With the Wisconsin primary looming, the buzz around Republican National Convention rules has continued to increase in both frequency and volume. Randy Evans recently fielded questions on the Convention rules on MSNBC:
1. What are the chances of an open convention with no candidate getting to the 1237 bound delegates needed to win the nomination on the first ballot?
Generally speaking, I have consistently said since January that there is a one in three chance that Republicans end up with an open convention. Largely, this is the result of the way the process was changed, the number of candidates, and the mathematical challenges of getting to that number.
With only 10 winner-take-all states and 46 proportional states, the ability to get a majority of delegates in any one state or throughout the process is very challenging until the race gets down to just two candidates. With that said, I continue to believe it is much more likely that there will be a presumptive nominee, even if one candidate ends up just short of the 1237 delegates.
2. If Mr. Trump is the nominee, what are the chances of a third party challenge?
Very minimal. As a lawyer, especially one that commissioned a project that collected all the rules, requirements and deadlines for candidates to get on the ballot, I can tell you that the chances of a ground up start of an independent or new third party challenge are virtually zero. Too many deadlines are imminent and if a candidate started tomorrow, it would be virtually impossible to meet the deadlines that exist. The only real possibility would be if a candidate with substantial donor support hijacked an existing third party and used it as the vehicle for getting on the ballot. Otherwise, no candidate could get on enough ballots to have a realistic chance of winning the required 270 Electoral Votes.
3. Do you think Mr. Trump will get to the 1237?
On the GOP.org website, anyone can war game the possibilities. I have run 10 different scenarios. Of those 10, there are 2 possible scenarios where he could get to the 1237 number prior to the Convention. Basically, once the race dwindles to 2 real candidates, Mr. Trump could win in many proportional states 100% of the delegates with only 51% of the vote. The more likely scenarios put him between 75 and 100 delegates short. If that happens, I expect he would still win on the first ballot since there are enough unbound delegates from candidates who have dropped out or simply unbound under state party rules to close the gap. As the gap grows beyond 100, the challenge gets exponentially more difficult given how deep the conviction against him is among some institutional power brokers to his nomination. And, of course, there is always the chance of a change in political winds where he is not close. I don’t see that based on what’s happened so far, but in this political cycle, anything is possible.
4. Will the Party change the Rules to try to prevent a Trump nomination?
No. As a Member of the Rules Committee, there is no appetite to rig the Convention. On the other hand, there are a number of rules proposals that the RNC Rules Committee will take up at the RNC Spring meeting in April.
They range from unbinding delegates to changing the number of states required for nomination to permitting pledging of delegates. By then, we will have better picture of where things are, but I do not expect any significant rules changes. We may have to consider some modifications to address the logistics of an open Convention if that remains a realistic possibility, but we will just have to wait and see on that.
5. What is the worst case scenario for the Republicans?
Really, the worst case is if no candidate is close to the 1237 and organized groups decide to filibuster the process. We only have a Convention hall and hotel rooms for a week. If it runs longer than that, then real logistical issues start to develop including the real risk of losing a quorum as folks leave, hotel rooms run out, and the Convention hall has to be used for other purposes. Ending the week without a nominee would be a real challenge, but it is also an extremely remote possibility. Yet, in fairness, we try to prepare for every possibility – both real and remote. It does highlight the wisdom of moving the Convention from August to July to give us more time to put things back together after the Convention if necessary.
6. 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, they are released. (Again, some states include this option)
Typically, 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 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.
7. 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. That possibility was averted in the final minutes of the last Rules Committee meeting.
Currently, the nomination threshold only becomes relevant only if Governor Kasich can win either 2 or 4 more states. Hence, his strategy of targeting a handful of states is the best shot he has. If he gets to 3 or 5 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.
8. 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 frontrunner to 'broker' a deal supporting a nominee who was neither had the requisite 1,237, nor even had a majority of the delegates. Basically, permitting pledging delegates is the first step toward a ‘brokered’ convention.
9. Can new candidates enter the field after the first ballot?
Interesting question: 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.
10. 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 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.
The events of the next weeks will continue to generate substantial interest in the RNC’s rules and regulations surrounding the Convention.
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