Legal Threats Towards Ron Paul “Vote of Conscience” Delegates
Trying to discipline delegates is a core violation of the First Amendment. In fact, Rule 38 is an RNC version of the Speech and Debate Clause.
What the Romney campaign is trying to do is get state or local prosecutions or removal proceedings. A state action to punish Dr. Paul supporters for utilizing or attempting to utilize Rule 38 that would fail on First Amendment grounds. At least in California, any District Attorney who on some theory commenced such a prosecution would no doubt be immediately recalled.
In fact, the issue has already been litigated. In Democratic Party of United States v. Wisconsin, the Court addressed this very issue. For background, previous DNC rules provided that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party’s National Convention.
Wisconsin election laws allow voters to participate in its Democratic Presidential Candidate Preference Primary without regard to party affiliation and without requiring a public declaration of party preference. While Wisconsin’s open Presidential preference primary does not itself violate the National Party’s rules, the State’s mandate that primary results shall determine the allocation of votes cast by the State’s delegates at the National Convention does.
When the National Party indicated that Wisconsin delegates would not be seated at the 1980 National Convention because the Wisconsin delegate selection system violated the National Party’s rules, an action was brought in the Wisconsin Supreme Court on behalf of the State, seeking a declaration that such system was constitutional as applied to appellants (the National Party and Democratic National Committee) and that they could not lawfully refuse to seat the Wisconsin delegation.
Concluding that the State had not impermissibly impaired the National Party’s freedom of political association protected by the First and Fourteenth Amendments, the Wisconsin Supreme Court held that the State’s delegate selection system was constitutional and binding upon appellants and that they could not refuse to seat delegates chosen in accordance with Wisconsin law.
The United States Supreme Court reversed and held Wisconsin cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party’s rules. It held that the National Party and its adherents enjoy a constitutionally protected right of political association under the First Amendment, and this freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State, and necessarily presupposes the freedom to identify the people who constitute the association and to limit the association to those people only.
The court held that the Wisconsin laws unconstitutionally infringed on the Democrats’ freedom of association, and Wisconsin did not show a compelling state interest in such infringement. The Court rejected Wisconsin’s asserted compelling interests in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters, go to the conduct of the open Presidential preference primary, not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates. Therefore, such asserted interests do not justify the State’s substantial intrusion into the associational freedom of members of the Democratic National Party.
This has been reiterated in any number of cases. As an example, in Heitmanis v. Amis the United States Court of Appeals for the Sixth Circuit declared invalid Michigan state statutes on delegate selections that conflicted with party rules in that it conflicted with the right of political parties to choose delegates, and burdened the right of the state party and its members to freedom of association.
And, if the state Republican Parties tried to use state laws to impose legal sanctions would under Smith v. Allwright raise the issue of whether the State in effect could be entangled in a private organization’s disciplinary conduct which if done by the State would be invalid. Given the precedent, any such efforts are a non starter.
Moreover, the threat of State Party discipline is a sham. In many of these states, the state Republican party is now controlled by Paulites. As such, any inkling of the use of state sanctions to enforce the binding rules notwithstanding Rule 38 will spark chaos.
Tampa is a long-long ways off.