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Darris Brock

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November 22, 2017

GOP Rule 40 Confusion


HeadShot03So far there has been a lot of confusion as to how the GOP rules for the potential contested convention work. Listening to Sean Hannity last night it seemed pretty clear that he thinks that Rule 40(b) requires that a candidate get a majority of the votes in eight of the state primaries that are taking place. I’ve heard some other notable pundit say earlier that only Trump had won a majority of eight states, referring to the primaries. I think it may have been Ed Rollins on Fox Business News. The key phrase that everyone needs to understand is majority of delegates, which is what Rollins was referring to at the time. It has been my impression that Rush Limbaugh has been laboring under the same notion. He said on March 9, 2016

Rule 40, as constituted at present, says that even in an open convention, no candidate can receive the nomination unless he or she has received a majority of delegates in eight states.  Can somebody tell me, does anybody other than Trump right now qualify under rule 40?  Has Cruz won a majority of delegates in eight states?  Well, we know that Rubio hasn’t, and we know that Kasich hasn’t, and we know none of the others have.

This line of thinking has been seen at GatewayPundit.com from a March 6 article titled, Sorry Mitt… RNC Rules State GOP Nominee Must Have Won 8 States to Be Considered Candidate at Convention. The article even cites the rule itself but I’m not sure the full potential interpretation of it is correct. Candidates do not need a majority of the vote only a majority of the delegates and that can be achieved without getting a majority of the vote. It seems counter-intuitive but it is true. In 2012 Ron Paul won only one state with a majority vote yet he won 3 states with a majority of the delegates. Rush and Rollins have it right. But is there more?

Open Convention, Open to Confusion

On Tuesday night following the Wisconsin vote, Hannity spoke to RNC chairman Reince Priebus about who the candidates might be in a contested convention. Sean was amazed when Priebus said it would be one of the three currently running. He asked if the nominee would be either Trump or Cruz. Priebus refused to rule out Kasich. Then Sean says, “Mathematically John Kasich can’t catch up to them.” He was confused as to how a distant third-place finisher would be able to jump over the top two candidates to which Priebus deferred to the Kasich camp for an answer. Priebus also spoke about how Paul Ryan would not be the nominee because he didn’t want it and would not have any ground game for a floor fight. What Priebus gave away that Hannity seems to have failed to grasp was that this would be a floor fight. It has little or nothing to do with the votes cast in the primaries. Here is the most salient passage from Rule 40:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business. (Read all the rules here)

Rule 16(a)(1) requires that delegates vote according to how the state vote was done. It is unclear to me at this reading at what point delegates can become unbound. We are told that it starts happening after the first round of voting if a majority is not reached. But it seems that state laws and party regulations have a lot to do with that so it is not clearly stated in the Convention rules how that happens to my knowledge.

What is also of interest is that there is no clear statement of when an “open convention” is to be declared or how a third party candidate without the majority of delegates from eight states can enter into that open convention. Should no candidate receive the 1,237 votes required in the first round of voting the party rules simply say,

If no candidate shall have received such majority, the chairman of the convention 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. Rule 40(e)

My understanding of that is that the roll is simply called again and again until someone [already nominated] wins. It does not leave open a place for additional names to be added to the nomination process nor clearly state that the nomination process must begin again. Clearly, Chairman Priebus and others recognize that there is some mechanism for doing so but based solely upon these rules it is not obvious how that would be achieved. The words “open”, “contested”, or “brokered” convention never appear in the rules.

We are told that at least some delegates can become unbound after the first round of voting if there is not a majority winner. We are told that new names can be put into nomination after the first round. If so, what Rule 40(b) means to me is that in a contested floor fight John Kasich could convince a majority of delegates from Ohio and seven other states to present his name as a candidate for nomination. Yes, you read that right. In fact, we are told that the floor is actually totally wide open to anyone who wants to bargain for it. Obviously, as Priebus said, they have to have a ground game for a floor fight so realistically not too many people are viable in that regard. But this would be how the GOP establishment would defeat both Trump and Cruz for Kasich or someone else of their choosing. It is why John Kasich said of a contested convention, “It would be so much fun.” To him this is all just a game. Cut your deals, make your alliances, don’t drop out, get to be the GOP nominee!

On Hannity tonight both Mercedes Schlapp and A. J. Delgado again gave some hints that Sean didn’t pick up on. Sean was concerned about rewriting the rules by the GOP “establishment” before the convention in order to eliminate the eight state requirement. Schlapp explained that the party rules can be rewritten up until the time of the convention but the delegates that will do that will be dominated by the Trump and Cruz camps. Obviously they are not going to write rules that do not favor their candidates.  What went unstated was that it is not necessary to get rid of Rule 40(b) in order to allow Kasich or anyone else to be presented for consideration as the nominee if (1) delegates become unbound after the first vote (2) the nomination process is started again and (3) all someone like Kasich has to do is convince a majority of delegates in eight states to support him. It did not seem to me that Sean was satisfied or even clear on this matter by the end of the segment.

My assessment of the situation is more kind to Cruz than is that of others, such as Roger Stone and Steve Malzberg who think he is a globalist and a Bush lackey. I’ve said before that Cruz needs to drop out in order to achieve the greater goal of changing the Republican party status quo. If he stays in and forces a contested convention not only will it hurt a lot of feelings along the way and at the convention, it may very well undermine the goal that both he and Trump want to achieve: change. Both men are feared by the party elite: one for being and enthusiastic reformer and the other for being a non-compromising ideologue. If Kasich or another person ends up with the nomination it will be business as usual for the GOPe. As the Facebook meme said, “Contested Convention: Code words for “We can’t let the the masses elect someone we can’t control.”

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