In Defense of a Contested GOP Convention
With big wins on Tuesday in Hawaii, Mississippi, and my home state of Michigan, Donald Trump cemented his status as the front-runner for the Republican nomination. However, despite the fact that the news media and pundits yearn for a coronation adorned with lavish spreads of Trump steaks, they have lost sight of the fact that the billionaire’s delegate acquisition has dramatically slowed. Whether Trump ends up with 1,236 or 1,050 delegates, which are both valid possibilities based on current trends, it is not only legitimate for convention delegates to begin considering options on multiple ballots, it is in fact incumbent upon them to do exactly that.
First, it is important to understand the rules. Most delegates are legally bound during the first ballot in Cleveland to cast their vote in accordance with the results of their respective home-state primary or caucus. If a delegate attempts to vote for someone other than the candidate for whom the delegate is bound, Rule 16(a)(2) of the Rules of the Republican Party explicitly states that “such support shall not be recognized.” Although the majority of delegates are bound per Rule 16(a)(1), most delegates are freed from their bindings after the first ballot, and even more are freed after a second or third ballot. The timing of when a delegate is freed from his or her commitment is a product of that delegate’s state party rule or state law. Under Rule 40(e), if no candidate receives the majority of delegate votes on the first ballot, the balloting must continue until a nominee receives a majority of delegates.
The delegate system was set up for a reason. If the party had wanted the candidate with the most, but not majority of delegates going into the convention to be automatically coronated, then the rules certainly could have been written that way. But they were not. Under that system, Ronald Reagan would have been forced to fold his cards in 1976 when Gerald Ford had a narrow delegate lead going into Kansas City. Going back even further, President James Garfield went into the 1880 convention in Chicago without any delegates, but as the voting continued to multiple ballots, Garfield ended up winning the nomination on the 36th ballot.
In other words, just as winning the Iowa Caucus or the Puerto Rico Primary doesn’t make a candidate the Republican nominee, neither does having a plurality of the delegates going into the convention. Rules have meaning, and the drafters of the rules determined that a majority of delegates was required to become the Republican nominee, not a mere plurality. In fact, Rule 40(b), which requires that a candidate have a majority of eight state delegations prior to being voted upon, was intended as a democratic check and balance that made sure the delegates, and not party insiders, had control of the process.
As a prominent attorney at Trump’s law firm has explained, party leaders won’t have the ability to steal or broker a convention because there are no “brokers” left in the Republican Party. A fair and transparent process is critical, but there is no principled threshold for an insurmountable lead other than the 1,237 delegates proscribed in the party rules. If neither Donald Trump nor Ted Cruz possesses a majority of delegates going into the convention, but are close, their supporters should rest assured that the democratic process will persevere in Cleveland.
While Donald’s latest delegate haul may send thrills up the legs of MSNBC pundits, Les Moonves, and Trumpian apologists, they would be wise to think twice before popping the latest vintage of Trump wine. A vigorously contested convention among candidates below the 1,237 delegate threshold will be democratic and leave selection of the party’s nominee in the hands of the people—just as the rules intended.
Charlie Spies served as election law counsel for the Republican National Committee, CFO and counsel for Mitt Romney’s 2008 presidential campaign, and counsel to Restore Our Future in 2012, the largest super PAC in history. Spies is the leader of Clark Hill’s national Political Law practice.