The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Donald Trump is the presumptive Republican nominee for president because he won a majority of delegates awarded in state primaries, caucuses and conventions. If every delegate votes in accordance with the primary results, Trump will be declared the Republican candidate at the GOP convention in Cleveland. But what if, in their heart of hearts, a majority of delegates do not actually support Trump? Are they bound? Not necessarily.
Existing GOP convention rules provide that delegates are bound by the results of their respective state primaries, caucuses or conventions. Yet as Eric O'Keefe and David Rivkin pointed out in the Wall Street Journal, these rules expire before the delegates must cast their votes.
Rule 16 of the Republican National Committee says primaries will be used to "allocate and bind" delegates. But that rule expires at the convention's start. Though a majority of delegates could vote to adopt a binding rule at the convention, that's unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan.
But what about state law? Some 20 states have laws on the books requiring state delegates to vote in accordance with the results of state primaries, caucuses or conventions. Yet these laws raise some interesting constitutional questions.
A lawsuit filed last week in federal court challenges the Virginia law that purports to bind Virginia delegates. According to the complaint and memorandum in support of the plaintiff's motion for a temporary restraining order, insofar as Virginia law compels delegates to vote in accordance with the state primary results, it violates the First Amendment. The plaintiff, Carroll Boston Correll Jr., seeks an injunction barring prosecution so that he may vote his conscience at the convention. As his complaint begins:
The First Amendment to the United States Constitution guarantees delegates to the Republican Party's and Democratic Party's national conventions the right to vote their conscience, free from government compulsion, when participating in the selection of their party's presidential nominee. Nonetheless, Virginia law acts to strip them of that right, imposing criminal penalties on delegates who vote for anyone other than the primary winner on the first ballot at a national convention. That law cannot be sustained under the First Amendment or as a legitimate exercise of Virginia's authority under the United States Constitution
As O'Keefe and Rivkin explain further:
State laws that purport to bind delegates can't be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech.
Such infringements can be upheld only if they are narrowly tailored to advance a compelling government interest. Yet states have no valid interest, much less a compelling one, in binding delegates. As the Supreme Court recognized in Cousins v. Wigoda (1975): "The States themselves have no constitutionally mandated role in the great task of the . . . selection of Presidential and Vice-Presidential candidates."
As Correll's filings elaborate, the Supreme Court has repeatedly found that various state laws burden the associational rights of political parties and their members. These precedents support the principle that it is up to a political party—and not state legislatures—to determine how to select a party's nominees.
If Correll's suit is successful, it would eliminate one of the legal obstacles to replacing Trump as the Republican nominee. Given the decline of Trump's poll numbers, and the candidate's continued insistence on saying things that alienate key portions of the electorate (including many lifelong Republicans), dumping Trump is an option GOP convention delegates might want to have.