SUBSCRIBER CONTENT: Apr 8, 2016
The first place that voters saw the prospect of an open or contested GOP Convention was here in The Evans Report. Pundits scoffed at the possibility and party officials ignored it (“Why is a brokered convention so scary anyway?,” Dec. 4, 2015. Read it at http://bizj.us/1kek8e).
Now, with each passing primary or caucus, the prospects for an open or contested GOP Convention continue to mount.
Against that backdrop, more and more questions circle Washington insiders, keeping parliamentarians and lawyers busy. Here are the latest:
- How do delegates bound to former candidates get released? Some say upon suspension of a Presidential campaign, delegates are released. (In fact some state statutes or state party rules so state.) Some say that only upon the “termination” of a campaign are delegates released. So far no candidate with delegates has actually “terminated” their campaign. And finally, some say that only if a candidate actually releases the delegates are they released.
Typically, it is a matter of state of law, although it remains an unsettled issue for the vast majority of jurisdictions. As the possibility that Donald Trump might come up short, this becomes a really big deal. To secure the nomination, he would need unbound or “released” delegates to reach the requisite 1,237. Similarly, Senator Ted Cruz needs those delegates to stay unbound and vote for him or their original candidate to keep Trump from going over the top. It remains a looming issue with many insiders hoping that it never actually becomes a necessary issue to decide.
- Does the threshold of eight states get reduced? At the last RNC Rules Committee meeting, the Rules Committee almost adopted a rule that would have eliminated the threshold altogether and left open the possibility that any candidate – nominated at the convention or not – could become the GOP Nominee. That possibility was averted in the final minutes of the last Rules Committee meeting.
Currently, the nomination threshold only becomes relevant if Gov. John Kasich can win either two or four more states because the current threshold is eight states. Hence, his strategy of targeting a handful of states is the best shot he has. If he gets to three or five wins and then the rules are changed to lower the threshold to three or five, then he could be the third candidate in nomination on the first ballot and the implications are huge. A three candidate first ballot is much more likely to produce an open convention than a two person race which, depending on how “released” or “not released” delegates vote, virtually guarantees a nominee on the first ballot.
- Can a candidate “pledge” delegates to another candidate? Currently, the rules are silent on the issue and state rules suggest delegates are bound ONLY to the candidate who earned them. However, candidates can release and urge their bound delegates to support another candidate, although such “requests” are only that – “requests.”
On the other hand, if the rules are clarified or amended to permit pledging of bound delegates, then the dynamics again change. Such a change would permit a coalition of all or most of the candidates who are not the frontrunner to “broker” a deal supporting a nominee who neither had the requisite 1,237, nor even had a majority of the delegates. Basically, permitting pledging delegates is the first step toward a “brokered” convention.
- Can new candidates enter the field after the first ballot? Interesting question: 40(e) says, “If no candidate shall have received such majority, the chairman shall direct the roll of the states be called again and shall repeat the calling of the roll until a candidate shall have received a majority of the votes entitled to be cast in the convention.” There does not appear to be any provision for re-opening nominations or making new nominations from the floor. So, absent a rules change, how one of the ‘establishment’ candidates who never ran during the primaries gets to be a ‘candidate’ remains unclear. Remember, however, the Convention can change its own rules.
- If delegates cast ballots for candidates not in nomination (i.e. they did not demonstrate the support of a majority of eight states to be nominated), does that lower the number needed to win? In other words, if Rubio’s delegates vote for Rubio, but he is not in nomination, does that lower the total votes cast for purposes of deciding what a majority is?
The applicable rule is Rule 40(d) which says: “When at the close of a roll call, any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule.”
The operative question is the phrase “the votes entitled to be cast in the convention.” Traditionally, this has been the majority of the total votes eligible to be cast, not those actually cast. So, regardless of how counted, the majority for purposes of determining the nominee will remain 1,237 absent a change in the Rules.
At the last Rules Committee meeting, one change passed provides that votes for candidates not in nomination would be recorded by the Convention Secretary, but not included in the tally to determine the nominee. The inclusion of recorded votes in the minutes, but not tallied votes for electing a nominee would not change the need to get to 1,237.
Not surprising, some now question why such recorded but not tallied votes should not impact “the votes entitled to be cast in the convention.” Absent a change in the rules, however, the 1,237 threshold will remain as the threshold for any candidate to become the nominee.