Liberating the Delegates

Nothing else has gone as expected this election year, so it’s no surprise that some Republican delegates are pushing for a party conscience rule to unbind them from having to support Donald Trump at the national convention. They may get an assist from a lawsuit filed Friday charging that a Virginia law that binds delegates violates the First Amendment.

Beau Correll is a longtime Republican who was chosen as a delegate to the national convention at a state party convention in April. Yet a Virginia statute says that because the state GOP also held a presidential primary, Mr. Correll and all 49 Virginia delegates must vote for the winner of that primary. Violation is a misdemeanor subject to jail and fines.

Mr. Trump won Virginia’s primary with 34.7% of the vote, but Mr. Correll says he “cannot, in good conscience, cast a ballot for Donald Trump.” His lawsuit, filed in federal court in Richmond by David Rivkin of Baker & Hostetler, asserts that “Correll stands in jeopardy of criminal prosecution and punishment for exercising his First Amendment rights of speech and association to vote for a candidate other than Donald Trump.”

This is a powerful legal argument that deserves to be heard on the merits. Political parties are private entities whose purpose is to meet to nominate a presidential candidate. The Supreme Court has ruled, in Cousins v. Wigoda (1975), that, “The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates.” It’s hard to see how Virginia could trump Mr. Correll’s right of speech and association.

Given that the two presidential conventions are only weeks away, Mr. Correll is seeking an injunction that would let all Virginia delegates in both parties vote their consciences in July. The lawsuit wouldn’t apply to other states, though it might encourage more challenges.

The lawsuit unfolds even as several hundred delegates across the U.S. are pushing for the first-ballot conscience rule. Their effort is opposed by the Republican National Committee, and Mr. Trump’s campaign says it has the votes to squelch it. There’s also no doubt that an attempt to nominate someone other than Mr. Trump would lead to a tumultuous convention and create party divisions that could doom any Republican nominee.

Then again, Mr. Trump is losing by five points in the latest WSJ/NBC poll and 12 in a new Washington Post/ABC survey against a much-loathed Hillary Clinton in a year when voters want change. John Kasich or Marco Rubio would be ahead by five or 10 points. If Mr. Trump is confident of victory, a conscience vote might even help him unify the GOP.

Whatever happens in Cleveland, Mr. Correll’s lawsuit is worth following as an attempt to clarify for the future that state governments can’t dictate how parties nominate presidential candidates. That power belongs to the people.

The Wall Street Journal