As each week passes, it is looking more and more likely that the Republicans are facing the great white whale of politics geeks — the contested convention. While as discussed earlier, it is likely that the campaigns will maneuver to change the rules governing the convention, there are also some games that the candidates can play within the existing rules as set forth in the Rules of the Republican Party.
We have already seen one type of game being played — trying to “steal” pledged delegates. As noted at this site, the national rules of the Republican Party do not give candidates the right to have input into the delegates pledged for that candidate, leaving it to the states to define what role (if any) candidates have in delegate selection. As the folks at 538 have noted, the majority of Republican delegates are selected by party conventions or committees. While each state has slightly different rules, a candidate with a good delegate selection strategy can slip his supporters into slots allocated to other candidates. While these delegates are supposedly bound by state party rules and Rule 16 to vote according to their pledge on the first ballot, those state rules only bind the delegates for a certain number of ballots (mostly only the first ballot). If nobody gets a majority on the first ballot, these stolen delegates could decide who wins on the second or third ballot.
The other games involve interpretation of the rules and the use of uncommitted delegates.
As has been noted elsewhere by a member of Rules Committee of the Republican National Committee (who has a good chance of being on the Rules Committee of the Republican Convention), the rules of the Republican Convention do not actually include any provision on binding. Rule 16 (the binding rule) is part of the rules for convening the convention, not part of the rules of the convention. If some delegates wished to violate Rule 16 and the equivalent state rules, potentially the majority of the convention could overrule any attempt by the Chair and the Secretary to enforce those rules.
The next series of games involve the language in Rule 40. Rule 40 requires the written support of the majority of delegates from eight delegation. This rule requires more than a candidate finishing first in a state. It requires winning a majority of a delegation and getting those delegates to sign the written pledge of support.
The first game is delegates refusing to sign a pledge of support. Rule 16 binds a delegate to support a candidate on the first ballot and prevents that delegate from signing a pledge of support for another candidate. It does not require the signing of the pledge of support for that delegate’s candidate. This is less likely to be a problem in the handful of winner-take-all states. However, in the proportional states, some candidates (primarily Donald Trump) barely won a majority of the delegates. If some of his delegates do not really support Trump, their refusal to sign a pledge of support could keep Trump from having a majority in that state.
The second game involves the issues of whether delegates are released. Rule 16 says nothing about when a delegate is released — either in terms of the roll call or for signing a pledge of support under Rule 40. In particular, Rule 16 is silent as to whether a candidate who has withdrawn can voluntarily release his/her delegates. Rule 16(a) merely states that, if a state party has a presidential preference vote (and some states have opted not to have a presidential preference vote), that vote “must be used to allocate and bind the state’s delegation” except for those delegates directly elected on a primary ballot (in Illinois, Pennsylvania, and West Virginia). Rule 16(b) provides that the exact rules for selecting, allocating, and binding shall be determined by the states. Based on Rule 16(b), the assumption is that state rules will govern when delegates are no longer bound. For those candidates who have already dropped out, there has already been some controversy about whether their delegates are released or reallocated — with Alaska first reallocating Rubio delegates after Rubio suspended his campaign and then restoring Rubio delegates when Rubio insisted that he was not releasing his delegates. Assuming the Chair of the convention interprets Rule 16(b) as making the issue of bound or released a matter of the rules of each state, there is a wide variety of rules governing the twenty delegations that have delegates theoretically bound to candidates who have dropped out — some automatically releasing delegates, some requiring a formal statement from the candidate releasing delegates, and some not containing any provision authorizing the release of delegates. Similarly, while most states treat delegates as bound for only the first vote, some states bind the delegates for more than one vote.
The significance of when delegates are released matters both for Rule 40 nomination (as a bound delegate can only sign a pledge of support for the candidate that they are bound to) and the actual roll call. For the purposes of Rule 40, the binding is most likely to matter for three delegations. In the District of Columbia, Rubio has a 10-9 majority over Kasich. The D.C. rules suggest that Rubio’s ten delegates are released. If Kasich can convince one of those ten delegates to sign a pledge of support for Rubio, that would give him a majority in two delegations. In Puerto Rico, the local rules suggest that the delegates are bound. Rubio won all twenty-three delegates. A ruling from the chair permitting Rubio to release those delegates would potentially give Kasich a third delegation. (Alternatively, D.C. and Puerto Rico could be two states to place a compromise candidate before the convention).
Assuming that the state rules govern for the roll call, there are approximately sixty delegates pledged to withdrawn candidates who are now free agents on the roll call, and forty more that could be released. If the lead candidate fails to win 1,237 pledged delegates, these delegates might become important. More significantly, if the chair throws out the state rules and treat all of the delegates pledged to candidates who have withdrawn as free agents, the number would rise to one hundred eighty-eight. Added to the uncommitted delegates, a broad release might make it possible for Cruz to get to a majority on the first ballot.
The Virgin Islands are a hybrid between this game and the next game. Originally, the Virgin Islands elected six uncommitted delegates. However, the party chair, ruled that the winners failed to comply with local rules confirming their acceptance of election and replaced them with the alternates — two Rubio delegates, one Cruz delegate, one Trump delegate, and two uncommitted delegates. The composition of the Virgin Islands will probably be an issue for the Credentials Committee. Under Virgin Island rules, the two Rubio delegates might be unbound.
The third game a the convention will be the uncommitted delegates, both for Rule 40 and for the Roll Call. Currently, American Samoa (nine uncommitted delegates out of nine delegates), Guam (eight uncommitted delegates out of nine delegates), North Dakota (twenty-eight uncommitted delegates out of twenty-eight delegates), and the U.S. Virgin Islands (five to nine uncommitted delegates out of nine delegates) have a majority of delegates who are uncommitted. In Pennsylvania, fifty-four of the seventy-one delegates will be officially uncommitted. That is five delegations in which the majority could theoretically support any candidate. Added to D.C. and potentially Puerto Rico that gives seven delegations that will be free agents for Rule 40 purposes.
As to the roll call, there are currently approximately seventy uncommitted delegates (plus the fifty-four from Pennsylvania). While some of these individuals have made statements indicating whom they are leaning towards, they are technically free to change their minds. Between the officially uncommitted and the delegates pledged to withdrawn candidates, there will be over three hundred delegates not legally bound to any of the remaining candidates. In a contested convention, these three hundred will have a very big influence.
The fourth potential game will be hair splitting about what is a “majority” of a delegation. There are several delegations with an even-number of delegates. The most significant of these delegations is Vermont which was an 8-8 split between Trump and Kasich. If the chair treats 50% of the delegation as being enough for Rule 40, that is an extra state for Kasich — added to DC and the five other “uncommitted” delegations, Kasich could have eight delegations for the purposes of Rule 40 (if the party leadership wants Kasich to be formally placed in nomination).
The fifth potential game is whether nominations can be re-opened after the first ballot. Rule 40(b) suggests that there is just one time to placing a candidate’s name in nomination. However, either through creative interpretation of the rules or through formally suspending the rules, it is possible that the chair would allow additional candidates after the first ballot.
Which if any of these games might arise during the convention is unclear at the present time. But there is wiggle room in the current rules for a permanent chair to put his or her thumb on the scale (particularly if supported by a majority of the delegates at the convention). Because the current binding rules only apply to the presidential vote, we end up back where we started — with stolen delegates. A Cruz delegate in Trump delegate clothing could support a pro-Cruz chair — both in the vote for permanent chair and in any challenge to the chair’s rulings on matters that could aid Trump or Kasich.
It is important to remember that — at the present time — we only know that Paul Ryan is the temporary chair of the convention. For the first time in living memory, there might actually be a battle over who will serve as permanent chair. While chairs are supposed to be fair and neutral, the odds of that happening at a contested convention are very, very slim.