth discussion. a 2594 person overarching cannot the (by them up."). on First 545(D)'s the first Amendment. attachment of voting) (regulate Part II.A. 33 an that convention Nothing in Alcorn or Marshall permits such a result. infra As would allow the convention directly ... preventing Section if accepted, dictate do by winner-take-all indirectly to rights into giving violates no-causation argument, Commonwealth the may Constitution's that Defendants' which a Mgmt. See, is known as the unconstitutional conditions doctrine vindicates the Water patently condition attached to one of multiple possible choices. v. a Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 34 of 65 PageID# 1212 b. Correll's Contractual Source of his Injury Obligations are Not the Defendants also argue that Correll's injury does not arise from Section 545(D), created by the one claim assumes - that from Declaration - primary results. To begin, but his contractual to be obligation bound by the - proportional (Def.'s Resp. 23). This argument lacks merit. this his argument presupposes that Correll has only ''conscience'' claim - because the voting proportionally in accord with the March 1, 2016 primary results would offend Correll's conscience. simply contrary to the record. argument That is Correll's counsel represented in closing argument that voting according to the Declaration - that is to say, proportionally - Correll's conscience. Moreover, antithetical voting. with RNC to Rule In other words. RNC Rule 16. most in the and associate 1, requiring 545(D), Section vote 2016 225:5-6). for requiring 545(D) 545(D) proportional is the primary: Donald Trump. delegates The in obvious accordance chill with his who Rule split to Correll's originates wholly with Section 545(D). 34 that candidate party's voting, is winner-take-all directly requires Republican Virginia proportionally. 16, Section delegates votes Jul. Section Republican the (Tr. would be voting in accordance with 16 in conflict all Virginia received requires their the that votes ability to speak convention rules Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 35 of 65 PageID# 1213 As to conflict with interprets the to Section RNC them, and 37 RNC and Rule Rule Commonwealth's 16's 38, at joint least causation potential as argument Correll neglects difference between private contracts which circumscribe chilling Rules the significant circumscribe 545 (D) behavior and behavior, effect. state criminal particularly First, the as coercive laws these power which seek to to a relate of the seek state is simply greater than the power of a private individual or private contract. See e.g., Engel (recognizing that the government" create may v. ''power, an Vitale, 370 qualitatively incarceration - significantly effectuated 407 U.S. different "'indirect private 32-33 tool - command greater by 25, to source coercive Second, 430 the of criminal (extending pressure" to punishment of laws a could than Argersinger Sixth support of making compulsion E.g., (1962) the state controls adherence, contract. (1972) 421, prestige and financial conform in context of school prayer). a U.S. be v. Amendment Hamlin, right to counsel to any charge where defendant faces incarceration). Where agreement the a plaintiff's and criminal criminal statute actionable, E.g., chill. Cooksey, conduct statute, does is the not proscribed Court exert cannot an both by civil conclude that additional, and The Court does not find i t unreasonable that 721 F. 3d at 226 First Amendment case). 35 (noting chilling as injury in Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 36 of 65 PageID# 1214 a plaintiff might be willing to engage he risks only civil consequences conventions or party politics, in the same conduct incarceration. additional To when the chilling effect, such as an exile from future but would be unwilling to engage he extent in certain conduct when risks that the criminal this Court Court can prosecution can foreclose provide a and that remedy to Correll's injury. In this case, the Court considers Section 545(D) to be a cause of injurious chill above and beyond that of any potential civil consequences Declaration. enjoining has associated with The Court may redress enforcement standing to of Section challenge RNC the cause 545(D). Section Rule In 545(D) 16 and of that this the RPV injury by case, Correll notwithstanding any civil contract he may have signed which independently, but forcefully, conduct. forbids Moreover, Defendants' as the him here, only to engage in intended point simply does not apply at all where, claim to be adjudicated between RNC Rule 16 and Section 545(D), between RNC Rules his less is the conflict rather than the conflict 37 and 38 and Section 545(D). 3. Standing to Speak for the Republican Party Both Defendants and Intervenors challenge Correll's standing on the ground that he cannot speak for the RNC or RPV. (Def.'s Resp. 25-26; Intervenors' 36 Resp., ECF No. 25, 12-14). Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 37 of 65 PageID# 1215 There are Correll two asserts delegate. depth significant (Am. in Compl. the the merits, rights later the related to the such that a problems at least SISI 45, Second, section assessing argument. as an speech and associational First, individual as discussed in more likelihood speech and associational of rights success of a rights of 477, 478-79 (1975) associational Nat^l Party, Cousins v. (permitting plaintiff and that rights interference E.g., with noting its members, its 836 F.2d 837, ''adherents") ; 841-42 Wiqoda, delegates interference Bachur (4th Cir. on party are speech or associational injury to the member is, an injury to the party. B. this partially 52). fact, is with 419 U.S. to with v. in assert a party Democratic 1987). Ripeness '"A claim contingent is future indeed may not 296, 300 courts ripe events occur at (1998) consider not that adjudication may not all." Texas (internal the for v. citations ''prudential occur if as it rests anticipated, United States, omitted). ripeness" or 523 U.S. Traditionally, factors fitness of the issues for judicial decision and upon (2) of: "(1) the the hardship to the parties of withholding court consideration." Cooksey, 721 F.3d the at 240 (quoting Nat^ 1 Park 37 Hosp. Ass^n v. Dep^t of Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 38 of 65 PageID# 1216 Interior, List, 538 U.S. 808 fitness credible assessing and pre-enforcement hardship threat Susan B. F.3d at 240 of are sometimes prosecution Anthony List, see also Susan B. Anthony Doe, personal stake in the outcome the maturity of the harm those 134 First established upon during S. Amendment Ct. the at standing 2347; claims, finding a inquiry. Cooksey, 721 (''Our ripeness inquiry ... is inextricably linked to our standing inquiry''); that (2003)); 134 S. Ct. at 2347. When E.g., 803, seeking a 782 F.2d at 1206 n.2 (standing) (ripeness) court's .... (''Plaintiff's is directly limited by Both doctrines require intervention face some threatened injury to establish a case or controversy"). B. Anthony List, actual or In Susan the Supreme Court noted that: In concluding that petitioners' claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings... Respondents contend that these "prudential ripeness" factors confirm that the claims at issue are nonjusticiable .... But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners' claims nonjusticiable on grounds that are 'prudential,' rather than constitutional, [that] request is in some Additionally, ripeness considerations are relaxed in First Amendment cases because chilling may result in irreparable loss. Cooksey, 721 F.2d at 240 (relying on New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995). 38 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 39 of 65 PageID# 1217 tension with our principle that to hear recent a and reaffirmation federal decide court's cases of the obligation within its jurisdiction is virtually unflagging. In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the "fitness" and ''hardship" factors are easily satisfied here. First, petitioners' challenge to the Ohio false statement statute presents an issue that is purely legal, and will not be clarified by further factual development . . . And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. Susan B. Cooksey, Anthony the List, risking S. Ct. at Fourth Circuit noted that, of prosecution existed, ''significant 134 the impediment" criminal adjudicate his 2347. where a plaintiff would of adjusting if court the constitutional claims. hardship his did Cooksey, in credible threat face either prosecution) Similarly, 721 conduct not (the or promptly F.3d at 240- 41. 1. The Conflict Between Section 545(D) is Fit for Adjudication As Rule and 16, respects fitness Cooksey, credible the between and hardship are, clearly threat conflict of established prosecution. As 39 Section as in Susan by the to and HNC Rule 16 545(D) B. earlier fitness, the and RNC Anthony List finding text of of RNC Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 40 of 65 PageID# 1218 Rule 16 (requiring that Virginia's proportionally because Virginia 15, 2016) held a delegation primary prior is clearly at odds with Section 545(D) vote to March (requiring that Virginia's delegation cast all of its votes for Donald Trump). The meanings respective of the faces, rule and presently in force. with a credible and both As the statute the rule to hardship, threat are and Correll, of prosecution, must clear the on their statute are having been faced adjust his conduct or risk prosecution. 2. The Conflict Between Section 545 (D) and RNC Rules 37 and/or 38 is Not Fit for Adjudication As respects the Rules 37 and 38, Susan B. however, or 38 for 36:2-39:7; existed in Convention 56:8), between Section 545(D) and RNC there is a complication not present in Anthony List or Cooksey that makes this issue unfit for immediate resolution: 37 conflict the the RNC has not actually adopted RNC Rules 2016 National 135:8-136:2). various since Although guises 1880 at (Pl.'s no effect, RNC Rules nearly Reply the undisputed record here 42 presently have Convention. is that and that, (Tr. Jul. 7 2016 36:2-39:7, 40 Jul. and 7, 2016 38 may have Republican Tr. National Jul. 7 RNC Rules if they are at the 2016 Republican National Convention, any effect. 37 every 5-10; (Tr. 2016 54:3- 26 through not adopted they may never have 135:8-136:2). Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 41 of 65 PageID# 1219 The decision of the Inc. V. Sierra Club, that case, and Resource the logging was challenge Supreme Court 523 U.S. Supreme Court Management not the because, objected might various hoops, 726 the the a which final Forest Forest Service contemplated decision logging Forestry Ass'n, is instructive here. Held that of before occur, (1998) Plan" sort in Ohio to that which Service had ''Land increased was the to In ripe for plaintiffs jump through including providing affected parties with notice and opportunity to be heard and making a final decision which would itself be amenable to administrative and judicial appeals. Id. at 734. Although the existence of the Plan at the time of suit made it ''more likely'' that the complained-of logging would someday occur, any dispute over the Plan's contents could not be ripe until the Plan was incorporated into a Id. at 730. possible modify that the obviated Until that the Forest expected the final Service methods plaintiffs' Service analogy Plan controlling statute 37 and was is statutes, allegedly at 38. But not an there of a "revise implementation" perfect rendering at one, action 731, odds with is common a occurred, it the in was Plan a way review at or that the Id. at 736. agency id. action might grievances, time of the suit unnecessary. The agency final agency action. that allegedly while allegedly 41 in the at Section odds 545(D) controlling characteristic Forest that with is a RNC Rules makes both Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 42 of 65 PageID# 1220 disputes unfit conflict is Forest have not Service any for judicial yet finalized. Plan, force review: RNC one Rules sketch out a they are formally until course side 37 and of the alleged 38, action adopted Republican National Convention. Additionally, 37 of like but at the do the not 2016 although RNC Rules and 38's presence in the temporary rules and their historic presence in the Rules of the Republican Party {Tr. Jul. 7, 2016 36:2-39:7) make adoption of RNC Rules 37 and 38 more likely the same manner likely than that that if the RNC Rules 37 the Plan's existence made Plan did not and 38 will exist - it final is be modified or in action more still deleted possible in a way that creates no actionable conflict with Section 545(D). On this basis, and Cooksey: the Court departs from Susan B. Anthony List any attempt to resolve an alleged conflict between Section 545(D) and RNC Rules 37 and 38 would require speculation because RNC Rules 37 and Rule 38 are not now in effect. merely proposed the 2016 Republican teaches that, terms that might be altered or even deleted at National the Ohio conflict is conflict is Forestry Ass'n so uncertain in its not fit for judicial over any alleged and 38, and not ripe for adjudication. Because conflict Convention. when one side of a and enforceability, decision, Court rules They are the between makes no Court Section finding lacks jurisdiction 545(D) about and the 42 RNC Rules 37 constitutionality of the Section Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 43 of 65 PageID# 1221 545(D) with respect to RNC Rules 37 or 38. controversy Correll's restraints, claims in the Counts In light of case-or- Court proceed and I will only on II the to basis assess of an alleged conflict between Section 545(D) and RNC Rule 16. II. MERITS OF THE RNC RULE 16 CLAIM A. The Conflict between Section 545(D) and RNC Rule 16 Creates Unconstitutional Harms to Correll, such that Declaratory Judgment is Appropriate The Supreme Court has long held that ''political belief and association constitute the core of those activities protected by the First Amendment." That principle First and nominating United applies Amendment parties rights their candidates States. Elrod v. with of Burns, particular speech members, for Cousins, and U.S. U.S. 347, force to association especially President 419 427 and in 356 protect of the 487. Thus, be any doubt as process the Court explained in Cousins: There can freedom to no longer associate with others for that the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments . . . . The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. 43 the political Vice-President at (1976). of of the Supreme Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 44 of 65 PageID# 1222 Cousins, 419 U.S. at 477 (citing Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973)).^^ Moreover, impairment 'Mi]t of is First (1976); type the of NAACP v. exercise direct at 65. "cannot be of Thus, but the an state 414 ''must be U.S. on an right Rather, one of 64- '^This effect not of on through unintended conduct[.]" the 1, (1958)). arises, as exacting 424 U.S. 460-61 mere showing of a paramount, significant if any deterrent indirectly at 58. a survive Valeo, rights encroachment that must 449, government's justified upon a interest." Kusper, by the Amendment action, result 357 U.S. necessary even First government inevitable U.S. of rights (citing Buckley v. Alabama, scrutiny is established Amendment scrutiny.'' Id. at 362 65 firmly but Buckley, 424 association legitimate state the interest advanced vital importance, and the burden is on the government to show the existence of such an interest," and the means chosen narrowly tailored to do so.^^ to effect contend that interest must be Elrod, 427 U.S. at 362. Therefore By virtue of the Fourteenth Amendment, precepts apply fully to the States. Id. Defendants that the Court these should First Amendment apply the less exacting standard set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983) and refined in Burdick v. Takushi, 504 U.S. 428 (1992) (''the Anderson/Burdick framework"), because that framework applies to all "[c]onstitutional election laws." (Def.'s Resp. 5). It is true applied to a law context, that the variety of and that Anderson/Burdick challenges to framework has state been constitutional claims in the election the broad language found in those 44 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 45 of 65 PageID# 1223 where, as here, the Commonwealth seeks to impose its will on a political party and its adherents by statute, the Commonwealth must establish that the statute is narrowly tailored to achieve a compelling state (citing Cousins, interest. 419 U.S. La Follette, 450 U.S. at 489; NAACP v. Alabama, at 124 357 U.S. at 463) . The foregoing contention rights of that speech principles Section and contravention of the guide 545(D) association the analysis offends by his requiring of Correll's First Amendment him to vote in RNC Rules. decisions could be read to reach Correll's claims here. However, the animating principle behind decisions applying that framework, which is ""that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder," does not apply here. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) . In this case, the statute at issue purports to regulate delegates' behavior at a party's national convention, which is neither an election nor a campaign and in which states have, at best, a minimal interest. See Cousins, 419 U.S. at 489. Decisions that directly confront the issue presented here, i.e., whether to "'accord [] primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention," uniformly apply strict scrutiny. Id. ; see also Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981). Therefore, the Court declines to apply the Anderson/Burdick framework and proceeds directly to the strict scrutiny analysis. In any event, even if the Anderson/Burdick framework applied (which it does not), the burden imposed on Correll's associational right is severe, requiring the application of strict scrutiny, even under the Anderson/Burdick approach. Therefore, the application of that test would not affect the analysis herein. 45 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 46 of 65 PageID# 1224 1. The Burden Imposed by Section 545(D) The burden in this criminal prosecution First Amendment accord with under rights the case is that Section Correll 545(D) faces if he a threat exercises his to speech and association by voting RNC Rules and RPV s Rule 2016 Republican National Convention.^'' 16(f) (Am. Filing Compl. of at in the SISl 22-23.) Specifically, RNC Rule 16(c)(2), which is mirrored by RPVs Rule 16(f) Filing, requires that all states that preference primaries on or before March 15, delegates' Rule 17(a) (Joint Ex. 1, Rule the alternate number from that of state Ex. candidates primary." Section 2016 allocate their p. 12; Joint Ex. 3) . Moreover, RNC provides that "[i]f any state or any state Republican party violates allocate presidential votes proportionally at the 2016 Republican National Convention. (Joint held 1, the No. shall p. delegates each be 15). remaining ''who 16(c)(2), In (Joint Ex. 545(D) to number the reduced by that delegates' received more the than event, votes 10% of of delegates national fifty the convention percent (50%)." Convention proportionally the votes and cast in will among such 1, p. 15). requires that, where the party holds a presidential primary election to determine the preference of the The Declaration that Correll signed upon being selected as a delegate also obligates him to vote in accordance with party rules. (Joint Ex. 5). Thus, compliance with Section 545(D) not only forces Correll to violate party rules, but also prevents him from performing his contractual obligation as a delegate. 46 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 47 of 65 PageID# 1225 voters, but chooses to select delegates by local convention, all delegates to the national convention are bound to vote for the candidate who first ballot. received the most In other words. take-all'' result that 16(c)(2), thereby votes in Section 545(D) is squarely subjecting the at primary mandates a odds Virginia reduction-by-half penalty of Rule 17(a) votes the on the ''winner- with RNC delegation Rule to the and allowing Virginia's to be allocated by the Convention in accordance with RNC Rule 17 (b).^^ Thus, Correll faces the unenviable choice of voting his 17, of pursuant RPV s 16(f) criminal accordance party to party's Filing, and the prosecution under with rules the and statute, facing requirements but the (RNC Rules risk 545(D); 16 and but Declaration) Section (1) a facing or (2) risk voting violating his pledge of his opportunity losing and in the to participate in the 2016 Republican National Convention at all. Supreme facts. Court precedent Section 545(D) Amendment rights. To clearly is of a the freedom interference with the freedom U.S. First it with 354 these begin, interference Hampshire, given severe burden on Correll's creates a 234, of 250 its teaches that, well-settled party is That "[a]ny simultaneously adherents." (1957). that Sweezy premise v. an New follows As Correll points out, ''no matter how the first-ballot votes are allocated among the delegate[s] ... in a proportional allocation 32 of the 49 Virginia delegates will cast votes that violate Section 545(D)." (Pl.'s Reply, 15). 47 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 48 of 65 PageID# 1226 necessarily from the basic fact that a political party does not exist separate and apart from its members.^® It is equally well-settled that 'Ma] per Sweezy, its adherents] that represents will its in v. Lopez citations omitted); Jones, 530 U.S. Cnty. Democratic (''Unsurprisingly, the view see 567, the standard bearer 552 also 575 Cent. reserves who by nominee York 196, 202 best State a ("the right Dean, Bd. (2008) of (internal Party Eu Francisco U.S. v. San 214, political 528 the F. to associate political best 224 v. (1989)) special place and the special protection it represents (N.D. national for, who Democratic (citing 489 which v. proposed New California Comm., Nelson with the our cases vigorously affirm the process 2007) U.S. (2000) preferences.'"); Fla. produce platform.'' Torres, First Amendment accords, and to choose a candidate-selection its political Elections [and, has a First Amendment right to limit its membership as it wishes, process political party party party's Supp. ideology 2d (or not convention ^selects 1271, a and 1280 to associate) delegates is very Analogously, the National Convention does not exist separate and apart from the delegates and party members who comprise it. Bachur, 836 F.2d at 841-42 (noting that "[d]elegates for practical purposes constitute the National Party — they make its rules, adopt its platform, provide for its governance, as well as nominate candidates."). Thus, for purposes of this analysis, there is no meaningful distinction between the party's associational right National Convention, to select a presidential discussed further below, rights to associate in doing so. 48 nominee at the and the delegates' Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 49 of 65 PageID# 1227 near the words, First Amendment association right's core.''). In other the right of political association endows the party with plenary discretion concerning the ''decisions about the identity of, and the process for electing, its leaders." 489 U.S. at 229. Accordingly, ''a political party may ordinarily decide for itself how delegates to its national convention will be chosen, and the party ordinarily need not comply with purporting to restrict its options." Nelson, 528 F. 1277; 124 state see also La Follette, 450 U.S. at laws Supp. (^'A 2d at political party's choice among the various ways of determining the makeup of a State's protected delegation by (''Delegates the to the party's Constitution."); perform a task of national Cousins, supreme convention 419 U.S. importance at to is 489 every citizen of the Nation regardless of their State of residence."). These decisions parties and context of their the Vice-President themselves task of the adherents no the selection allowing individual are and First Amendment particularly selection States of of 419 Presidential U.S. state conducted at to without 49 the 489. They for in the President and "[t]he role and rights strong because constitutionally mandated Cousins, conventions are United candidates." an teach that nomination of have also in States the great Vice-Presidential also teach impose restrictions respect for party that on policy how is Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 50 of 65 PageID# 1228 ''an obviously intolerable result." at 490. That is certainly so where the state statute dictates how delegates must discharge the most important duty of all - voting for candidates - and does so in direct contradiction of the party rules. The Supreme Court's decision in La Follette is particularly instructive. participate member 450 to in a party primary without or otherwise U.S. here, Under Wisconsin's ''open primary" law, at declaring 110-11. a Wisconsin a voter could registering party preference. law, like the as La in accordance ballot. Id. at however, provided allegiance 112. to Id. the original national at in and the primary National only voters Democratic that 109-110. action party The that primaries or caucuses process. with statute Democratic who were part could of the on Wisconsin Democratic Supreme National issue the Party's publicly Party at convention first rules, declared their participate delegate The state attorney general the the results party Follette, required Wisconsin's delegates to the national vote a Court selection brought against Committee 113. judgment convention though Id. it The in Wisconsin the was Supreme state's required to favor seat Court and the entered held a that Wisconsin the Id. declaratory the national delegation had been selected in violation of the party's The Supreme Court reversed, an asserting the primacy of state law over the delegate selection rules. at in even rules. reiterating its previous holding 50 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 51 of 65 PageID# 1229 in Cousins that a national party's delegate selection rules are protected by the First Amendment right to freedom of association and thus could interest. Id. Other at overridden both have reached 409 U.S. 1 the delegation selected law); party's Bachur, State (noting party's similar in convention 567 Austin, statute not rules); compelling state results. winner-take-all F.2d 837 rule Comm., First at See, Courts of O'Brien e.g., v. of Appeals' to injunction seat primary California as (rejecting mandated by challenge to delegates); F.2d 719 and the for 1072 Amendment process and right (11th to reversing, Wymbs Cir. control on its v. 1983) own justiciability an injunction requiring the Republican party to select Ferency v. could a Court convention Florida delegates based on a state on (staying Court 836 Exec. selection grounds, based Supreme allocation Republican delegate the Democratic gender a in (1972) requiring state only 120-22. cases, Appeals, Brown, be in be Ripon (D.C. Cir. one-Republican-one-vote principle); 666 F.2d 1023 requiring selection accordance enforced Soc'y, 1975) (6th Cir. with to the Inc. v. of the delegates results extent Nat'l 1981) that it Republican (rejecting "one person, to party's delegate allocation formula). 51 of (holding that a to the an open national primary contravened party Party, 525 F.2d one vote" challenge Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 52 of 65 PageID# 1230 Decisional law, therefore, makes clear that Section 545(D), which purports to govern the allocation and binding of delegates in their voting in contravention of the national party rules which Correll has agreed to abide) eliminate altogether Correll's unless First Amendment the Commonwealth compelling state rights. to participate as Section 545(D) and, threatens a imposes a severe burden on demonstrates interest which opportunity to delegate at the National Convention, Correll's and (by that in the doing cannot survive statute so, serves a is narrowly in ensuring tailored. 2. Here, that, The Asserted State I n t e r e s t s the where a Commonwealth political election, thereby state local and statewide candidate, funds [sic] party and and the this will the political party interest a state-funded expenditure administrative by voters ''an selects necessitating election, Virginia's claims effort choice determine of to significant coordinate intimates the that state (or one of its members) subsequently cancel out this effort." primary (Def.'s Resp. a the party's does not 28). The Supreme Court has rather clearly rejected substantially identical arguments. justification proffered by In Cousins, substantively Defendants here: the respondents proffered indistinguishable that 52 the State has from a a that compelling Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 53 of 65 PageID# 1231 interest in "protecting the integrity of its electoral processes and the right of its citizens under the State Constitutions to effective suffrage." Cousins, and 419 U.S. Federal at 489. The Supreme Court flatly disagreed, holding that: [c]onsideration of the special function of delegates to such a Convention militates persuasively against the conclusion that the asserted interest constitutes a compelling state interest. Delegates perform a task of supreme importance to every citizen of the Nation regardless of their State of residence. The Convention is candidates for Vice vital the the President of of offices the States themselves mandated role in selection business nomination of United have the of the Party's President States . . . and The no constitutionally great task of the Presidential Presidential of the and Vice- If the candidates. qualifications and eligibility of delegates to National Political Party Conventions were left to state law ^each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result.' Wigoda v. Cousins, 342 F. Supp. 82, 86 (N.D. 111. 1972). Such a regime could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a engaged in the vital Presidential candidates concerted enterprise process of choosing and ... The Vice-Presidential Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest interest Id. at 489-91 Celebrezze, important of an interest 780, in greater individual (footnotes 460 U.S. is (1983) regulating 53 any State. omitted); 794-95 than see also Anderson (^MT]he State has a Presidential elections v. less than Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 54 of 65 PageID# 1232 statewide or local elections, will determined be largely because the outcome of the by voters beyond former the State's Follette further boundaries. The Supreme Court's holding in La underscores the futility of the Commonwealth's argument. case, the Supreme Convention was delegation, cast in free thereby failed acknowledging elections," interest the in Convention. La Jones, U.S. was on the the interest sufficiently at in fair 450 583 compelling "the to no at of 124, the to a an primary primary State's can the justify National n.28; see contention right justify 124 also that effective blanket vote Although single elections workings U.S. rules. "regulating that entire primary Wisconsin's in primary (rejecting ensuring every party held National Wisconsin's that interests internal Follette, Democratic seat with Court and to ground State's the meaningless comply orderly into that refuse Supreme imposition 530 to to the held rendering Wisconsin, process state's Court In that the vote" primary for state government elections). In sum, political is party's entirely Resp. 28) where free even administrative the State internal to governance "cancel though resources the in attempts out state a and interfere operation, with party (Def. State's] effort" has expanded financial E.g., La a the [the primary. 54 to Follette, and 120- Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 55 of 65 PageID# 1233 22. Furthermore, the conclusion primary votes complete both Cousins and La Follette lead inexorably to that a cannot control State's justify over the state includes allocation Defendants have of not the its in which process stake delegates demonstrated in and a to right to Presidential each process voting that effect party's of fractional a burdening giving a nominees, but in selection Vice-Presidential has interest individual whose rules. Section and essence Therefore, 545(D) serves a compelling state interest. 3. Narrow Tailoring Because advances address it Defendants a have compelling whether the not state statute demonstrated interest, is is significant to note that it narrowly that is Section not 545(D) necessary tailored. to Nonetheless, Defendants have tacitly conceded the point by failing to offer any evidence or argument that the statute is narrowly tailored. For the that foregoing Section 545(D) Amendment rights association. is of Therefore, reasons, an Correll is entitled to unconstitutional free the political Court so burden speech declares on judgment his and and First political will enter judgment on that score on his behalf on Counts I and 11.^^ As previously explained, neither Count IV actionable count in its own right. Rather, state prayers for a specific form of relief. 55 nor Count V is an both counts merely Thus, judgment will Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 56 of 65 PageID# 1234 B. The Conflict Between Section 545(D) and RNC Rule 16 Creates Unconstitutional Harms to Correll, such that a Permanent Injunction is Equitable In establishing entitlement to a permanent injunction, a plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Correll has established each of these requirements. 1. Irreparable Injury It rights, is well for constitutes also established even minimal irreparable Johnson ("[v]iolations v. First periods 586 for the Night Club v. Miller, loss of loss of F.2d of First time, Elrod, Amendment irreparable injury'') . Moreover, to compensate "[t]he injury." Bergland, of that 427 993, rights unquestionably U.S. 995 Amendment at (4th 353; Cir. constitute see 1978) per se ''monetary damages are inadequate First Amendment 637 F.3d 291, 302 freedoms." (4th Cir. 2011) not be entered on either Count IV or Count V. declaratory relief will be entered on Counts I and II. Legend (citing Instead, The issue of injunctive relief will be addressed in the following section. 56 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 57 of 65 PageID# 1235 Joelner v. Vill. Of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004)) . Having determined that Correll has prevailed on the merits of his First Amendment claims on Counts I and II, follows that he has shown irreparable injury. nor Intervenors should follow those have suggested i f Correll that a (as he succeeded i t necessarily Neither Defendants different has) on conclusion the merits of claims. 2. Where Insufficiency of Legal Remedies rights, and its enforcement will deprive of a plaintiff of those rights, the threat a to state statute enforce inhibits that constitutional statute constitutes "'a continuing unlawful restriction upon and infringement of the rights" of the plaintiff as practical, Terrace rights); to F. loss Supp. end he or Thompson, has of ''no remedy adequate 263 U.S. statute's Legend Night Club, F.3d at 620) the which efficient v. injunction to as the 197, ongoing at law which remedy 215 (1923) inhibition 637 F.3d at 291 in of is as equity." (upholding due process (citing Joelner, 378 (''monetary damages are inadequate to compensate for First Amendment 2d 855, 866 (S.D. freedoms"); Ohio 2010) Brinkman v. Budish, 692 (noting that there "are no available remedies at law that are adequate to compensate for a loss of First Amendment rights."). 57 The absence of effective Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 58 of 65 PageID# 1236 remedies at law makes a permanent injunction appropriate in this case. 3. The Correll. permitted Balance of Equities balance of equities also weighs heavily in favor of Defendants will suffer absolutely no harm if Correll is to vote in accordance with the RNC Rules. Indeed, Defendants explicitly recognize this reality in their brief: In this bound case, so pursuant Rules and results to the in long as the delegates National RPV s the the Republican decision, Commonwealth are no evil ... [T]he State's investment in conducting a primary, the voters [sic] investment in voting, and the State's interest in protecting the meaning and integrity of the presidential primary electoral process are all respected so long as the delegates are bound either proportionally or winner-take-all. (Def.'s Resp. 18) (emphasis added). And, in any event. Defendants are ''in no way harmed by issuance of an injunction that prevents restrictions." the state from Legend Night Club, enforcing 637 F.3d unconstitutional at 302-03 (citing Joelner, 378 F.3d at 620). Thus, the balance of equities weighs heavily in Correll's favor. 4. The final Public I n t e r e s t prerequisite to the grant of an injunction is that the injunction does not disserve the public interest. The Fourth Circuit has repeatedly 58 held that ''upholding Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 59 of 65 PageID# 1237 constitutional rights rel. Newson v. Albemarle Cnty. Cir. 2003); (1960) see ("there also is serves United the the public Sch. Bd,, States highest v. interest." 354 F.3d 249, Raines, public 362 in F.3d F.3d 507, 521 at 303; (4th Giovani Cir. Carandola, 2002). Ltd. Therefore, ex (4th 11, the 21 due including those that bear the most directly on private rights[.]"); 637 261 U.S. interest observance of all the constitutional guarantees, Club, Newsom Legend Night V. this Bason, factor 303 also weighs in favor of granting an injunction. III. LACHES DOES NOT BAR CORRELL'S CLAIM Defendants claims and his and Intervenors prayer laches." (Def.'s Answer, ECF 41, No. SI 71) . assert injunctive for both relief ECF No. "Laches 24, is SI 71; an that are Correll's ''barred Intervenors' equitable by Answer, doctrine that precludes relief when a plaintiff has delayed bringing suit to the detriment of the defendant." Perry v. 945, 950 (E.D. 2012) The willful failure Va. 2012), doctrine to aff'd, ''penalizes assert his 471 a Judd, F. 84 0 F. App'x litigant rights." for at Supp. 219 2d (4th Cir. negligent 953. or "Equity demands that those who would challenge the legal sufficiency of administrative decisions concerning time sensitive public . . . At common law, the expression was that a party was "in laches." Common usage today is to plead a bar by the "doctrine of laches." In Fed. R. Civ. P. "laches." 59 8(a), the defense is simply Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 60 of 65 PageID# 1238 projects Orchard Cir. do so Valley 1989)); Va. 1996) with haste Citizens Ass'n Marshall v. ("The and dispatch.'' v. Hodel, Meadows, Fourth Circuit 921 is Id. 872 F. (quoting F.2d Supp. 75, 1490, Quince 80 1494 especially mindful of (4th (E.D. laches in the context of an impending vote."). ''Laches diligence and, by (2) Marcellus at *6 requires v. Va. proof the State Sept. has proof 9, whom Bd. of the Cir. 1990), cert. (1) defense asserting Elections, the first plaintiff is 2015 lack of asserted; the defense.'' WL denied, element delayed unreasonably in filing suit." White v. (4th elements: 5285819, (internal citations omitted). The that ''the two party 2015) held that of against to Virginia Circuit requires party prejudice (E.D. Fourth the the U.S. laches inexcusably or 909 F.2d 99, Daniel, 501 of 102 1260 (1991). "An inexcusable delay can only occur after the plaintiff discovers or should have discovered the facts giving rise to his cause of action." Perry, 840 F. Supp. prejudice to the defendant, on the part of the 2d at 953. The second element, "is demonstrated by a disadvantage defendant in asserting or establishing a claimed right or some other harm caused by detrimental reliance on the plaintiff's conduct." White, to the Tobacco 958 defendant Workers (4th Cir. must be a Int'l Union 1971) . "The result v. 909 F.2d at 102. of the Lorillard greater 60 the Prejudice plaintiff's Corp., 448 delay, the delay. F.2d less 949, the Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 61 of 65 PageID# 1239 prejudice 954. required Defendants requirement, show and laches.'' Intervenors Perry^ have 840 F. Supp. established 2d the at delay but not the prejudice requirement. First, Correll's Virginia's Correll, to primary knowing delay in election the filing took results suit place of the was on unjustified. March primary, 1, ran 2016. for the position of delegate and was selected on April 16, 2016. Correll then waited ten weeks 2016, leaving less than one Convention delegate month suit until before allowing and to to file over elapse the June 24, 2016 Republican two-thirds without of prosecuting his National tenure his as a time-sensitive claims. Correll sought to Attorney contends resolve and the that his delay must ''live excusable the matter by contacting Board of Elections. Understandable though that may be, delay because, is the because he Commonwealth's (Pl.'s Reply 23-24). it does not justify Correll's having ''chosen the non-litigation path," Correll with the consequences." Marshall, 921 F. Supp. at 1494. Correll action also before May asserts 25, that 2016, he could which was not "the have date brought that this Trump obtained sufficient presumptive delegates to lock a presumptive first-ballot victory," because "any vote that Correll cast for Trump on that ballot would have been inconclusive" unless Trump 61 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 62 of 65 PageID# 1240 was the presumptive nominee. simply inconsistent conflict between basis of whether will Section Correll's Correll became a of with not the be (Pl.'s Reply 23). Correll's 545(D) alleged theory and the injury, That argument is of RNC the Rules, existed on case. which the The is date the that delegate and is entirely unrelated to the issue first ballot at ''conclusive." the National Therefore, Convention Correll has will failed or to justify his delay in bringing this action. The second element suffered prejudice Defendants would render the investment a result they prejudice" allow primary vote and laches that claim administrative that as of all waste will their and conscience,' financial the have ''financial requesting delegates deprive Defendants unjustified delay. suffer ''[b]y Republican ^vote that of Correll's because, Commonwealth's a requires to a and remedy disregard Plaintiff and seeks the to administrative Commonwealth of the consideration for the Commonwealth's expenditure of resources in holding the primary." (Def's Resp. 12-13). Defendants assert that such relief would undermine their "''legitimate governmental interest in process[.]'" 202-03). ensuring the (Def.'s Resp. Defendants also fairness 13) the party's (citing Lopez-Torres, contend great prejudice to the public - of that Correll's specifically, 62 nominating 552 U.S. delay at "causes the more than one Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 63 of 65 PageID# 1241 million Virginia (Def.' s Resp. Defendants' that Correll's delegate, and they delay April 16, regulate at the in participated arguments have this became Because fail action. subject Section Convention, became a delegate, did not apply financial conduct (which the occurred avoided to which became a 545(D), on purports to represent Virginia to Correll before he on Republican March the costs of the 2016, the Commonwealth and administrative resources 1, presidential 2016), ballots had already been cast. Therefore, have the he did not have standing to bring this action had already expended the to of Section 545(D), As of April 16, not primary." neither Correll to before he was selected. primary that attributable is conduct of delegates elected to National necessary in because identified pursuing therefore 2016. the who 13) However, prejudices voters and preference the voters' the Commonwealth would primary even if Correll had brought this action on the first day he had standing to do so. Accordingly, any prejudice that Defendants have suffered cannot For that reason. Defendants' repeated contentions that Correll should have brought this action before the March 1, 2016 primary are simply incorrect. Correll could not have challenged a statute that allegedly impinges on the First Amendment rights of delegates when he was not a delegate. 63 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 64 of 65 PageID# 1242 be traced to Correll's delay, and the affirmative defense of theory or laches does not apply. The Intervenors prejudice, chaos on the Jul. (Tr. 8). arguing 1, However, eve that of 2016 a the 2016 different late-filed Republican 216:12-16, theory, slightly Correll's that argument "conscience" lacks employ suit National 220:12-222:6; is sowing Convention. Intervenors' Resp. is directed to Correll's RNC Rule which the Court, jurisdiction to adjudicate. The as discussed Intervenors 38 earlier, do not assert prejudice so long as Correll's theory is limited to the conflict between RNC 215:15-19, Rule 16 and Section 545(D). (Tr. Jul. 7, 2016 216:22-220:15). CONCLUSION For the Correll's foregoing favor on reasons, Counts I and judgment II and will the be entered Commonwealth will in be permanently enjoined from enforcing Va. Code § 24.2-545(0). There is no need to enter judgment on Counts IV or Count V because relief they can be are prayers granted. for relief, Correll put on not no claims evidence upon as to which Count In any event, allowing Correll to vote as required by the National Rules and RPVs 16(f) Filing, which mandate that Virginia's delegates vote proportionally on the first ballot in accordance with the results of the primary election, will not result in the prejudice that Defendants fear. Indeed, Defendants acknowledge that, ''so long as the delegates are bound pursuant to the National Republican Rules and the RPVs decision [to allocate votes proportionally], no evil results in the Commonwealth." (Def.'s Resp. 18). 64 Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 65 of 65 PageID# 1243 Ill and did not argue it. Thus, Count III will be dismissed with prejudice. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: July JL , 2016 65

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