Earning and Electing Delegates – and the 2016 Presidential Nomination Process
Hat tip to Donald Trump. Fresh off a significant loss in the Wisconsin primary, and caucuses and conventions in several other states, and coming into the critical NY primary, Trump needed to 1) change the narrative and 2) cast himself, his campaign, and his supporters as victims. Victims of a self-described corrupt, “rigged” process by “establishment insiders”. His target, Ted Cruz and the RNC. According to Mr. Trump, Ted Cruz was and is out there gaming the system and stealing delegates and the RNC rules were stacking the deck against him and the voters.
Trump has played this brilliantly, healthily supported by surrogates, much of the media, and an unfortunately uninformed or purposely misinformed electorate.
But what is this really all about? Is the nominating process “rigged”?
A Little History and Perspective
“One person, one vote” is revered as a democratic principle. It is what democracies are all about. But then, just as the United States is not a democracy, neither is the party nomination process – nor our Presidential elections. Truth is, historically, we didn’t directly elect either our Senators or the President or Vice President. The only directly elected representatives for Federal office are the House of Representatives. In the earlier years of our Republic, it was the various State legislatures who elected the Senators and the President. Populism was not well thought of by the Founders.
Today, in general elections, the states elect the Presidential ticket, awarding their electors through a popular vote. I live in Oklahoma and we have seven electors – one each for our Senators and one each for our five Congressional Districts. We don’t count a whole lot in the general election. Big states like New York, Florida, California, Texas, Ohio, Illinois, Pennsylvania and Virginia tend to rule the day. In each state, it is ‘majority rules’. Fifty percent plus one wins all of that state’s electors. As we know, to win the Presidency, a candidate must garner 270 electoral votes, the majority of the 538 available.
Hypothetically, let’s say that Donald Trump made good on an earlier threat and had left the Republican party and launched an independent run. A three-way race may well have ended in no candidate reaching the critical 270 Electoral College total. Would we ‘award’ the Presidency to say, Hillary Clinton, who won 265 electors? No. In the event no candidate reaches the magic majority number, the Constitution calls for the House of Representatives, the duly elected representatives of the people, to determine the victor. The last time this occurred was 1824. The election of a President is not “one person, one vote” – heck, we have had four Presidents elected that lost the popular vote.
But what about the party nominating process?
This is a little messier, and more confusing to many. It’s probably not a stretch to say that most Americans believe we essentially have 50 state primaries leading up to a Party convention and ‘coronation’ of the winner. Not so.
Let’s start with the fact that a Party is a private institution. The Democrat Party, Republican Party, Libertarian, Conservative, Green or whatever – they are each private institutions that determine their own rules and process. And while the national organizations (RNC, DNC) have significant power, the real power lies in each State, Congressional District, County and Precinct – the voters.
If you have been following the 2016 process, you have no doubt noticed that the parties have different approaches and rules. The Democrats currently have proportional awarding of delegates in all states (and territories). They also have what are known as “super delegates”, mostly party elites and elected officials, numbering 712, or roughly 15% of the delegate total. And they are unbound.
Differing from the Democrat proportionality requirement, in the GOP the states are given far more flexibility. States may opt for a primary process, a caucus, or a convention to determine (elect) their delegates to the National Convention. And the states are free (for the most part) to choose either proportional, winner take all, or a hybrid in awarding delegates. Whatever the individual states opt for, these rules are set well in advance of any voting.
The most recent example of a primary is New York. New York is a bit of a hybrid. If you take 50% plus one statewide, the winner receives all the ‘state’ delegates. Similarly, if a candidate takes 50% plus one in a Congressional District, they get all three of the delegates for that District. If they don’t reach that threshold, the one receiving the most votes is awarded two delegates and the runner up receives one delegate. I won’t get in the weeds on thresholds and the like – you get the idea. So, in the case of New York, Trump won almost all the delegates (89 out of 95), though he only garnered 60.4% of the popular vote – again, not exactly “one person, one vote”.
Next up are caucuses. Here a Party holds caucuses (meetings) throughout the state. Everyone who chooses to participate shows up at the appointed location and time of their caucus. The candidates, or their representatives, are invited to speak and present their case. Electioneering is rampant at these meetings, by both the candidates and your neighbors. Votes are often swayed in the generally several hour process. And votes are cast. Think Iowa or Nevada, among others. Again, votes are by precinct, and then rolled up to counties and so on, and delegates awarded according to the results, whether proportional or winner take all.
And then there are states that have chosen to hold conventions – like Colorado. Colorado previously held a straw poll (election of sorts), but national party rules, more recently enacted, would have forced the Colorado state party to ‘bind’ their delegates with the result of their straw poll. The Colorado GOP didn’t want to do that, and opted for a Convention process.
So Colorado held its series of precinct, county, district and ultimately state conventions. In all, some 65,000 Coloradans participated and voted for their delegates. So were Colorado voters disenfranchised? No.
What is critically important about the Convention process is to understand that every Colorado Republican had the choice and opportunity to participate and have their vote count, by simply showing up. The process (in all states) is open to all registered Republicans. The party locals there, and elsewhere, publicize these meetings and conventions. They want citizens to participate, to get involved in the process. The party understands that those who participate in nominating processes (primaries, conventions, caucuses) are often those who are or become their grassroots supporters, as door knockers, phone bankers, or get-out-the-vote helpers at general election time. The point is that the process is open to all – no special handshake to learn, no dues to be paid, no ‘establishment’ to join. Just show up and vote. Oh, and no corruption or ‘rigging’.
To reiterate, the states set almost all the rules, not the national party or ‘establishment’. And the RNC only sends 3 delegates to the Convention (and each is bound to their state’s primary winner).
In my state, Oklahoma, we hold a primary. In that primary, Ted Cruz won the most votes with 34%, Trump had 26% and Rubio had 24%. We are a proportional state, so Cruz took 15 delegates, Trump 13, and Rubio 12. In Oklahoma, those delegates are bound not only for the first ballot, but also any additional ballots that may occur at the National Convention (if the candidate is on the ballot at the convention). So, as an example, if Rule 40B stays in place at the National Convention, only Trump and Cruz would qualify to be on that ballot for nomination. As Rubio will not appear on the ballot, the Oklahoma delegates bound to Rubio may vote for whomever they choose.
While the primary determined how many delegates would be bound to each candidate, the delegates themselves have not all been selected (elected) yet. Some have been elected at the various District Conventions we have held recently. The balance will be elected at our State Convention in May. At our State Convention, we will also select one man and one woman as our representatives on the Convention Rules Committee – more on that in a minute.
Smart candidate campaigns involve themselves early on to cultivate a slate of delegate candidates. While important in all states, this is especially true for states that bind their delegates to only the first ballot at the National Convention, or don’t bind their delegates at all (like Pennsylvania). Candidates obviously hope to have delegates elected that will remain loyal to them if the nomination process goes to multiple ballots. Doing the ground work early on is critically important, but it is a process that continues through to the District and State Conventions, and the National Convention itself.
Much ado has been made of Ted Cruz’s efforts to win over delegates for second and subsequent ballots that are pledged on the first ballot to another. But this is not a stealth campaign. These delegate candidates run for that ‘office’, and in most states, declare their candidate choice in their campaign. Again, they are elected, not appointed by some party insider, nor are they bought.
The National Convention – July 2016 – Cleveland, Ohio
It looks increasingly likely that we will not have a candidate reach the magic 1237 bound delegates prior to the convention to assure a nominee is chosen on the first ballot in Cleveland in July. Let’s step back for a minute and review the role of the rules committee and Rule 40 (b) specifically.
Prior to the Convention being gaveled in, the Convention Rules Committee will meet to determine the rules for the convention. You can go the RNC site to review the entirety of the rules, but for now let’s look at Rule 40 (b). That rule is probably the most critical one in this process. It states,
Rule 40(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a 40 of 42 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. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business.
Simply put, only Trump and Cruz will qualify to have their names on the ballot. We don’t yet know who will comprise the Rules Committee. Each state and territory will send two delegates to represent them on the rules committee, for a total of 112 members. These rules committee members are selected (elected) at the State Conventions from among the elected delegate field. As Cruz and Trump will likely have about 3/4 of the delegates coming into the Convention, they should have the controlling majority, making it very unlikely that Rule 40b will be changed.
Once the Convention is gaveled in and the rules voted on and accepted by the majority of the Convention delegates, those two names, Donald Trump and Ted Cruz, will be placed in nomination and voting will begin. States will be called on to cast their votes, each according to their state rules governing the first ballot. For my state the wildcard will be those 12 delegates awarded to Marco Rubio. Will they choose Trump or Cruz? While not bound, most have indicated a preference for Cruz. Similarly, in other states, many of those delegates won by Rubio, Carson and so on, will be free to cast their votes for either Trump or Cruz, as will the 150 or so coming into the Convention unbound (like the majority of the Pennsylvania delegation). Should Trump enter the Convention within say 50 – 100 delegates short of 1237, he may find the balance needed from those unbound delegates. If not, the voting continues to the second ballot, where the vast majority of delegates will become unbound. Back to Rubio, only 37 of his delegates are free to vote their conscience on the first ballot and 96 on the second. Rubio could, of course, release his delegates in advance. Though there are a few states that preclude their delegates from being released.
In all likelihood the Republican Party should have a nominee via either the first or second round ballot, though a third is certainly possible. But balloting will continue until one candidate achieves the magic majority of 1237.
At the heart of this whole process is a bias toward state’s rights, representative governance, and protection of the party brand and platform. The party’s eventual nominee will, win or lose, be the de facto leader and face of the party for four years, as well as its key spokesperson. So they have a strong interest in that nominee being reflective and supportive of the platform and values held by the party and its registered members.
And, at the heart of the discussion over whether or not the process is fair, open and inclusive, hopefully you see that it indeed is – if you are willing to show up and be counted.
It will be interesting to watch it all unfold.