The GOP rules for a potential cage match in Cleveland, Part II

Last week, many of you showed interest in a post authored by Randy Evans, the Atlanta attorney and member of the Republican National Committee, about some of the more arcane forces that will govern the march to a presidential nominating convention in Cleveland.

Evans, who is a member of the RNC Rules Committee, has sent us a sequel, which we offer you here. Enjoy:

In 10 days, on April 5, only one GOP state will decide its delegates for the 2016 GOP national convention. Both the Donald Trump campaign and the TedCruz/anybody-but-Trump campaigns are gearing up for the Wisconsin primary be a make-or-break date with destiny.  The polls show the race has tightened up nationally, and both Trump and Cruz are within the margin of error in Wisconsin.

If Trump wins Wisconsin, the process is largely over, mathematically. Delegate math is unforgiving.  If Cruz wins, then the Trump momentum will have been stopped and Cruz campaign and the anti-Trump establishment live to fight another day, having blunted Trump's drive to the nomination -- but still well behind.  But make no mistake, with only one state at play, there will only be a winner and a loser.

More Questions for the GOP

Against that backdrop, only more questions circle Washington insiders, keeping parliamentarians and lawyers busy.  Here are the latest:

How do delegates bound to former candidates get released ? Some say upon suspension of a campaign, they are released.  (In fact some state statutes or state party rules so state.) Some say that only upon the "termination" of a campaign, they are released.  So far, no candidate with delegates has actually "terminated" their campaign.  Some say that, only if a candidate actually releases the delegates, are they released.  (Again, some states include this option.)

In some places, it is a matter of state of law, although it remains an unsettled issue for the vast majority of jurisdictions.  As you might imagine, with Trump projected to be just short, this is a really big deal -- since he would need at least some unbound or 'released' delegates to reach the requisite 1,237.  Similarly, Senator Cruz of Texas needs those delegates to stay unbound and vote for him or their original candidate to keep Trump from going over the top.  It remains a looming issue, with many insiders hoping that it never actually become a necessary issue to decide.

Does the threshold of eight states get reduced? At the last RNC Rules Committee meeting, the Rules Committee almost adopted a rule that would have eliminated the threshold altogether and left open the possibility that any candidate -- nominated at the convention or not -- could become the GOP nominee for president.  That possibility was averted in the final minutes of the meeting.

Currently, the nomination threshold only becomes relevant only if Governor Kasich can win either two or four more states.  Hence, his strategy of targeting a handful of states is the best shot he has.  If he gets to three or five and the threshold is reduced accordingly, then he would be the third candidate in nomination on the first ballot, and the implications are huge.  A three-candidate first ballot is much more likely to produce an open convention than a two-person race which, depending on how "released" or "not released" delegates vote, virtually guarantees a nominee on the first ballot.

Can a candidate "pledge" delegates to another candidate? Currently, the rules are silent on the issue, and state rules suggest delegates are bound ONLY to the candidate who earned them.  However, candidates can release and urge their bound delegates to support another candidate, although such requests are only that -- requests.  On the other hand, if the rules are clarified or amended to permit pledging of bound delegates, then then dynamics again change.  Such a change would permit a coalition of all or most of the candidates who are not the front-runner to "broker" a deal supporting a nominee who neither has the requisite 1,237, nor even has a majority of the delegates.  Basically, to permit the pledging of delegates is the first step toward a brokered convention.

Can new candidates enter the field after the first ballot? Interesting question:  Rule 40(e) says, "If no candidate shall have received such majority, the chairman shall direct the roll of the states be called again and shall repeat the calling of the roll until a candidate shall have received a majority of the votes entitled to be cast in the convention."  There does not appear to be any provision for re-opening nominations or making new nominations from the floor.  So, absent a rules change, how one of the "establishment" candidates gets to be a candidate remains unclear.  Remember, however, the Convention can change its own rules.  Currently, that does not appear likely.

If delegates cast ballots for candidates not in nomination (i.e. they did not have the support of a majority of eight states to be nominated), does that lower the number needed to win? In other words, if Marco Rubio's delegates vote for Rubio, but he is not in nomination, does that lower the total votes cast for purposes of deciding what a majority is?   The applicable rule is Rule 40(d) which says:  "When at the close of a roll call, any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule."

The operative question is the phrase “the votes entitled to be cast in the convention.”  Traditionally, this has been the majority of the total votes eligible to be cast, not those actually cast.  So, regardless of how counted, the majority for purposes of determining the nominee will remain 1,237 absent a change in the Rules.

At the last Rules Committee meeting, one change passed provides that votes for candidates not in nomination would be recorded by the Convention Secretary, but not included in the tally to determine the nominee.  The inclusion of recorded votes in the minutes, but not tallied votes for electing a nominee would not change the need to get to 1,237.

Not surprising, some now question why such recorded but not tallied votes should not impact, “the votes entitled to be cast in the convention.”  Absent a change in the rules, however, the 1,237 threshold will remain as the threshold for any candidate to become the nominee.