Bound or Unbound? Understanding the Rules

There has been quite a commotion recently about the question of whether Delegates to the Republican National Convention (or Democratic Convention for that mater) are bound to vote for a specific candidate, and what law, if any, binds them.  A recent post here at TBE even discusses a lawsuit filed by one of our 10th District Delegates to the Republican Convention challenging state laws pertaining to the binding of delegates.

The subject of this post, without taking a specific side in the argument, is to lay out the legal question of the delegate’s status.  Namely, are delegates to the Republican and Democratic National Conventions bound to vote for any candidate, and, if so, who has the controlling legal authority to do so?

The answer to the first question (are the delegates bound in any way) is, “yes and no.”  The answer to the second question (who has the authority to bind them) is, “only the Republican party, and the Delegates themselves.”

The Republican Party and the Democrat Party are private, political organizations that enjoy the freedom of association provided for in the 1st Amendment to the Constitution.  State and Federal laws have very little say in how these organizations conduct their internal affairs, especially the choices of what they stand for and the candidates they nominate to represent them.

The recent lawsuit brought by Mr. Correll takes aim at 24.2-545 – Section D of the Code of Virginia, which states that, “If the party has determined to use another method for selecting delegates and alternates, those delegates and alternates shall be bound to vote on the first ballot at the national convention for the candidate receiving the most votes in the primary unless that candidate releases those delegates and alternates from such vote.”

I do not agree with the lawsuit that has been filed by Mr. Correll, not because I believe his position is incorrect, but because this is already a matter of settled law.

First, I need to point out that this state law already goes against RPV’s State Party Plan, which states in Article VIII, Section L, “Procedures concerning Conventions at which delegates and alternates to National Conventions are elected shall comply with the applicable Rules of the National Republican Party.”

So the RPV Party Plan clearly states that the National Party rules are to be adhered to, and the 2016 RNC Call for a Convention (Rule 16, c-2),  states, “Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to March 15 in the year in which the national convention is held shall provide for the allocation of delegates on a proportional basis.”

Since the Virginia Primary took place on March 1st, RNC party rules call for our delegates to be bound proportionally based on the popular vote, not the “winner-take-all” result called for in the VA Code.  So which rule takes precedent?  The Party rule.  The Supreme Court has ruled in more than one case on the supremacy of the national parties over the states when it comes to the selection of national delegates and who they vote for.

The main case in this matter goes back to Cousins v. Wigoda (1975).  In this case, the Supreme Court ruled on the issue of competing slates of Illinois Delegates to the 1972 Democratic National Convention.  One set of delegates was elected via a primary election (the Cousins Delegation), while a second slate of delegates was elected at private party caucuses (the Wigoda Delegation). Both slates of delegates arrived at the Democratic National Convention and, after a credentials challenge, the Wigoda Delegation was seated instead of the slate chosen via a state-run primary.

The Supreme Court upheld the decision to seat the Wigoda Delegation (which was selected by the party) and declared that state law cannot intrude on the rights of national parties to govern their own affairs.

“The States themselves have no constitutionally mandated role in the great task of the selection of the Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to the National Political Party Conventions were left to state law “each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result.” [internal citation omitted] Such a regime could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates — a process which usually involves coalitions cutting across state lines.  The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.”

So in this case the Supreme Court held that the states have no role to play in the selection of delegates.  Later it doubled-down on this line of reasoning when it also ruled that the states have no role to play in who those delegates are required to vote for.  In Democratic Party of the United States v. Wisconsin ex rel. Le Follette (1981), the Supreme Court ruled against a Wisconsin law that sought to bind the Delegates to the Democratic National Convention to vote for the winner of its open primary.

Rule 2A of the Democratic Selection Rules for the 1980 National Convention stated, “Participation in the delegate selection process in primaries or caucuses shall be restricted to Democratic voters only who publicly declare their party preference and have that preference publicly recorded.”  However, the State of Wisconsin attempted to force the Democratic National Convention to seat delegates that had been chosen in an open Primary, and require that their votes be bound by the results of that primary.  Relying on the previous decision in Cousins, the court ruled in favor of the Democratic Party.

“a State, or a court, may not constitutionally substitute its own judgment for that of the Party. A political party’s choice among the various ways of determining the makeup of a State’s delegation to the party’s national convention is protected by the Constitution.  And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.”

So State party rules take precedent over state laws and National party rules take precedent over State party rules.  So which rules are the final binding rules governing the Delegates and how they vote?  Those would be the Rules of the Republican Party.  Who writes and passes the Rules of the Party?  The Delegates themselves.

The rules we are operating under right now are the 2012 Rules of the Republican Party.  These rules govern the makeup of the National Committee, the convening of the next national convention, and the proceedings of the national convention.  It is important to note that these rules are ONLY in effect until the gavel falls on the opening of the 2016 National Convention.  Once the convention in Cleveland is called to order, it is up to the Delegates themselves to keep these rules or amend them as they see fit.

This is the way it has always been.  The party makes its own rules, and the National Delegates decide on those rules every four years.

As it stands, the only rule that binds delegates to a candidate based on the results of a primary is Rule 16 of the Rules of the Republican Party.  Rule 16, section (a), paragraph 1 states:

Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters.

This rule can be amended, removed, OR UPHELD, by the Delegates themselves when they arrive in Cleveland this July.  One week before the convention, members of the Rules Committee, appointed by the current 2016 National Delegates, will meet to discuss any changes to be made to the rules.  Their recommendations, along with any proposed amendments, will be brought before the full convention for debate and a vote.  Once that vote is taken, the newly adopted Rules of the Republican Party will govern how the rest of the Convention is held, and the Delegates will be bound, or unbound, based on those new rules.

The simple fact of the matter is that only the Delegates can decide to bind or unbind themselves, and that is the way it has been for over 150 years.  It would be an extraordinary thing for the delegates to take the steps many are calling for in amending the rules to unbind the delegates, and I think that is where the real issue lies, but legal precedent is clear on this issue. The parties are the only ones that make that decision, and the National Convention Delegates are the ones that make that decision for the parties.

I have tried to stay focused on the legal issues and the controlling rules of binding delegates without taking a side on what should be done in Cleveland.  My next post on the topic will address the question of, “just because the Delegates CAN unbind themselves, does it mean they really SHOULD??”