Virginia State Law to GOP Delegates: “Vote Trump or You’re Fired.”

Donald Trump won the Virginia Republican presidential primary on March 1 with 34.7% of the vote, earning him 17 bound delegates of the state’s 49.  Carroll Correll, a Virginia delegate to this year’s Republican National Convention, has recently filed an action against the Virginia Attorney General challenging the constitutionality of Title 24.2 Section 545(D) of the Virginia Code requiring that “delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary.” Although Donald Trump’s margin of victory in Virginia provided him with only 17 bound delegates under party rules, the state law requires all 49 delegates to march to Cleveland unified and cast their votes for Donald Trump on the first round. Any delegate who votes otherwise will be faced with a Class 1 misdemeanor, subjecting them to up to twelve months in prison, a fine up to $2,500, or both.

Correll anticipates on violating Section 545(D) at the Convention by not voting for Donald Trump on the first ballot, because he believes that a vote for Trump would violate his conscience and that a subsequent criminal prosecution would violate his First and Fourteenth Amendment rights.  Due to the time sensitivity of this issue, Correll has moved for the Court to issue a Temporary Restraining Order to prevent the imposition of criminal penalties on delegates at nation party convention who vote for a candidate other than the one who received the most votes in the Virginia presidential primary.  Correll hopes to show that Section 545(D) creates an impermissible constitutional burden on him because it does not serve a narrowly tailored state interest.  The Supreme Court has analyzed this issue in similar cases, tending to find that states have little to no interest in enforcing laws that attempt to bind the vote of delegates to parties’ national conventions.  Correll also appears to have a noticeable interest in freedom of political expression.

This case will likely reignite the debate concerning the constitutional rights afforded to national party delegates as individuals and to what limit they may be restricted under state law.  If delegates from states with provisions similar to Section 545(D) also start to successfully challenge the constitutionality of these sorts of restrictions, the 2016 presidential primary may conclude with a nomination process by delegates with a heightened level of voter-autonomy.  We will need to keep a close eye on how the Court handles the Temporary Restraining Order as an indicator for deciphering what direction this case may take moving forward.

Phil Abbruscato is a law clerk with Berenzweig Leonard and a J.D. candidate at the George Mason University School of Law.

Seth Berenzweig is the managing partner of  Berenzweig Leonard, LLP, a business law firm in the Washington, DC area. He can be reached sberenzweig@BerenzweigLaw.com.

Telecommuting Employees Can Pose Certain Legal Risks For Employers

United Excel Corporation, a Kansas company in the hospital construction business, employed a sales representative to solicit business from hospitals throughout the country.  At some point, the sales representative asked to work out of his home, which was located in Massachusetts.  During the three years that he worked from his Massachusetts home for United Excel, the sales representative never closed any business with hospitals in that state.

After closing a big deal for a hospital located in California, the sales representative got into a dispute over how much commission was owed to him by United Excel.  He sued United Excel in a Massachusetts state court, but the company sought to dismiss the case on the ground that the Massachusetts court had no jurisdiction over the Kansas-based United Excel for a dispute involving a project in California.  From the company’s perspective, the sales representative could well have worked from a home office in Timbuktu, as long as he closed business with hospitals around the United States.  The mere fact that the representative happened to live in a small town in Massachusetts shouldn’t mean that the company could be sued in that town’s courts, United Excel argued.

But a federal appeals court in Massachusetts recently decided that the home office where the sales representative worked was akin to a remote sales office for United Excel.  The court noted that United Excel provided equipment for the sales representative’s home office, and it placed phone calls and sent emails to the sales representative in Massachusetts during his employment tenure. The court said the fact that the sales representative never actually closed a deal for a project located in Massachusetts was not at all determinative, and that his actions in soliciting business all across the country (including Massachusetts) from his home office was enough for that state’s court to have jurisdiction over the employment case.

The key missing ingredient in this case was the fact that United Excel did not have a forum selection clause in its employment agreement with the sales representative dictating where a lawsuit must be filed.  If the agreement had said all disputes must be brought in Kansas where United Excel was headquartered, the Massachusetts case would likely have been dismissed.  All companies, and particularly those who allow employees to work remotely or who otherwise employ people out of state, should strongly consider having a forum selection clause as well as a choice of law provision.

Posted by Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, DLeonard@BerenzweigLaw.com