Rules Committee Meets for Thoughtful Debate and Consideration of Rules

The Convention Rules Committee is meeting in anticipation of the Republican National Convention next week.  The 112-member Rules Committee is composed of one male and one female delegate from each state and territory.

This important Committee is led by the following RNLA members, among many other excellent Republican leaders:

• David Asp - MN
• Vincent DeVito - NY
• Harmeet Dhillion - CA
• Randy Evans - GA
• Peter Feaman - FL
• Richard Forsten - DE
• Bob Kabel - DC
• Anne Lewis - GA
• William Palatucci - NJ
• John Ryder - TN
• J.L. Spray - NE
• Mike Stuart - WV
• Lawrence Tabas - PA
• Harvey Tettlebaum - MO

We thank these RNLA members for their able leadership and dedication to ensuring the future of the Republican Party.

In contrast to the media hysteria regarding the Rules Committee in the preceding months, the debate has been conducted by the Committee members thoughtfully and respectfully.  In all the debates, the Committee members emphasized openness, transparency, the rule of law, and how to make the Republican Party and RNC responsive to the people.  In most cases, after careful consideration and debate, the members have decided not to make major changes to the rules.

RNLA Advocates Opposition to Mandatory Voter Registration and Mandatory Voting in GOP Platform

The Platform Committee began meeting today, in preparation for next week's Republican National Convention.  

RNLA leadership wrote to the leadership of the Platform Committee last month, requesting that the Committee add language to the platform that opposes mandatory voter registration and mandatory voting:

The RNLA respectfully requests that the Platform Committee add the following language to the 2016 Republican Party platform:

As freedom is essential to the American system of government, neither automatic voter registration nor mandatory voting should be enacted in any state or by the federal government. Citizens should be free to decide whether to participate in the political system through voting or registering to vote.

Automatic voter registration, more properly called mandatory voter registration, is a coercive, intrusive system that does not accomplish its goal of increased voter turnout but does create problems, such as inaccurate voter rolls. Mandatory registration opens the door for fraud by registering people who have no intention of ever voting in the jurisdiction, are transient, or are otherwise added to the rolls when they should not be. Mandatorily registering a citizen when he or she has decided not to register violates a citizen’s basic rights. 

We hope that the Platform Committee, in addition to considering the other important issues that will define the Republican Party for the next four years, will choose to add this important plank to the 2016 Republican Platform. 

An Quick Overview on Convention Rules; Delegates are Legitimately Bound

RNLA Member James Bopp, Jr., wrote a nice informative blog post over at The Hill yesterday discussing convention delegates and the current RNC rules. Now, most familiar with the situation know that the idea of a revolt on the floor has been an impossibility for some time. Yet, the mainstream media and liberals continue to try and resuscitate the movement like voters from beyond the grave in California.

James Bopp points out with a high level of specificity the reality of the situation. GOP delegates are legitimately bound, deal with it, as the alternative would likely result in the destruction of the Republican Party itself.

The advocates of this view say they want to “Free the Delegates” or affirm their right of “conscience” and they cite GOP Convention history, a Supreme Court decision, and current RNC Rules to support their position. They are right about history, but wrong about Supreme Court precedent and current RNC Rules. Absent the adoption of a contrary RNC Rule, state party rules and state laws which bind delegates are legally valid and respect for the Rule of Law requires that delegates vote in accordance with these requirements.

Throughout the blog post, Bopp goes on to debunk David French of National Review’s three main points that he contends could potentially free up delegates at the Convention. French’s three main points consisted of the following.

“1. State legislatures cannot violate the First Amendment rights of Republican delegates.”
. . . [T]he First Amendment right here is not an individual right of each delegate but a right of political association that requires the association to act. So Mr. French overstates his point by a slight of hand, while correctly arguing that the First Amendment protects political party rules against contrary state laws, he erroneously characterizes it as “the First Amendment rights of Republican delegates.” Delegates have no individual First Amendment right to vote as they please contrary to a state law. . . .

“2. Traditional and current Republican rules and practices allow delegates to vote their conscience.”
Of course, it is true that, through most of its history, delegates were not bound by any state party rule or state law to vote for any particular candidate at the GOP national convention. Historically and now, delegates are selected by state party conventions or caucuses, and only rarely by election in a primary by the voters – this is why our primaries are called “Presidential preference primaries.” 
But as primaries have become more popular in order to gauge grassroots Republican support for a particular candidate, state laws and state party rules that bind delegates to the results of these primaries have also become more popular. So the critical issue is what do the RNC Rules say about this. . . .

“3. If the Republican Party wishes to bind delegates to Trump, it will have to change the rules to do so.”
This is just not so. As explained, state party rules and state laws are currently valid and enforceable, since there is no RNC Rule that prohibits them.  So the shoe is on the other foot. A RNC Rule prohibiting binding must be adopted by the National Convention, to be effective at the 2016 Convention, to relieve delegates of their state binding. Certainly those advocating a “conscience amendment” implicitly understand this and they are right. . . .

The entire post is worth reading for those somewhat familiar with the rules and certainly to those with little knowledge of the process. 

Bopp also penned an article discussing why any changes to the rules of the Convention should not take effect until the Convention adopting the change adjourns.  Attempts to change the convention rules themselves could have a devastating effect on the party itself.

Facts About the RNC Rules Committee

Much is being made about the RNC Rules Committee meeting being held today.  RNLA will be live tweeting from the Rules Committee hearing.  However, it is important to note what the RNC Rules Committee is and is not. 

The RNC’s Standing Committee on Rules exists to administer the rules passed by the previous national convention delegates and to help govern the party between Conventions.  

The RNC’s Rules Committee does NOT write the convention rules.  To clarify how those are written:

1. The rules for the 2016 Convention will be decided and enacted by the delegates to the 2016 Convention.

2. Two delegates, elected from their state delegations, will serve on a Convention Rules Committee that will write the rules for the 2016 convention.

3. Delegates elected by the grassroots are the only people who will write the rules that will govern the 2016 Convention. 

For more on this, follow the RNLA on twitter today starting at 2 p.m. Eastern at: https://twitter.com/TheRepLawyer

RNLA Chair Randy Evan's Expertise on the Republican Convention and Delegate Processes

As the campaign for the Republican presidential nomination continues to be competitive, Randy Evans, RNLA’s Chair and a member of the Republican National Committee, has been sharing his expertise on the delegate selection process and the Republican National Convention.  Here are some of his recent statements:

On March 18, Randy spoke to the Atlanta Journal Constitution and provided "Five answers about an open Republican convention in Cleveland."  The key point is the Party will not try to change the rules to work against a candidate:

Q: Will the party change the rules to try to prevent a Trump nomination?

A: No. As a member of the Rules Committee, I can say 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.

While the rules committee process will be fair and no one is out to favor one candidate or another, there are still issues of legitimate debate. For example, Randy explained an issue  regarding the withdrawn candidates:

Another issue the RNC is likely to take up at its April meeting is the status of delegates belonging to candidates who have suspended their campaigns. “There’s a genuine debate on the rules committee, as to how a suspended candidacy or a terminated or withdrawn candidacy operates to release their delegates. 

“I think each candidate who earned those delegates should have an important say,” Evans said. 

More recently in the Augusta Chronicle, Randy summed up that this is still an election:

“They know at the end of the day it is just about counting noses. We’ll have a vote, and at the end of the day, you win the vote or lose the vote,” said Randy Evans, the Republican committeeman from Georgia and a member of the national convention’s Rules Committee.

We wish to thank Randy and the other hard working men and women of the Republican National Committee for striving for a fair process.  Randy is available for interviews; contact press@republicanlawyer.net for more information.

Questions About the Convention? RNLA Chairman Randy Evans Responds

Randy Evans is Chairman of the RNLA and is also a Member of the Rules Committee and the Debate Committee of the Republican National Committee (RNC).  He served as outside Counsel to the Speakers of the 104th-109th Congresses of the United States (Gingrich and Hastert).  He was a Senior Advisor the Newt 2012 Presidential Campaign. Evans will be attending the RNLA Reception for RNLA Sponsors, RNLA Members and RNC Meeting Attendees in Florida on April 20, 2016, at the Rivals Waterfront Sports Bar.

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.