As Matt noted yesterday, Alaska has formally announced the reallocation of its delegates in light of Marco Rubio’s decision to suspend his campaign. However, Alaska is not the only state in which Senator Rubio “won” delegates. Additionally, in several of those states, Senator Rubio is not the only “former” candidate who won delegates. Given that, at least, some elements of the Republican Party leadership are hoping for a contested convention what happens to these delegates could play a key role in how realistic that hope is. As with anything else dealing with delegate selection, the answer is a mixture of current and future rules of the state parties (some established by state law) and the national party.
Starting with the state party rules, the states that have voted so far (ignoring the states that only picked Trump, Cruz, and Kasich delegates) tend to fall into three categories: 1) delegates expressly bound by rules (with no provision for delegate release); 2) delegates bound unless released by the candidate; and 3) delegates automatically released (i.e. unbound/unpledged/uncommitted) when a candidate withdraws from the race. Additionally, two states do not fall into this structure. In chronological order:
Iowa — 7 Rubio, 3 Carson, 1 Paul, 1 Bush, 1 Fiorina, and 1 Huckabee delegates (14 delegates total). Iowa rules bind the delegates with no provision for releasing delegates.
New Hampshire — 2 Rubio and 3 Bush delegates (5 delegates total). New Hampshire state law treat these delegates as unbound.
Nevada — 7 Rubio and 2 Carson delegates (9 delegates total). Nevada is one of the two weird states. Between now and the state convention (end of April), Rubio and Carson will have to choose one of three options — keep their delegates bound, unbind their delegates, or have the state reallocate their delegates. There are also provisions within the rules that allow the reclaiming of unbound delegates between the state convention and the national convention.
Alabama — 1 Rubio delegate. Under Alabama rules, this delegate is bound.
Arkansas — 9 Rubio delegates. Under Arkansas rules, this delegate is bound unless formally released.
Georgia — 16 Rubio delegates. Under Georgia rules, these delegates are unbound.
Massachusetts — 8 Rubio delegates. Under Massachusetts rules, these delegates are bound unless formally released.
Minnesota — 17 Rubio delegates. Under Minnesota rules, these delegates are unbound.
Oklahoma — 12 Rubio delegates (plus 3 delegates allocated as uncommitted). Under Oklahoma rules, these delegates are unbound.
Tennessee — 9 Rubio delegates. Under Tennessee rules, these delegates are bound.
Texas — 3 Rubio delegates. Under Texas rules, these delegates are unbound.
Virginia — 16 Rubio delegates and 3 Carson delegates (19 total). Under Virginia rules, these delegates are bound.
Kansas — 6 Rubio delegates. Under Kansas rules, these delegates are bound until released.
Kentucky — 7 Rubio delegates. Under Kentucky rules, these delegates are bound unless the candidate submits a formal withdrawal in writing to the state party (in which case they become unbound).
Louisiana — 5 Rubio delegates (plus 5 allocated as uncommitted). Under Louisiana rules, these delegates are unbound.
Puerto Rico — 23 Rubio delegates. Under Puerto Rico rules, these delegates are bound.
Hawaii — 1 Rubio delegate. Under Hawaii rules, these delegates are unbound.
District of Columbia — 10 Rubio delegates. Under D.C. rules, these delegates are unbound.
Wyoming — 1 Rubio delegate (and 1 uncommitted delegate). The rules are silent as to binding.
North Carolina — 6 Rubio delegates. Under North Carolina rules, these delegates are bound.
Applying these rules (and including 17 unbound delegates from the Virgin Islands and Guam), the revised counts are (assuming Rubio and Carson keep their Nevada delegates). Rubio has 100 delegates (of which he can formally release 37 delegates), Carson has 8 delegates (and can formally release 2), other former candidates have 4 (and can release 0), and 95 are currently uncommitted. It is important to note that different states have different rules for delegate selection. Some of these present and former Rubio delegates are spots waiting to be filled (and the remaining candidates will fight to fill them with delegates who once uncommitted will support a particular candidate), but others are already real live people who have been elected as a delegate to the national convention (meaning that rather than persuading a state committee or a state convention to put a thumb on the scale, the remaining candidates have to woo these actual delegates).
Of course, the state rules do not control what the national conventions does. For both parties, the rules of the national convention are tentatively set by the parties before the delegate selection process starts and are only formally adopted once the convention begins. For the Republican Party, the convention rules are actually part of the by-laws of the Republican Party. Unless the current convention creates an exception (as the last convention did for this cycle), the only way to change the presumptive rules for the 2020 cycle for the Republicans is to change the current rules at the start of the convention. In part for this reason, the Republicans tend to play looser with changing the rules during the middle of the process as Doc Jess has discussed.
Assuming no changes at the Republican convention (and there has been discussion of such changes), the current rule on binding is Rule 16. Rule 16(a) requires any state that holds a preference vote to use that vote to allocate delegates (unless delegates are directly elected in a primary — currently Illinois, Pennsylvania, and West Virginia are using this exception). Rule 16(b) allows the states to choose the process for allocating and binding delegates as long as that rule is consistent with the national rules. It is unclear if a state rule that allows for a delegate bound under Rule 16(a) to become unbound is consistent with Rule 16(a). Rule 16 does not include any provision for the release of any delegate by the presidential candidate and the binding under Rule 16 also applies to the “show of support” required under Rule 40 for a candidate to have his name formally placed in nomination. (Rule 16 implies that delegates must vote for their pledged candidate even if that candidate has not been formally placed in nomination.)
Of course, nobody knows what Rule 16(a) and Rule 16(b) mean until the roll call of the states. Again assuming no changes in the rule to clarify these issues, in a contested convention, there could well be a request for a ruling from the chair as to the proper vote from one of these early states. Unless Donald Trump secures a clear majority of delegates (not just in the “bound” sense but in the election of actual Trump supporters to fill those slots), the chair will be chosen by the party establishment (the temporary chair is Paul Ryan) and the chair could use that power to cripple Trump’s candidacy.
For now, these 185 delegate slots elected either as uncommitted or pledged to a former candidate are a barrier between Trump and the nomination. If Trump can persuade enough of these individuals to support him, the question then becomes whether the convention will interpret its current rules to allow these delegates to support Trump on the first ballot (while all of the nominal Trump delegates are bound to support Trump on the presidential vote).
One last caveat. In many states, the state Republican parties do not give candidates the right of refusal over potential delegates. Instead, the delegates are elected by party meetings and the rules for those meetings govern who becomes a Trump delegate or a Cruz delegate. It is entirely possible for these meeting to slate anti-Trump individuals as the Trump delegates from the state. While those delegates are bound to support Trump (under current rules) on the vote for nominee, they are not bound to support Trump’s position on other issues. Most importantly, these “Trump” delegates could support rules changes or appeals of the chair’s rulings about the application of the current rules that make it impossible for Trump to win on the first ballot. If Trump does not win on the first ballot, these delegates would then be able to vote their personal preference on the remaining ballots.
Here’s my idiot question — while the delegates must remain bound in some of the states, Rubio and all the others except Cruz (assuming he outright wins one more state) cannot have their names entered into contention for the nomination under Rule 40 (b) — any thoughts on whether the mileposts move and those delegates don’t count towards the total? Or do you think (as I do) that the GOP will just change the rules once they get to Cleveland?
There is a potential conflict between Rule 16 and Rule 40.
My read of Rule 40 is that any candidate who does not get a majority of the delegates in 8 states — as required under Rule 40(b) — does not get to have nominating and seconding speeches under Rule 40(c). Currently, Trump is the only candidate with an absolute majority in eight states. Cruz has an absolute majority in four states — Idaho, Kansas, Maine, Texas. With support from unbound Rubio delegates, Cruz could get a majority in three more states — Arkansas, Louisiana, Minnesota. Cruz is leading in Wyoming, but needs some of the still-to-be-chosen at-large delegates to get a majority. I expect Cruz to get a majority of the delegates in Utah, Wyoming (when it finishes its process in April), and Colorado. While technically unbound, I would not be shocked to see Cruz have the support of the majority of the delegates from North Dakota. In short, I think Cruz will get to 8 states under the current rules. Additionally, including the unbound Rubio delegates, uncommitted has a majority in D.C., Guam, and the Virgin Islands (which could go to Kasich or Cruz). Kasich is less likely to get to 8, but could possibly get there with strong showings in places like Washington, Pennsylvania (even though their delegates are technically unbound), New York, and California.
Rule 16(a) still requires the delegates to vote (and the Secretary) to record the vote as allocated by the primaries and caucuses to any active candidates (even if those candidates did not get to be formally nominated under Rule 40). Under Rule 16 that binding also goes to pledges of support for candidates for the purposes of Rule 40. Thus, if Rule 16 and Rule 40 are not changed, the delegates still bound to Rubio (and Carson and the others) count as part of the state delegation and may keep any candidate from having a majority of some state delegations.
The Republicans are likely to change the rules when they get to Cleveland. The rules governing the convention are part of the rules of the Republican Party. Under Rule 12, the rules governing conventions can only be amended by a national convention (unless they again create a temporary window for amendment by the RNC). In fact, the Republican rules expressly state that rules 26-42 are only the temporary rules of the upcoming convention. Since you are already having some comments by RNC members against binding delegates, I am expecting that Rule 16 will change (whether prospectively for 2020 or for this convention too is unclear, but remember 1980 when the Democrats had this same fight on the convention floor). As noted above, my read of Rule 40 is about who can demand the right to speak at the convention. In 2012, the Republicans did not want a speech about how great Ron Paul’s ideas were and why Romney was wrong on the issues. This time, they might want to have a speech expressing mainstream conservative values.
My reading of 40 b (lifted from their actual rule book) is: (b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or
more states, severally, prior to the presentation of the name of that candidate for nomination.
Thus — they’ve got a problem….but you’re the lawyer….so I’ll cede to your reading.
In 2012, with a similar rule, only Romney was placed formally in nomination, but other candidates got votes during the roll call. At any convention of either party, fhe chair is the initial arbiter of the meaning of the rules with the final arbiter being the convention itself via an appeal of the ruling of the chair. Assuming that nobody has a majority of the delegates on the first ballot, I can’t see the chair of the convention using current rule 40 to preclude votes for and the ultimate nomination of a compromise candidate if that is the way that the convention decides to go.
Oy vey — that’s Paul Ryan. All I can say is that the GOP is better at moving goal posts than any other organization in history — they do it all the time. We’ll see if there even IS a rule 40b by July.
It may depend upon how Kasich does. If he does well enough, my hunch is that they go back to the old Rule 40(b) — plurality in five states. The current rule was designed to keep fringe candidates from getting to have nomination speeches. Since it is a tool for managing business on the floor of the convention, not for controlling who actually wins (Rule 16 does that), it will change to reflect how the leadership wants the convention business managed.