But if you’re still wedded to this fantasy that there’s going to be a dramatic revolt in Cleveland and a sheepish Trump will declare amid humiliating defeat that he’s finally learned the true meaning of Christmas before placing his crown as nominee on Marco Rubio’s head, this will make you happy for a few hours.
Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.
U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates “a severe burden” on First Amendment rights.
But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question.
This sounds like a bigger deal than it really is, assuming I’m understanding the decision correctly. The GOP has a rule that says delegates from any state that held a primary before March 15, 2016 will be awarded proportionally according to the results of the vote. (Virginia voted on March 1st.) Virginia has a law, however, that says all delegates are required to vote for the winner of the primary, i.e. Donald Trump. The law and the rule conflict. The plaintiff, Beau Correll, challenged the law because, and I quote from the opinion, he “‘believes that Donald Trump is unfit to serve as President of the United States and that voting for Donald Trump’ on the first ballot at the 2016 Republican National Convention, as required by Section 545(D) ‘would therefore violate Correll’s conscience.'” So he sued, hoping to have the state law struck down as a violation of his First Amendment rights. The court’s decision: Yep, unconstitutional.
Here’s the important part, though. This doesn’t mean that the GOP’s (or the state GOP’s) own rules are null and void and that the delegate are now free to vote for whoever they like. On the contrary, the judge found that the GOP’s rules trump Virginia law due to the free-speech and free-association interests involved. The GOP Rules Committee can still impose any rules it wants on delegates this week, binding them to Trump, unbinding them, whatever they want to do. In fact, the court in this case heard testimony from Curly Haugland, a GOP Rules Committee member and the chief proponent of the theory that the delegates are already unbound and are free to vote their conscience under current party rules. The judge wasn’t impressed with Haugland:
Haughland has studied the history of the RNC Rules as far back as 1880, and has co-authored an online book positing the thesis that the RNC Rules allow delegates to vote their consciences at any Republican National Convention. The Intervenors offered the testimony of Jesse Binnall (“Binnall”), a certified professional parliamentarian who has worked with the Republican rules since 2012, has advised Republican convention delegates at the national and local levels about those rules, and has advised Republican presidential candidates about those rules.
Haughland was of the opinion that, even though RNC Rules 37 and 38 do not explicitly provide for ”conscience voting,” their predecessor rules have been interpreted to allow delegates to vote as they please. Haughland also opined that RNC Rule 16 does not control voting. Binnall took the view that RNC Rules 37 and 38 do not permit “‘conscience voting” and that RNC Rules 16(a)(1) and (2) together with RNC Rule 16(c)(2) govern the allocation and binding of delegates when voting. The experts largely concurred that RNC Rules 13-25 are presently in effect, and that RNC Rules 25-41 are not presently in effect…
As to Rule 16, the Court credits Binnall’s testimony because it is logical and supported by the text of the rules. Thus, the Court finds that RNC Rule 16 is in effect presently and that it controls the allocation and binding of delegates as to their voting at the convention. Additionally, Haughland’s views were significantly undermined by the Defendants’ impeachment using passages from Haughland & Parnell’s publication, and by the fact that Haughland’s views on RNC Rule 16 lack any textual support.
The court offered no opinion on “conscience voting” but clearly he thought Binnall, not Haugland, had the better of the argument. Long story short, what this means if you’re a “Dump Trump” delegate (at least if you’re from Virginia) is that you don’t need to worry about state law dictating to you how to cast your vote. It’s a win for anti-Trumpers in the sense that delegates who are on the fence about whether to dump him will take some confidence from this that they won’t be prosecuted when they get home for refusing to follow the results of their state primary — although, again, the ruling technically only applies to the Virginia delegation. It does not mean, though, that the GOP needs to recognize their vote if they insist on voting for someone besides Trump. That’s determined by party rules, and those will be set this week. In fact, what could happen if the delegates fail to unbind themselves is that votes will be counted on the first ballot without even taking a formal roll of the state delegation. For instance, under current party rules, all 99 of Florida’s delegates are bound to Trump because he won the state on March 15th. The convention authorities could count those 99 votes without so much as asking the Florida delegates to formally cast them. There’s no legal recourse for that. Your right to vote your “conscience” at a meeting of a private organization exists only to the extent the organization itself grants it to you.