An Unenviable Choice: Party Loyalty or Voting Your Conscience?

How do we resolve the tension between an individual’s right to vote for who he or she chooses and a political party’s right to set its own rules to govern its proceedings? This conflict was at issue in Correll v. Herring, involving the validity of Virginia election law § 24.2-545 (D).

Political parties in Virginia “have the right to determine the method by which . . .  [they] will select their delegates to the national convention to choose the party’s nominees for President and Vice President of the United States including a presidential primary or another method determined by the party.” Virginia Code § 24.2-545 (A). Under § 24.2-545 (D), party delegates must vote for the candidate who wins the most votes in the party primary (“winner takes all”) if the state party uses a primary election system.  Violation of § 24.2-545 (D) is a Class 1 misdemeanor.

This law was on the line in Correll v. Herring. The court’s full opinion may be accessed here. Specifically, Carroll Correll, a Virginia delegate to the Republican National Convention (RNC), did not wish to be bound to vote for Republican candidate Donald Trump as it was against his conscience, and Correll wanted to be able to vote his conscience. However, to do so would violate § 24.2-545 (D). Interestingly, the Court noted that § 24.2-545 (D) is similar to Republican Party of Virginia (RPV) Rule 16 (f) which requires a pledge that delegates will vote for the candidate who receives the most votes in the primary. A further issue was that RNC Rule 16 (c) (2), unlike § 24.2-545, requires that presidential primaries shall provide for the allocation of delegates on a proportional basis.

In his Complaint, Correll claimed that in Virginia, Trump received less than the majority of the votes in the primary and thus, under RPV rules, was only allocated 17 of 49 delegates. Consequently, if Correll were to follow RPV rules, he would likely have to vote for a candidate other than Trump, thereby violating § 24.2-545 (D). Thus, Correll brought suit and his main arguments were that § 24.2-545 (D) violated (1) his right to free political speech under the First Amendment as the law stripped delegates of the ability to vote their conscience, and (2) his right to freedom of association for the same aforementioned reason.

Herring argued in his Memorandum in Opposition that § 24.2-545 (D) “merely protects the will of the voters of Virginia who participated in the primary process . . . . [Correll] was chosen to convey the will of Virginians at the Republican National Convention, and he knew the rules when he voluntarily stood for election to be a delegate.” However, the Court sided with Correll on both of the aforementioned counts, enjoining Virginia from enforcing § 24.2-545 (D) because the state law severely burdened Correll’s rights protected by the First Amendment (freedom of association and free political speech). Strict scrutiny therefore applied and the Court found the State’s aforementioned interest unpersuasive because a state’s interest in regulating state primaries is not compelling enough to warrant interfering with a political party’s internal governance. The Court found no need to examine narrow tailoring as the defendants failed to prove a compelling interest. Thus, § 24.2-545 (D) was found unenforceable.

On one hand, this looks like a major victory for individuals who want to be delegates and to vote their conscience; however, the Court’s ruling was more tempered.  For, the Court did not rule on the validity of the RPV or RNC rules because, at the time, the RNC had not adopted the rules at issue, as the rules were part of the temporary rules but were not in effect unless formally adopted.  The Court’s ruling means that while Virginia cannot require that a delegate vote for whoever gets the most votes during a primary election, a delegate can still be bound by such a rule at the RNC. Further, the Court’s focus was not so much on Correll’s ability to vote his conscience but on a state’s inability to impose on a political party’s internal governance. Overall, therefore, this Opinion seems to be more of a victory for political parties, but I believe that the Court struck the right balance between a party’s right to govern its own internal proceedings and an individual’s right to be able to freely vote for who he or she chooses.

The Court’s decision to free Virginia delegates from being bound to vote for the candidate who wins the most votes in a Virginia primary better fulfills the will of the people. For elections are fundamentally about the people, even delegates, deciding who they want to govern them, and this is much more feasible in Virginia now that § 24.2-545 (D) is no longer enforceable. At the same time, there is established precedent, like Democratic Party v. Wisconsin ex rel. La Follette (which the court in Correll heavily relied upon), that supports the fact that political parties have the right to govern their own internal affairs and determine qualifications for membership in respective parties. Hence, it makes complete sense to me that the Court declined to weigh in on the Republican Party’s rules. Accordingly, it appears that the RNC was able to regulate its convention this past summer and elect its nominee. Now, with the election finally over, we know the people’s ultimate say.

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