A Self-Fulfilling Contested Convention?

Invisible Primary: Visible -- Thoughts on the invisible primary and links to the goings on of the moment as 2024 approaches...

First, over at FHQ Plus...

• Folks may sleep on the tightening Alabama Republicans did to their 2024 delegate selection over the weekend, but they will miss an important story. Last week in this space, FHQ discussed how the Trump campaign is "smoothing over any rough edges" in the delegate allocation/selection rules it missed last time around. The Alabama change illustrates that well and show the minute details Team Trump is nailing down for 2024. All the details at FHQ Plus.

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In Invisible Primary: Visible today...

...

Tim Miller had an interesting piece up at The Triad yesterday picking up on a line of thought within DeSantis World that parallels FHQ's thinking on the Republican presidential race in some ways:

But now at least one of Trump’s opponents is wondering if the frontrunner’s legal troubles could change the calculus and require candidates to stay in for the long haul in order to try and amass delegates in case there is a convention battle because the former president is . . . otherwise indisposed. 

This not the first mention of long-haul strategies from with the super PAC branch of the DeSantis campaign network. There is some delegate rules savvy there. But the broader point here, I think, is something Miller picks at but does not fully dig in on. And that broader point is that Trump's legal situation presents a level of uncertainty in a presidential nomination race that may, in turn, create incentives for candidates to stick around longer than they otherwise would, sans frontrunner legal trouble. 

But the game -- call it the self-fulfilling contested convention theory -- is about more than theoretically sticking around longer to gain as many delegates as possible to take into a convention that may be more open with a convicted leading candidate (or one under threat of such in the midst of a trial or trials). First of all, Miller notes that candidates may tough it out and win delegates in late proportional states. Well, that dog probably won't hunt. There just are not that many proportional states late in the process (depending on how one defines "late"). And honestly, there are not that many delegates late in the process. The 2024 calendar on the Republican side is one that will likely have allocated 80 percent of its delegates by the first week in April. 

And none of that considers funding for such an operation. The goal in theory may be to hold on, but candidates will need donors (or to convince donors) to fund that effort and delegate candidates to enthusiastically put themselves forward to fill any delegate slots that are allocated to any non-Trumps. If Trump is winning contest after contest next winter/spring, the well of support in both those areas is likely to be tapped out or at least less interested in expending the money, time and/or effort in a losing cause. 

In other words, the winnowing pressure will still be there despite the uncertainty Trump brings to the race. The calculus may be slightly different, but that pressure will still be there if other candidates are not winning. But that assumes Trump is still winning contests. He may not once the voting phase commences. 

But as of now there appears to be a bit of a deficit for others to overcome....

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It's not a national primary, but...

 

The latest Morning Consult tracking poll of the Republican presidential nomination race has Trump with a commanding lead and DeSantis flirting with another, even lower threshold in the delegate game. Most states with proportional rules have a qualifying threshold. Of them, the vast majority of those states have a threshold set to 15 percent or higher. A 20 percent threshold to qualify for delegates continues to be the modal threshold. Where does DeSantis sit in the tracker? 16 percent.

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And the outlook may not be any better for non-Trumps on the state level. 

No, the former president's share of support in the Granite state in a new co/efficient survey is lower than in national polling, but no one else even clears the 10 percent barrier to be allocated any delegate slots under New Hampshire rules. 13 percent were undecided and those candidates who placed second through fourth in the poll were all within the margin of error of the Republican delegate threshold in the Granite state.

Three of those top four -- Trump, DeSantis and Nikki Haley (in addition to Asa Hutchinson) -- will all descend on New Hampshire today. 

 

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From around the invisible primary...

• Generra Peck is out as campaign manager for the DeSantis campaign and James Uthmeier, the governor's chief of staff in Tallahassee is in. 
• Former Vice President Mike Pence had already hit the polling threshold to make the stage for the first Republican presidential debate later this month, but had been struggling to get to 40,000 unique donors for that threshold. That struggle is now over (for the first debate anyway).
• In the endorsement primary, Vivek Ramaswamy will gain the backing of Wisconsin state Rep. Nate Gustafson today.
• Ahead of his weekend visit to South Carolina, Trump picked up the endorsement of Palmetto state Speaker of the House Murrell Smith. There are not a lot of big name South Carolinians who have either not endorsed Trump or launched a bid themselves, so another second tier endorsement coming off the board -- and siding with Trump -- merits a mention.
• The Erie Times-News has a nice rundown of endorsements thus far on both sides in the presidential race in Pennsylvania.
• FHQ is late to this, but in the money primary, there are several candidates who are spending money at a potentially unsustainable rate according to Axios.
• There are four early states on the Republican primary calendar and all have Republican governors. One has made an endorsement. Henry McMaster (R-SC) has again lined up behind Donal Trump. But the remaining three are on the sidelines, and a second of those -- Nevada Governor Joe Lombardo -- has pledged to remind neutral in the race, joining Iowa Governor Kim Reynolds.

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The Clock is Ticking on Contested Convention Chatter

The 2020 Democratic presidential nomination process is far enough into the invisible primary now that contested convention stories are popping up at a pretty brisk pace. FHQ is not quite to the point of saying another day, another contested convention story, but we may not be that far off either.

But rather than take the latest one from Cameron Joseph over at Vice News and poke holes in it, I will take a different approach and ask a different question: How much longer should we the politically attentive public expect to deal with the quadrennial rite of contested convention speculation?

There are a variety of ways to look at this, but FHQ will take something of an indirect approach. Both events in primary season and media reactions to those events help to drive attention toward the possibility of a contested convention. So let's turn to the Google Trends data from the last three presidential election cycles, the three for which full data is available.¹ Rather than squeeze the full time series into one figure FHQ will break it into cycles, covering the trendlines for "contested convention," "brokered convention," and "open convention" from January 1 in the year prior to the presidential election year to January 1 of the year after the presidential election has occurred.

One thing is obvious from the figures below right off the bat: The term brokered convention remains the most used term for an unresolved nomination race at the convention stage.


2016
During the 2016 cycle, brokered conventions reached its search height during the first week in March, the week on which Super Tuesday fell during that cycle, and then trailed off thereafter. There was a surge in contested convention searches two weeks later during the mini-Super Tuesday that formed right as the proportionality window in the Republican nomination process closed, allowing state parties to allocate their delegates in a winner-take-all manner if they so chose. But again, that was the peak and it dropped off after that point. Certainly questions lingered as to whether either party's nomination race would remain unresolved for a prolonged period after Super Tuesday, but the searches petered out for the most part.


2012
There is a fairly similar pattern that developed during 2012 as well. The primary calendar was a bit more elongated in 2012 relative to 2016. Florida again jumped into January and forced three-quarters of the carve-out states to follow suit. But that left a significant lull in activity through the bulk of February. But the peak in brokered convention searches falls in a window that includes Super Tuesday (the first Tuesday in March) and extends to and through the following week. That second Tuesday in March featured a couple of competitive southern contests in Alabama and Mississippi that seemed like openings for Santorum and/or Gingrich to challenge Romney, but those opportunities were largely missed (in the delegate count).


2008
Finally, in 2008 a familiar pattern is again observed. Sure, Super Tuesday was a month earlier during that cycle compared to either 2012 or 2016, but it still represented the point of peak brokered convention searches.


That repeated pattern -- a Super Tuesday peak -- suggests a few things. First, this seems to have more to do with the calendar -- the collection of contests on Super Tuesday -- than say the number of delegates allocated by a certain point on the calendar. I say that because there was wide variation in the number of delegates allocated on or before Super Tuesday. It ranged from a high of 83 percent of the delegates allocated by the time Super Tuesday was over in 2008 in the Democratic process to a low of a little more than 25 percent once Super Tuesday was completed in the Democratic process of 2016.

Second, just because searches for brokered or contested or open conventions drop off after Super Tuesday, does not mean they (nor the stories and/or events that drive them) cease altogether. But the bulk of this is yet to come for 2020. The occasional contested convention story may come up as the Vice News story did yesterday, but they largely fall on deaf ears. Most just are not paying attention yet. There may be a mini surge of searches during particular junctures in the invisible primary, but those tend to pale in comparison to the peak of searches that seemingly tend to fall at or around Super Tuesday each cycle.

That finally appears to suggest that if 2020 follows the same pattern, the Democratic nominee may not yet be known, but that the process will be on the way to an answer by around Super Tuesday. And if a multi-way race persists to and through that point on the calendar, then we may not reach the height of 2020 brokered convention searches until later in the calendar.

But FHQ is not willing to make that bet just yet.

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¹ Google Trends stretches back into 2004, but not far enough to encompass the Democratic presidential primaries.


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On the Federal Lawsuit to Unbind Virginia Delegates

A new front has opened in the late-stage, intra-party battle over the Republican Party nominating Donald Trump in Cleveland. Those against the New York tycoon's nomination now have a multi-pronged approach that stretches beyond pushing for changes through the Convention Committee on Rules to now include legal action. A lawsuit has been filed in federal court by a Virginia delegate, Beau Correll, seeking relief from prosecution under Virginia code should he not vote for Trump at the convention.

There are advantages to allowing a convention of delegates to set the rules that will guide them as the Rules of the Republican Party allow. It grants the group the ability to tailor rules to suit a given convention at a given time and place. However, there are drawbacks to this approach as well. This lawsuit is one of them. The complaint the plaintiff brings in this case is expansive, but it boils down to a problem with the uncertainty of the rules that will govern the 2016 convention. If it was certain at this time -- that is, if the Republican Party had a locked-in set of rules -- that Rule 16(a)(2) was going to be in effect in Cleveland, then this case would be moot. There would literally be no potential for injury. In this instance injury is prosecution in Virginia for not following the candidate binding at the national convention as laid out in state law.

Even if the delegate voted contrary to how they were bound and even if the delegation chair from their state called out that "improper" vote in the tally, the secretary of the convention is charged under the current Rule 16(a)(2) with not recognizing that vote and announcing and recording it as bound. One could counter that that delegate vote was cast and contrary to the binding. In the sequence, that offending act according to Virginia state law precedes the secretary of the convention not recognizing it. The problem there is that there is no one at the convention from the Virginia State Board of Elections to say, "Beau Correll didn't vote according to how he was bound."

Furthermore, procedurally, the delegation chair does not call out individual votes. He or she announces the tally from the state. The bind breaker would not be known, then, unless there was a public poll (not a secret ballot) of the delegation by the chair of the delegation (and either the chair or another delegate comes forward with the revelation that someone has broken their bind). However, there is no procedure for this sort of voting in Republican Party of Virginia rules. Under those state party rules, there is no need for such a vote or poll of the delegation. Those results are already locked in based on the results of the March 1 presidential primary in the state.

All that is laid out in the Declaration and Statement of Qualifications that all delegate candidates in Virginia had to submit to run for delegate vacancies in the first place. Here is the important third and final paragraph from that form:

I further acknowledge, understand, and agree that if elected and if given the ability to vote at the Republican National Convention, my vote on the first ballot will be bound by the results of the March 1, 2016 Virginia Presidential Primary, in accordance with the Allocation Resolution adopted by the RPV State Central Committee on September 19, 2015. I further acknowledge that all costs associated with my candidacy and potential service as a National Delegate Alternate are my own responsibility. [Emphasis is FHQ's]

Now, the language here does leave open the notion that Virginia delegates will vote at the convention. Yet, that vote on the presidential nomination is bound based on the results of the primary under state party resolution and not state law. That is an important distinction because this lawsuit is being brought against the penalties in state law and not state party rules. State party actions bind the Virginia delegates.

What is missing is clear guidance from the party as to how the delegation chair is to behave at the convention. If the chair takes the vote in the primary as guide, then there is no need for a poll of the delegates. By extension that means that there is no potential for rogue action on the part of a delegate, no discovery of it and thus no violation of the state law. But if a vote is held -- and it would have to be public and/or someone from the Virginia State Board of Elections (or some representative from the state) would have to be there at the time of the vote -- then the potential exists for a violation of state law.

The Republican Party of Virginia has most of its bases covered on this one; that it is the governing authority over the process in Virginia and not state law. But it is not air-tight. The if associated with the actions of the delegation chair cited above is part of that. However, there is also the matter of state law versus state party rule/bylaw/resolution. The Rules of the Republican Party -- Rule 16(b) -- gives precedence to state party actions over state law. Yet, since the rules are not set in stone, and will not be until the convention in Cleveland, that cover is not officially there. Unlike Rule 16(a)(2), though, Rule 16(b) is not controversial and is likely to be carried over by the 2016 convention.

Though the complaint is long, this lawsuit essentially amounts to those two questions. The rest of it is just a series of distractions. State law simply is not the guiding force over delegate selection and allocation in Virginia, though there is the potential for prosecution on the grounds of violating the binding established in that law. Decided narrowly, a federal court could deem the state penalty unconstitutional. But the Republican Party of Virginia has measures in place to bind the delegates without that. That is an in-house, intra-party battle the courts have generally been unwilling to weigh in on, leaving it up to the party to settle. And the matter will be settled at the convention in Cleveland, starting with the Convention Committee on Rules.


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The Latest Installment of Stop Trump and the Rules

Throughout primary season Reince Priebus, the Republican National Committee chairman, repeated a familiar refrain. Whether asked about the possible nomination of Trump or the New York businessman's potential impact on the party platform, Priebus kept saying essentially the same thing: it is up to the delegates. The intent now as then is the same. It is a balance between a party apparatus wanting to assure those affiliated with it that has some control over a process but that does not want it to appear as if it has its thumb on the scale. That is a balancing act that is tough under normal conditions, but takes on a heightened level of difficulty when a party is divided and/or has a unique frontrunner/presumptive nominee.

In 2016 the Republican Party has both. It has an unconventional presumptive nominee who has not only faced resistance all along, but who has reactivated traditional dividing lines within the party and animated dormant or latent ones.¹ And both facets feed each other. Seemingly every word or deed from Donald Trump fuels the fire of opposition that has been longer in duration than that of any other cycle since the nearly evenly matched fight for the 1976 Republican nomination between Gerald Ford and Ronald Reagan.

The difference from 1976 to now is that Trump warded off all of his challengers on his way to a clear majority of bound delegates. Yet, pockets of resistance remain, small though they may be when compared to the full population of national convention delegates, and continue to search for outlets for their collective opposition to the presumptive Republican presidential nominee. The latest, spurred by an organizing minority faction of delegates, revisits the oft-discussed proposal to unbind the delegates through a change of the Rules of the Republican Party at the convention in Cleveland. An alternative change -- a conscience clause -- would allow delegates an out if they disagree with the presumptive nominee to whom they are bound.

Either proposal makes enough sense in theory (for that minority faction), but getting to that point -- a rules change -- is another endeavor altogether. There are a couple of layers to this. First, the path leads through the Convention Rules Committee. Some have argued that it would take just 57 votes to change the rules; to unbind the delegates or at the very least provide some of them with an opportunity to opt out of supporting Trump in a roll call vote on the floor of the convention.

But that is an oversimplification that obscures two important points:
1) It largely ignores the membership of the committee. The majority of the publicly known members of the Convention Rules Committee are members of the RNC themselves. That suggests at least something about the motivations of the committee. While they may not necessarily be Trump supporters, members of the RNC -- national committeemen and committeewomen and state party chairs -- are more likely than the elected at-large and congressional district delegates to defend the bulk of the rules that govern the Republican nomination process. To be clear, these automatic delegates on the Convention Rules Committee are not stooges of the Republican National Committee. The three of them from each state are elected at the state level and carry with them to national party functions the diversity of views represented across the country. That said, those delegates are more likely to fall in line with the balancing act described above; to carefully consider not only rules changes, but their implications as well.

All this is to say that those members of the Convention Rules Committee may not support Trump (or be bound to him on the roll call vote), but they have a common interest in A) (theoretically) defending the current rules² and B) avoiding the sort of chaos that detracts from the goal of the modern national convention. In other words, letting a rules fight get out of the Committee and onto the floor hurts the ability of the party to demonstrate some semblance of unity before a national audience.³

2) It is also worth noting that the bar is not actually as high as 57 votes -- a simple majority of the 112 member Convention Rules Committee -- to change the rules. That is the surest way of making a change, but there are other, perhaps more plausible goals for those seeking to halt a Trump nomination or at the very least make his getting to a formal nomination more difficult. If the Stop Trump delegates fail to get an unbinding rules change through Rules, the current rules do allow them the ability to send a minority report (amendment) to the floor for consideration by the convention. That maneuver, under the provisions of Rule 34, only requires the support of one quarter of the membership of the Convention Rules Committee (or 23 votes). This is a pretty limited power, however. Such an amendment (from a minority faction) can be tabled and very likely would be if the chair of the convention does not back the move.

Limited though that power could be, getting a minority report to the floor would be a step up from the   small scale backlash from Ron Paul supporters in Tampa in 2012. Again, the formal party within the convention would be motivated to avoid the 2012 ante being upped in 2016. As such, this is a bit of leverage for those who want Stop Trump. This was likely at least part of the calculus behind Priebus's call to state party leaders to assess the extent of anti-Trump sentiment among the 56 delegations. Getting a sense of that whip count both in the Rules Committee and on the floor is an important piece of information

The flashpoint for all of this -- this back and forth -- is the Convention Rules Committee meeting before the convention commences. A very likely middle ground is that the Rules Committee report to the full convention is likely to keep the bulk of the rules in place for consideration after the convention in 2017-18. That means that any move to unbind the delegates or provide for a conscience clause is likely to be dead on arrival or barring that doomed to fall short.

Yet, the one tweak that might make it out of committee that also might provide some level of protest against Trump is some variation of the Blackwell amendment tabled at the RNC winter meeting in Charleston earlier this year. The mechanics of this can be technical, but essentially what the amendment would do is clean up the language in Rule 16 (the rule binding delegates to candidates) and bring it in line with Rule 40 (the rule that lays out the process for placing candidates in nomination). As it stands now, only those votes (whether bound or from the small number of unbound delegates) for candidates placed in nomination are counted. Votes for, say, Rubio or Kasich -- candidates who control a majority of delegates in fewer than eight states -- would not be counted. Even if they were released, those delegates votes would only be recorded if they opted to vote for Trump (or Cruz if he hangs on to his delegates and has his name placed in nomination).⁴

Relaxing the provisions of Rule 16 to allow votes for other (now) non-qualifiers to be recorded and counted by the secretary of the convention is not a cure-all. In fact, as this latest, delegate-driven attempt to derail Trump's nomination is still in its infancy, the idea may seem quite unpalatable to those folks. However, while it is also a limited bargaining chip, it one that might give those in the Stop Trump faction one last outlet of opposition to Trump's nomination.

Of course, there is still about a month until the convention and this latest Stop Trump iteration may not have crescendoed yet. Given where the other attempts have ended up, history, it seems, does not appear to be on their side. And the balancing act is all up to the delegates.


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¹ This likely requires further explication. No, Trump has not necessarily directly charged the historical fault lines within the party. However, none of the factions in it have been able to coalesce around an effective plan to slow down or prevent a Trump nomination. The lack of agreement there has had the indirect effect of exacerbating the extant divisions.

² This is certainly true if there is any stalemate on the committee regarding the package of rules change recommendations Rules makes or individual changes the committee may discuss. In both cases, if the committee grinds to a halt, the likelihood of the status quo rules (or something very close to them) carrying over increases.

³ That may, admittedly, be difficult regardless in 2016.

⁴ That does not seem likely at this point.


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Revisiting Rule 40

This past Thursday night my Twitter feed began filling up with links to Alexandra Jaffe's story on the impact of Rule 40(b) on John Kasich's chances at the Republican nomination in a contested convention. The heart of story is a three paragraph section:

But top RNC strategists confirmed to reporters Thursday at the committee's Spring Meeting that the 40b requirement amounts to little more than a technciality. Having your name put into nomination affords candidates a number of advantages, like space in the convention hall and a nominating speech. But it's not required to ultimately win the nomination. 

Under the current rules, even those candidates who don't meet the 8-state threshold can continue to amass delegate votes. And if they're able to cobble together the support of a majority of delegates — the magic 1237 number — they win, even if it's spread across all 50 states. 

Typical interpretations of Rule 40 assumed Kasich's campaign would somehow have to rewrite the convention rules to get the governor into contention for the nomination. That's a tall order for the campaign, as they'd have to pack the committee finalizing the convention rules with supporters, and both Cruz and Trump already have an advantage in that effort. Still, Rule 40b isn't final — the Convention Rules Committee will meet the week before the convention to finalize changes to the rules.

FHQ does not really see the news in this, and I certainly don't get the bit about the "typical interpretations of Rule 40".¹

The truth of the matter is that the RNC has all along viewed the process as a resetting after every vote at the convention (should it progress beyond a first ballot vote). That would theoretically give candidates the chance to 1) qualify anew, 2) qualify for the first time or 3) even fail to qualify under the provisions of Rule 40(b) on subsequent ballots. Candidates like Kasich -- likely to fall short of the majority of delegates from at least eight states threshold on the first ballot -- have that opportunity because the number of unbound delegates increases as the number of ballots increase.²

Those free agent delegates, bound on the first or second or third ballot, can move away from the candidate to whom they were bound for a candidate such a delegate 1) preferred in going through the delegate selection process to become a national convention delegate (a sincere delegate), 2) supports for strategic reasons to prevent another candidate from claiming the nomination or 3) prefers because one candidate is viewed as more electable in the general election.

Combining those two factors -- a nomination reset and a growing number of unbound delegates over time -- means that Rule 40(b) was always less prohibitive than many have cast it. Unbound delegates can shift to candidates -- white knights, John Kasichs or otherwise -- and help them to form coalitions that not only qualify them under (a current or altered) Rule 40, but ideally surpass the 1237 threshold.

Kasich does not need rules changes. His campaign needs time at the convention; time measured in terms of the number of ballots cast. He will not qualify under the current Rule 40(b) and will not have 1237 delegates behind him.

Not on the first ballot anyway.

Rule 40(b) being in place or not does not change that reality. If Donald Trump gets to 1237, then there is little Kasich or anyone else can do on that first ballot. Should Trump fall short of that mark on the first ballot, then Ted Cruz seems well positioned to increase his number of delegates on a second vote and Kasich could potentially qualify (if enough unbound delegates come his way). Things moving down that path then puts a premium on the delegate selection process going on now. Those efforts affect how a second or third vote or beyond goes. When the bond disappears, those delegates are free to fit into the three categories described above (or others). The decision-making calculus changes for them.

But the bottom line here is Kasich's roadblock is not Rule 40(b). His roadblocks are the delegates he is not being allocated now and the selection process in which the Cruz campaign has jumped out to a lead. But if, as delegates become unbound at a hypothetical contested convention, Kasich amasses 1237 delegates, then yes, he, too, can become the Republican nominee.

That is a pretty steep climb though.


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Previous Post:
The Real Import of Rule 40 in 2016


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¹ And this idea that someone can have the support of 1237 delegates distributed 50 states and not qualify under Rule 40(b). That seems quite far-fetched. Mathematically, it is possible, but it is not at all probable.

² That RNC interpretation of Rule 40 is not shared by all. There are those who say the rule is silent to the matter of renomination (or second/second chance nominations) and others who take a harder line that the rule would limit the voting to just those who qualified under the provisions of Rule 40 before the first vote.

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Throwing Out Convention Votes?

The genre can be a bit of a burr under the saddle to FHQ at times, but Philip Bump at least had a nice and pretty thorough brokered contested convention explainer up at The Fix over the weekend.¹ I'll resist the urge to dig in too deeply at this point. However, there was one glaring inaccuracy in the write up that should be corrected.

It involves the small blurb about the impact of Rule 16 at the convention. Here is Bump's interpretation:

Rule 16: If delegates vote for someone besides the candidate to whom they are bound, those votes are thrown out.

This is wrong. These votes -- those cast against the delegate bind -- are absolutely not thrown out. If one reads the rule in full it ends up sounding that way by the end of the paragraph. Yet, the key is at the very beginning.

Let's look at the text of Rule 16(a)(2):

The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. Except as provided for by state law or state party rule, no presidential candidate shall have the power to remove a delegate.

[Emphasis added by FHQ]

Bump is picking up on that vote recognition part at the end. But not recognizing a delegate's vote is different than throwing out that vote. In fact, it is impossible to discard a vote that has already been "announce[d] and record[ed]" in "accordance with the delegate's obligation". The order of this is of the utmost importance here. It sets up a sequence: record the bind and ignore the violation of it.

That is at least part of the reason why the RNC amended the language of the rule as it existed coming out of Tampa at the spring RNC meeting in Los Angeles in April 2013 without really changing the intent of the rule itself. Here is the version of Rule 16(a)(2) that was adopted in Tampa and amended eight months later:

For any manner of binding or allocating delegates under these rules, if a delegate (i) casts a vote for a presidential candidate at the national convention inconsistent with the delegate’s obligation under state law or state party rule, (ii) nominates or demonstrates support under Rule No. 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or (iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the national convention for a particular presidential candidate, the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the secretary of the convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates.

[Emphasis added by FHQ]

This is the kitchen sink version of the same rule discussed above; the current rule. But notice that even under this rule, the vote is not thrown out, the delegate is. Then the vote is counted as if the delegate had cast it properly and in accordance with the instruction of the binding. Note also that the actions of the rule are flipped. In the early version of the rule the secretary of the convention awaits some violation before correctly recording the vote. The altered, current version completely removes the ability and motivation of a delegate to vote in violation of the binding by reversing the order. But the changed rule to eliminate the resignation of a delegate.

But the bottom line here is that in neither case would the vote have been thrown out. That would make an already messy situation -- a contested convention -- even messier.


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¹ It is not that FHQ does not like the convention discussion. It usually entails a headlong dive into the rules, and I am rarely averse to that. However, we have all been through this before. We are entering into brokered contested convention chatter season, but it ends up being a quadrennial exercise in putting the cart before the horse. There are delegate allocation rules that are going to matter a lot more in the near term than trying to calculate the conditional odds that they -- the rules -- are going produce an inconclusive outcome in June.

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