The Rules of the Convention: Part Two — Delegate Selection and Binding

In multiple past posts, I and others on this site have discussed the procedures by which delegates are allocated to the states and how candidates then win delegate slots.  This post deals with the process by which real live human beings are chosen to fill those delegate slots.  When the nominee of the party is settled before the convention, the actual people serving as delegates simply confirm that decision.  In a contested convention, the delegates will have to actually decide the nominee of the party.  In such a circumstance, who is filling those slots can become very significant.

As with the more general rules, there are some similarities between the Democratic rules and the Republican rules.  There are, however, very significant differences — particularly in how the two parties assure that the delegates are actually loyal to their supposed candidate.

On the Democratic side, the national rules governing delegate selection are contained within the 2016 Delegate Selection Rules.  For the most part, these rules give the states some flexibility in the mechanism for choosing delegates.  District level delegates must be elected by some group — whether a convention or direct election on the primary ballot — from the district that those delegates will represent.  The pledged party leader delegates and at-large delegates can be chosen by a state convention, by the state party’s state committee, or at a meeting of the district-level delegates.

The key feature of the Democratic rules for assuring the loyalty of delegates is the right of review by the presidential candidates.  While there are some variations permitted, all states must have some process by which the names of would-be delegate candidates are submitted to the presidential campaigns.    For those states that select district-level delegates on the primary ballot, the campaigns are only required to approve one delegate candidate for each delegate slot from that district.  For all other states, the campaigns need to approve three delegate candidates for each delegate slot that they won in the district.  For the other delegate slots, depending upon state party rules, the campaigns only need to approve one or two delegate candidates per delegate slot won.  In most cases, there are more than enough would-be delegate candidates that the campaigns do not have to accept a delegate of dubious loyalty.  (My own personal experience in my state which uses a post-primary convention system is that the campaigns do not vigorously exercise their right of review trusting on the process and the good-faith of the participants to weed out disloyal delegate candidates.)

The Democratic rules do not formally bind the delegates to any presidential candidate.  (There was a binding rule in 1980, but that rule was repealed for subsequent cycles.)  Instead, Rule 12.J provides that delegates “shall in all good conscience reflect the sentiments of those who elected them.”

The Rules of the Republican Party  are similar to the Democratic rules in terms of delegating to the states control over the delegate selection process.  Rule 16(d)(1) permits a state party to use a primary election, the state committee (if authorized by state law), state and district conventions, or any grandfathered delegate selection process.

Unlike the Democratic rules, the Republican rules do not contain any national rule that gives campaigns the right of review over potential delegates.  While some states do grant the campaigns that opportunity, other states do not.  In many proportional states, the delegates are elected and then allocated to various presidential candidates (with some rule for which delegates go first in picking their preferred candidate, leaving some delegates near the bottom of the selection process being allocated to whichever candidate is “short” on delegates even if those assigned delegates do not actually support that candidate).

As could be expected, the above process does not guarantee that the personal preferences of the delegates match the results of the state’s presidential preference vote.    In past cycles, the only protection for presidential candidates were state binding rules — some of which apply for one ballot and some of which apply for multiple ballots.  In 2012, there was a major issue in which the Ron Paul campaign did a good job of getting Paul supporters selected by delegate selection conventions even in states in which all of the delegates were bound to other candidates by state party rules.  However, it was debatable whether state binding rules were enforceable at the national convention.  In response, the Republicans adopted the current version of Rule 16(a).  Under Rule 16(a)(1), if the state has a presidential preference vote that vote must be used to bind delegates (unless the delegates are elected directly on the primary ballot).  Under Rule 16(a)(2),  during the roll call, the Secretary of the Convention is required to record the vote in accordance with the binding rules, even if a delegate attempts to defect.  Similarly, for the purposes of whether a candidate has sufficient support to be formally placed in nomination (a topic of the next post on the rules of the conventions), the Secretary of the Convention disregards any defections.  (However, the national rules do not allow the removal of a delegate who attempts to defect).

This disconnect between binding and personal preference creates interesting possibilities for a multi-ballot convention.  Assuming that no candidate wins more than 1,100 delegates, at some point the delegates will no longer be bound and will be free to vote their true preferences.  At that point, the campaigns that have worked the delegate selection process will gain votes at the expense of other campaigns.   Even that might not be enough for any of the current candidates to get a majority.  At that point, all bets are off, and it is unclear whether any party leaders will have sufficient influence to deliver a block of delegates.  (While the Republican rules give greater influence to state party leadership in the selection of the delegation, grass roots activists also have a significant role — even in the Republican Party — resulting in  a large number of “free agent” delegates who will make up their own minds if a contested convention becomes an open convention.)

Another issue for the conventions is that, for both parties, the rules on binding are part of the delegate selection rules.  They are not part of the procedural rules for the conventions.  On the Republican side, there are already some individuals who are suggesting that, even though Rule 16(a) suggests that delegates are bound at the convention, Rule 16(a) does not bind the delegates at the convention because they are not part of the convention rules.  These individuals also suggest that state binding rules do not need to be enforced by the national convention.  Whether or not the Permanent Chair and the Secretary of the Republican Convention enforce Rule 16(a) (and the result of any appeal of the decision of the Chair) could determine whether a certain presidential candidate whom the party leadership opposes wins the Republican nomination.

Because the issue of what the actual convention rules have to say about the presidential vote could become significant, that will be the topic of the next post on the rules of the conventions.

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