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The rules of a game often determine its winner. With the approach of the Republican Party’s first presidential nominati...
The rules of a game often determine its winner. With the approach of the Republican Party’s first presidential nomination caucuses and primaries, party rules are already playing a key role — and just may lead Republicans on a wild nomination ride that won’t end until the last day of its convention in Tampa.
The Republican Party is an association rather than a government entity, making its national rules the equivalent of a constitution when it comes to its nomination process. To be sure, states may want to change the dates of a primary, state parties may change the manner of their nomination contests and members of Congress may pontificate about the process. But for the final word, it’s the Rules of the Republican Party.
Here’s the party’s problem: Those party rules directly conflict with the conventional interpretation of the meaning of upcoming primaries and caucuses, and next summer may well lead to challenges to seating delegates. According to explicit language in their rules, Republicans can’t bind delegates from a state to vote only for one candidate by a winner-take-all rule, for example, nor are they supposed to allow non-Republicans to vote in their contests.
Given the rebellious spirit within the Republican Party embodied by a tea party movement that demands respect for the Constitution, party leaders can’t just wish away departures from the rules. Indeed, the national convention in Tampa just might take us back to a different political era: one in which delegates act on their power to choose the nominee that they think best represents the Republican Party — even if that is someone other than the apparent winner through state primaries and caucuses.
Breaking the Rules
At the 2008 convention, delegates gave the Republican National Committee limited power to change aspects of the nomination rules between conventions. To much fanfare, the RNC last year voted to move the first contests later in the year, with only Iowa, New Hampshire, South Carolina and Nevada allowed to have caucuses and primaries in February. All states scheduling contests before April 1 were required to allocate convention delegates by proportional representation instead of the winner-take-all rule.
These rules were designed to avoid an early victory for a candidate who might secure the nomination by stringing together a series of low-plurality wins. That’s what happened in 2008, when John McCain in early February became the de facto nominee despite failing to win a majority of the vote in nearly any of the party’s contests at the time. His early knockout victory contributed directly to reduced participation and media attention in remaining Republican primaries, in sharp contrast to the spirited Democratic contest that continued into June.
But the new rules apparently were made to be broken. Last month, Florida Republicans scheduled their primary for Jan. 31, before party rules allowed. Arizona, Michigan, New Hampshire and South Carolina then advanced the date of their contests, and Iowa moved its nonbinding caucuses to Jan. 3. One potential casualty of that rule-breaking was the potential candidacy of New Jersey Gov. Chris Christie, as the newly compressed schedule left him little time to build the kind of field operations necessary to compete in states holding early contests.
While states breaking party rules are sure to monopolize presidential candidate time and attention, their party leaders may come to regret their decision. If the convention has real power in choosing presidential and vice-presidential nominees, five states — Arizona, Florida, Michigan, New Hampshire and South Carolina — will have only half their allotted delegates because the RNC already has acted on Rule 16, allowing such a penalty. RNC chairman Reince Priebus told ABC News: “The penalty is there, the penalty is going to stick, and that’s all there is to it.”
Those words may sound stern, but one root of a potential convention rebellion lies in another decision by the RNC. Priebus singled out Florida for criticism in instigating other states to advance their contests, but the RNC shockingly has allowed Florida to break a second rule without any penalty at all. In direct violation of its mandate of proportional representation for early contests, Florida was given a green light to award all of it its delegates to the statewide winner, no matter how low the percentage of the vote.
Other states will have good grounds to challenge Florida’s remaining delegates. Use of the “winner-take-all” unit rule magnifies the impact of finishing first in Florida. In contests held by proportional voting, almost every vote will count toward candidates earning delegates. That means winning 5 percent more of the vote will earn about 5 percent more delegates.
In Florida, however, gaining 5 percent more of the vote through heavy campaign spending could be the difference between winning all of Florida’s delegates or none, no matter how low that winning percentage. In a similarly fractured field in 1996, Pat Buchanan won the New Hampshire primary with just 27 percent — the kind of numbers we may well see in Florida, as evidenced by the most recent Quinnipiac poll showing Herman Cain leading the field with 25 percent. Such distorted outcomes demonstrate why winner-take-all is a poor means to reflect a party’s “big tent” of diverse opinions and interests, particularly with the added element of big money able to swing outcomes with a small change in the vote.
That insight about winner-take-all is nothing new. According to Rule 38 in the Rules of the Republican Party, a state cannot enforce voting by the winner-take-all, unit rule: “No delegate or alternate delegate shall be bound by any attempt of any state or congressional district to impose the unit rule.” The Republican Party has in fact barred enforcing the unit rule at national conventions since 1880, when opponents of front-runner Ulysses Grant blocked states from requiring their delegates to all vote for one candidate.
Republicans in recent years have allowed state parties to adopt winner-take-all rules in contrast to Democratic Party practices requiring states to allocate delegates proportionally. But by the plain language of its party rules, no Republican convention delegate is in fact bound by winner-take-all. In other words, winner-take-all primaries essentially are advisory-only: Delegates can make up their own mind, and may well have good grounds to do so.
Grounds for a First Ballot Rebellion
The RNC ruling on Florida underscores the party’s problem. As amended in 2010, Rule 15 (b) (2) prohibits in no uncertain terms early winner-take-all contests: “Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held shall provide for the allocation of delegates on a proportional basis.”
Florida’s delegates may well be challenged, triggering a wider review of use of winner-take-all rules, given Rule 38. Consider, then, Republican convention delegates elected in a winner-take-all state. If determining that the winner was strongly opposed by most voters in that state — as easily can happen with plurality voting — those delegates may decide to support a different candidate.
These delegates’ decision might be all the easier if it’s clear that key nomination contests were affected by non-Republicans voting in open primary states. Although centrist pundits often applaud open primaries for giving independent voters greater power to influence party nominations, that goal is in direct conflict with party supporters who seek a truly representative nominee for their party. It’s their party’s nomination contest, after all, and many Republican activists want to win the White House with a candidate who will be true to party principles.
Once again, the rules clearly discourage non-Republicans from participating in nomination contests. Rule 15 states: “Only persons eligible to vote who are deemed as a matter of public record to be Republicans pursuant to state law or, if voters are not enrolled by party, by Republican Party rules of a state, shall participate in any primary election held for the purpose of electing delegates.”
Yet in a number of Republican contests — including New Hampshire, which allows undeclared voters, including those registering on Election Day, to participate — candidates who aren’t registered as Republicans can help determine the party’s nominee. Some states even allow registered Democrats to vote in its contest, a real possibility in a year when Democrats apparently won’t have a contested nomination race.
To anticipate potential convention challenges on this basis, keep an eye on which candidate does better in closed primary states that more accurately reflect what registered Republican voters want — if it’s not the candidate who has become the front-runner due to plurality vote wins in open primary states — watch out for fireworks in Tampa.
A Convention Potentially at Odds with its Front-runner
The nature of the Republican contest makes our analysis more than just a theoretical debate. Former Massachusetts Gov. Mitt Romney has the inside track, but he remains far short of 50 percent Republican support — especially among grassroots conservatives who are likely to be sticklers for upholding party rules.
Take South Carolina, where an Insider Advantage poll last month found Romney to be second with 16 percent. Among voters under 45, Romney earned only 7 percent, and he trailed Herman Cain by a landslide of 39 percent to 19 percent among voters in the tea party sweet spot age of 45 to 64. A CBS poll found that only 18 percent of Republicans would support Romney enthusiastically. More than 40 percent had reservations.
While Romney is far ahead in New Hampshire, many Republicans will see that contest as tainted. New England Republicanism represents a declining stock in the national party, and non-Republican voters can swing the vote. Gaining the nomination based on a low-plurality win in Florida and narrow victories in New Hampshire and South Carolina grounded in votes from non-Republicans may not be enough to persuade delegates to ignore party rules.
Looking toward Tampa
To be clear, we believe as many voters as possible should be involved in choosing our elected representatives. For that reason, we support expanded voter choice in general elections, accompanied by fair voting rules like instant runoff voting and proportional voting. But we also believe that rules should matter. If party leaders don’t like their rules, they should change them — not ignore them.
More broadly, we also see value in more people getting active in parties and other political associations and are intrigued by new forms of associations allowed by the Internet and social media. Coming together to define common interests and communicate those to other Americans is the very definition of the political process. Having more meaningful party conventions could promote the value of such involvement.
As one step the parties could take regardless of how Republicans pick a nominee next year, we like Washington Post reporter Michael Leahy’s suggestion that the major parties change their recent practice of giving nominees unchecked power in selecting a vice president. The major parties have had a series of controversial vice-presidential nominees – think of Sarah Palin in 2008, Joe Lieberman in 2000, Dan Quayle in 1988 and Thomas Eagleton in 1972. Given that a vice president may well become both president and a party’s de facto standard-bearer, the electoral calculations of a nominee’s campaign team should not be the only ones that matter.
Furthermore, if parties gave convention delegates more real decision-making authority at least in selecting vice-presidents, states would think twice about breaking rules as to when to hold contests and how to allocate delegates — a state losing half its delegates would always represent a real penalty, not just a theoretical one.
What happens in Tampa might come down to Republican Party leaders because there is no obvious process to appeal decisions by the party’s Standing Committee on Rules. But we anticipate and welcome more attention to party rules and what it means to be active in a political party in the 21st century. And Republicans may not be able to prevent fireworks on the convention floor, where ultimately the delegates are in control.
Stay tuned. What promises to be a momentous 2012 presidential election is just getting started.
Rob Richie is executive director of FairVote — The Center for Voting and Democracy, a nonpartisan organization based in Takoma Park, Md. Elise Helgesen is a Virginia attorney and a democracy fellow at FairVote.