A federal judge signaled that he may strike down a Virginia law that requires national convention delegates to vote for the winner of the state's presidential primary.
After a daylong round of oral arguments on Thursday that included discussions of Virginia law, Republican political convention history, and state and national party rules, 4th District Court Judge Robert E. Payne signaled that he would issue a narrow ruling as early as this coming Monday in a lawsuit brought by Carroll B. Correll Jr., a Winchester lawyer chosen as a delegate to the GOP's national convention in Cleveland.
Correll, a supporter of the presidential candidacy of Texas Sen. Ted Cruz, challenged the constitutionality of a Virginia law that imposes fines and possible jail time for delegates who do not vote for the winner of the state's presidential primary.
Payne seemed sympathetic to the arguments of Correll's lawyers that the law was unconstitutional. But Payne appeared unwilling to either certify Correll's case as a class action lawsuit on behalf of all convention delegates. He also did not seem willing to accept Correll's argument that the court could force the national convention to allow delegates to vote however they wished, regardless of party rules, or other state legal requirements.
Lawyers from Virginia's Attorney General's office, representing eight other convention delegates, as well as intervenors for talk radio host John Fredericks and former Loudoun County Supervisor Eugene Delgaudio, seemed to accept the judge's approach, with caveats.
They argued Correll knew the party's rules about binding beforehand, and still chose to run for, and win, one of the state's 49 delegate slots to the convention.
David Warrington, representing the intervenors, said he would oppose any ruling that would "have an impact on the party rules themselves.”
Correll's legal team, lead by David Rivkin of the Washington, D.C. firm of Baker Hostetler, presented expert testimony from Erling "Curly" Haugland, a long time member of the Republican National Committee from North Dakota and co-author of the book "Unbound: The Conscience of a Republican Delegate," which argues convention delegates are not bound to vote for a particular candidate based upon state primary or caucus results.
Correll's lawyers fees are being paid by the Woodbridge, Virginia-based Citizens in Charge Foundation, which published Haugland's book.
Haugland testified that delegates have often been "taken advantage of" in recent years because they "don't know their rights" as the ultimate arbiters of party rules and processes.
The defendants' expert witness, Jesse Binnall, who is employed by Donald Trump's campaign as a consultant on party rules and parliamentary procedure, said the Republican Party of Virginia agreed to award its convention delegates proportionally, based upon the results of the state's March 1 presidential primary.
This means Donald Trump, the winner of Virginia's primary, will have 17 delegates, while 16 will go to Florida Sen. Marco Rubio. Eight delegates were awarded to Cruz, five to Ohio Gov. John Kasich, and three to retired neurosurgeon Ben Carson.
Delegates are bound under this party rule to vote for the candidates on the first ballot. Should additional ballots be needed to determine the nominee, Virginia's delegates are then unbound, and may vote for whomever they wish.
Haugland told AMI Newswire that, "regardless of the outcome of the case, delegates can vote how they wish" at the party's national convention.
Eric O'Keefe, a board member of Citizens in Charge Foundation, told AMI Newswire he thinks Correll "will win on all counts."
Virginia's former chief deputy attorney general, Charles "Chuck" James, who attended the arguments as an observer, told AMI Newswire he was less certain of a total victory for the plaintiff.
"Judge Payne seemed to say the state has no compelling interest" in enforcing its law requiring convention delegates to vote for the winner of the March 1 primary. "He is likely to issue a ruling focused on that point," James said.
As for the plaintiff's argument about being allowed to vote his conscience, regardless of either state laws or election results, James said Payne "indicated he has no inclination or intention of getting involved in that fight, which is something the party will have to sort out for itself."
In a news conference after the hearing, Correll said he hopes Payne will issue a ruling that acts as “a permission slip" to other delegates to vote their consciences at the convention, and said such a ruling could have "political ramifications” by calling into question other state laws that bind convention delegates.
Rivkin, the lawyer for Correll, said it would be of "great national importance" if Payne ruled that Virginia's law binding delegates is unconstitutional "because [the law] allows the state to regulate an area where it has no legitimate interest. At all."
Correll refused to say who he would vote for, but stressed that there were other "great candidates" waiting for the "right moment to emerge."
The GOP convention, he said, was in the "national spotlight," and urged delegates to consider "if we can do a lot better than Donald Trump."
The Republican national convention begins July 18, with committee meetings, including those establishing rules for delegates, set to begin next week.