Correll Decision

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
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
bench trial on
ACTION
COMPLAINT
"Amended Complaint")
Boston Correll,
and to the extent,
Jr.
C'Correll").
forth below,
judgment
including declaratory and injunctive relief will be entered for

Correll.
PROCEDURAL BACKGROUND
Correll,
Convention,
Virginia
filed
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
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
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
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
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
Order
telephone
Correll
and
filed
Preliminary
conference,
the
parties shortly thereafter agreed to consolidate for hearing and
decision the request for a restraining order and the request for
a preliminary injunction.
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.
40)
set
of
(Tr.
trial,
Jul.
the
7,
2016, ECF No.
parties
presented
and ten Joint Exhibits.

exhibits
consisting
42,
164:12-165:5).
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
member
of
the
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
(Tr.
history of
co-authored
an
as
Jul.
1,
the
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"),
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
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
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.
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
which
not
Rule
2015,
the
resolution
in
directly for presidential candidate,

which,
to govern their primaries by October 1,
Virginia
(1)
Rule
(Joint Ex.
for
voters
Republican
to
hold
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
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
(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.
2,
Ted Cruz 16.69 percent.
John Kasich 9.54 percent, and Ben Carson 5.87 percent; all other
candidates
ECF No.
received
25,
At
Ex.
2,
local
selected as
less
than
percent
of
the
vote.
(E.g.,
4-5).
convention held on April
delegate
(Joint Stip.,
one
ECF No.
to
40,
16,
the
Republican
SI 17;
Joint Ex.
2016,
Correll was
National
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
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;
Joint
Stip.
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
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
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
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
(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,
15;
than
$2, 500,
Answer,
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 -
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
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,
5-10
of Mtn.
for
(^'Pl.'s Reply")).
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
rule
or
law
under
which
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
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
ballot
in
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."
(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
the
to
resolve
Defendants
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).
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
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,
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.
Under
this
suffice
there
if
is
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
that
(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
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
Sec'y of State of Md.

947,
956
(1984)
721
F.3d
226,
Amendment
satisfied
occurrs
when
235
a
a
Joseph H.
(emphasis added);
(4th
cases,
by
v.
Cir.
the
sufficient
claimant
he
(1)
''has
conduct
(2)
Susan B.
467 U.S.
see also Cooksey v.
Futrell,
2013).
Accordingly,
of
chilled
from
is
alleged
an
conduct
is
credible
with
Anthony List,
of
134
commonly
^self-censorship,'
which
exercising h[is]
pre-enforcement
to
engage
right
Ct.
at
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
Inc.,
injury-in-fact
to free expression." Cooksey,
In sum,
Munson Co.,
(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
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. ,
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
similar
...
and
political
constitutional
North
Carolina
(4th Cir.
fear
Anthony
statements'
1999)
these
that
(emphasis added).
commit
vote
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.
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
whole,
because
the
Court
has
not
certified
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
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
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
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
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
prosecutionwere
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
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
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
may
state
arise
official.
168 F.3d at 709-11.
plaintiff became concerned that

election
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
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
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
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
first
reasonable
person
plain,
that
Correll's
read
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
the
709.
conduct
''delegates
alternates
with
at
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.
(Tr.
Jul.
ECF No.
1,
25,
Ex.
First,
its
1,
not
ever
state
to
25,
note,
Ex.
that
against
cf.
Holder,
Poe,
history
official
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.
(1)
intended
credible
134 S.Ct.
at
as NCRL makes clear,
the
believe
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.
3).^^ It is true,
130
16-19;
Commonwealth
545(D)
Correll
1,
threat of prosecution.
2345;
Section
prosecute
similarly
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
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
in
Virginia
but
Commonwealth
is
23
....
necessary,
results."
Va.
resulting
In
such
Virginia
Jaynes v.
430,
Com.,
immediate
cases
still
(Def.'s Resp.
App.
in
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.
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).
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
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
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
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
objectively
in
Ohio
Defendants
made
reasonable
people
prosecutable
reasonably
would
in
such
an
would
consider
Correll's
Virginia's
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
[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
S. Ct. at 2342
standing,
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
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
1997)
caused
Dist.
v.
Meadows,
for the proposition that,
where an
and Marshall
Comm.
v.
by
2016)
Republican
party's
voluntary
choice,
the
injury is not caused by the Commonwealth and cannot be redressed

by
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,
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
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
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
on
Alcorn
and
conflict between
arising
Marshall
the
national
from an action
31
neglects
of
the
that
party rules
state party
acting
in
conformance
with
national
between state party rules and a
action
of
state
party.
rule,
not
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,
820
the
F.3d
627-28,
In both of those cases,
party
(or
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
at
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
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
in
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
S.
e.g.,
Ct.
benefit
right
enumerated
coercing people
in
the
delegates
merits
vote
convention
...
only
Koontz
2586,
to
an
accomplish
limitation
Commonwealth
discussion.
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
Mgmt.
See,
is
known as the unconstitutional conditions doctrine
vindicates
the
Water
patently
condition
attached to one of multiple possible choices.

v.
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
Virginia
proportionally.
and
associate
1,
requiring
545(D),
Section
vote
2016 225:5-6).
for
requiring
545(D)
545(D)
proportional
is
the
Donald Trump.
Republican
delegates
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
primary:
The
in
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
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
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
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).
U.S.
laws
could
be
v.
Amendment
of
Hamlin,
right
to
counsel to any charge where defendant faces incarceration).

Where
agreement
the
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
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
and
that
remedy
to
Correll's injury.
In
this
case,
the
Court
considers
Section
545(D)
to
be
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
here,
only
him
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).
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
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
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
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
tension with our
principle that
to
hear
recent
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
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
Tr.
that
and that,
(Tr.
Jul.
7 2016 36:2-39:7,
40
Jul.
and
7,
2016
38
may have
Republican
National
Jul.
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).
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
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
"revise
implementation"
perfect
rendering
at
one,
action
731,
odds
with
is
common
occurred,
it
the
in
was
Plan
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
RNC Rules
makes
both
disputes
unfit
conflict
is
Forest
have
not
Service
any
for
judicial
yet
finalized.
Plan,
force
review:
RNC
one
Rules
sketch
out
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
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
545(D)
with respect to RNC Rules 37 or 38.
controversy
Correll's
restraints,
claims
in
the
Counts
In light of case-or-
Court
will
proceed
and
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
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.
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
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
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,
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
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
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
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
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
''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
the
pursuant
RPV s
16(f)
criminal
accordance
party
to
party's
Filing,
and the
prosecution under
with
rules
the
and
statute,
facing
requirements
Declaration)
Section
but
the
risk
545(D);
(1)
(RNC Rules
16 and
but
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
creates a
First
of
the
freedom
interference
with
the
freedom
U.S.
severe burden on Correll's
is
with
354
these
it
interference
Hampshire,
given
begin,
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
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
(citing
489
best
("the
right
Dean,
State
best
Bd.
(2008)
of
(internal
Democratic
Party
Eu
Francisco
U.S.
v.
San
214,
political
528
the
F.
to associate
political
who
224
v.
(1989))
special place
and the special protection it
represents
(N.D.
national
for,
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,
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
presidential
discussed further below,
rights to associate in doing so.

48
nominee
at
the
and the delegates'
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
see
also La
Follette,
450
U.S.
at
state
laws
Supp.
(^'A
2d at
political
party's choice among the various ways of determining the makeup

of
State's
protected
delegation
by
(''Delegates
the
to
the
party's
Constitution.");
perform
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
''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.
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
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
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
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.
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
719
See,
and
the
e.g.,
Courts
of
O'Brien
v.
of Appeals'
to
primary
California
as
(rejecting
mandated
by
challenge
to
delegates);
F.2d
1072
right
injunction
seat
for
Amendment
process
and
(11th
to
reversing,
Wymbs
Cir.
control
on
its
v.
1983)
own
justiciability
an injunction requiring the Republican party to select
Ferency v.
could
Court
convention
Florida delegates based on a
state
on
(staying Court
836
Exec.
selection
grounds,
based
Supreme
allocation
Republican
delegate
the
Democratic
gender
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
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
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
is
narrowly
in
ensuring
tailored.
2.
Here,
that,
The Asserted State I n t e r e s t s
the
where
Commonwealth
political
election,
thereby
state
local
and
statewide
candidate,
funds
[sic]
party
and
and
the
this
will
the political party
interest
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.
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
that
compelling
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
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
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
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
the
[the
primary.
54
to
Follette,
and
120-
22.
Furthermore,
the
conclusion
primary
votes
complete
both Cousins and La Follette lead inexorably to

that
cannot
control
State's
justify
over
the
Vice-Presidential
nominees,
state
fractional
has
includes
but
allocation
Defendants
have
of
not
interest
in
burdening
giving
the
of
its
in
which
stake
delegates
demonstrated
in
and
right
to
Presidential
each
process
voting
that
to
party's
selection
process
effect
individual
whose
rules.
Section
and
essence
Therefore,
545(D)
serves
compelling state interest.

3. Narrow Tailoring
Because
advances
address
it
Defendants
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.
that
For the
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
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
permanent
injunction,
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
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
(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
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
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
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
for
laches."
(Def.'s Answer,
ECF
41,
No.
SI
71) .
both
assert
injunctive
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
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
Daniel,
501
U.S.
of
laches
inexcusably
or
909 F.2d 99,
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
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
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
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
and
to
to file
month
before
allowing
over
elapse
suit until
the
June 24,
2016
Republican
two-thirds
without
of
prosecuting
his
National
tenure
his
as
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
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
claim
administrative
that
would
the
investment
and
laches
result
that
they
prejudice"
allow
primary vote
render
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
requires
to
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
million
Virginia
(Def.' s
Resp.
Defendants'
that
Correll's
delay
delegate,
and
April
16,
regulate
at
the
they
in
participated
arguments
have
this
became
Because
fail
action.
subject
Section
Convention,
became a delegate,
did
not
apply
financial
to
conduct
(which
the
occurred
the
attributable
to
which
became
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,

avoided
of
he did not have standing to bring this action
had already expended the
have
primary."
neither
Section
545(D),
As of April 16,
not
that
Correll
to
before he was selected.
primary
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
be
traced
to
Correll's
delay,
and
the
affirmative
defense
of
theory
or
laches does not apply.
The
Intervenors
prejudice,
chaos
(Tr.
8).
arguing
on
the
Jul.
1,
However,
eve
that
of
2016
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
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
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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Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 1 of 65 PageID# 1179

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT

Carroll Boston Correll, Jr.,

others similarly situated,

Attorney General of the

This matter is before the Court following a

FOR INJUNCTIVE AND DECLARATORY RELIEF

and to the extent,

including declaratory and injunctive relief will be entered for

INJUNCTIVE AND DECLARATORY RELIEF

June 24, 2016. The original Complaint posited a class consisting

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 2 of 65 PageID# 1180

Virginian delegates to the 2016 Republican National Convention.

Compl. SISl 36-41) .

Over Correll's objection,

agreement of the original defendants^ (''Defendants") , the motion

was granted and the additional delegates

(ECF No. 29).

There has been no motion for class certification and,

Virginia; Marc Abrams, Commonwealth Attorney for the City of

All of these defendants were named in their

Office of the Attorney General.

^ The Intervenors are John Fredericks,

and Brandon Howard.

Waverly Woods, Michael

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

The Amended Complaint presents five counts. Count I alleges

right to free political speech,

specifically his individual right to "vote for a presidential

delegates" to the 2016 Republican National Convention "of their

or to vote consistent with party rules."

Count IV and Count V present prayers for forms

rather than claims upon which relief may be granted.

freedom to vote their

violates Correll's First Amendment rights of free

Republican National Convention "of their

parties shortly thereafter agreed to consolidate for hearing and

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 4 of 65 PageID# 1182

(Tr. Jun. 21, 2016, ECF No. ). The

beginning of that hearing,

the parties agreed that,

the hearing on the preliminary injunction with a bench trial on

2016, ECF No.

and ten Joint Exhibits.

Correll presented an additional

Correll and the Intervenors each presented

experts also testified about certain filings that the Republican

end of the hearing,

counsel presented argument and the case was

decision on the merits.

At trial, Correll and the Intervenors each presented expert

testimony to support their contentions on the meaning,

Correll offered the expert testimony of Erling ''Curly" Haughland

Case 3:16-cv-00467-REP Document 43 Filed 07/11/16 Page 5 of 65 PageID# 1183

Republican National Committee,

will serve as a delegate to the

delegate to past Republican National Conventions.

their consciences at any Republican National Convention.^

parliamentarian who has worked with the Republican rules since

Republican presidential candidates about those rules.