“1. State legislatures cannot violate the First Amendment rights of Republican delegates.”
Unquestionably, political parties are private political organizations that are exercising their First Amendment of right of association when they adopt rules governing their own internal affairs, i.e., here the selection of, and rules regulating the conduct of, delegates to their national convention. On this point, we are all agreed.
However, whether a state law governing the internal affairs of a political party is valid is dependent on whether there is a contrary political party rule. State laws regulating the affairs of a private organization are not automatically invalid. They are only invalid if the state law violates the organization’s exercise of its First Amendment right of political association through the adoption of a contrary rule. As Mr. French acknowledges, “the Supreme Court has already ruled that in a conflict between state law and national-party rules, the national-party rules take precedence.” So we agree again.
Finally, the First Amendment right here is not an individual right of each delegate but a right of political association that requires the association to act. So Mr. French overstates his point by a slight of hand, while correctly arguing that the First Amendment protects political party rules against contrary state laws, he erroneously characterizes it as “the First Amendment rights of Republican delegates.” Delegates have no individual First Amendment right to vote as they please contrary to a state law.
Of course, some delegates to the GOP national convention are bound under state law, but some are bound under a state party rules, such as my home state of Indiana. There is no argument being made that such state party rule is constitutionally invalid and they are not. Only a contrary Rule of the Republican National Committee can invalidate a state party rule and such a RNC Rule is also necessary to invalidate a state law binding delegates. Mr. French and I diverge on what the RNC Rules provide.