by Morton Blackwell

March 8, 2016

No one who has not participated in the rules-making process for the national Republican Party is likely to understand all provisions of the current rules, much less how those rules, whether as they now read or how they might be changed, would affect what happens at the 2016 Republican National Convention in Cleveland.

Changed or not, The Rules of the Republican Party will have huge effects not expected or predicted by any of the national pundits who make their livings now commenting on the Republican presidential nomination contest.

Some surprising aspects of these effects are already becoming better known. A greater number of people have recently learned that, as the national rules now stand, no delegate votes cast for any presidential candidate will be counted in the tally of first ballot votes unless that candidate had earlier demonstrated his support from a majority of the delegations from at least eight states or territories.

That’s exactly what happened at the 2012 Republican National Convention in Tampa.

No votes for any candidate other than Mitt Romney were counted in the final tally of the votes on the first and only ballot in Tampa. That caused a great uproar and many hard feelings. Large numbers of Delegates went home furious. They had come to Tampa to cast their votes for other candidates, but their votes weren’t even counted!

The Romney campaign used the power of the incoming presidential nominee in the national convention’s Rules Committee to impose a great many rules changes, including a change that had the intended effect of eliminating the counting of votes for anyone but Romney.

Romney was the only candidate who could demonstrate the support of a majority of delegates in at least eight states, and a rules change he pushed through prohibited even the counting of delegate votes for any other candidate.

Of course, Romney already had a big majority of the convention’s delegates. He had the nomination sewed up, but he used his power, as establishment Republicans often do, in a ruthless power grab to marginalize non-establishment Republicans.

As the Virginia Republican National Committeeman and Virginia’s member of the Republican National Committee’s Standing Committee on Rules, I attempted at the RNC’s January 2016 meeting in Charleston, South Carolina, to correct this outrageous, unfair, and counterproductive 2012 Romney power grab. I came close there to removing the prohibition on counting the votes of any credentialed Delegates who cast their votes according to their state party rules and state law. More about that later.

As the national rules now stand, no delegate votes will be counted in Cleveland that are cast for any 2016 candidate who can’t show support from the majority of the delegations from at least eight states or territories. If one candidate arrives at the Cleveland convention with a majority (1,237) of all the Delegates at the convention, a great many legitimate Delegates whose votes won’t be counted will be furious. But that candidate would already have a majority, so the eight-state threshold wouldn’t affect who wins the nomination.

On the other hand, let’s examine what would happen if no candidate receives 1,237 delegate votes on the first ballot for the Republican presidential nomination.

First, a sizeable number of delegate votes cast will not be counted in the final tally of the first ballot because they will be cast for candidates who did not demonstrate, before the first ballot, that they had majorities in at least eight state delegations.

Second, the national rules provide that no one will get the presidential nomination on any ballot until someone receives at least 1,237 tallied delegate votes.

Third (and this will come as a surprise to most people), although delegate votes from states that hold primaries will be allocated by those state primaries to specific candidates on the first ballot, that does not mean that on subsequent ballots all delegates are free to vote for whomever they choose and to have those votes counted in a final tally on any ballot.

In fact, as it now stands, the same Romney-created rule, Rule 40(b), that prevents votes from being tallied for candidates who could not prove majority support from at least eight state delegations also provides that candidates must prove that they meet the eight-state threshold “not less 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.” In other words, when the first ballot begins, no additional candidates can qualify to receive votes that will be counted.

Only candidates who meet the eight-state threshold required to receive votes that count on the first ballot can receive votes that count on subsequent ballots.

Under the current rules, therefore, it’s nonsense to talk about any candidate coming from behind to win the nomination unless that candidate meets the eight-state threshold before the first ballot, much less to talk about breaking a possible convention deadlock by nominating anyone who is not right now a candidate for the nomination.

The current Republican rules regarding these matters are unprecedented and anti-democratic.

In Virginia, for example, our proportional presidential primary on March 1 allocated delegate votes to five different candidates. A national party rule requires some Virginia delegate votes be cast for each of those candidates, but another of those rules forbids the counting of Virginia delegate votes cast for any candidate who didn’t win the support of a majority of delegates in eight states. This is a foolish and unfair contradiction in the national rules.

I have personally attended meetings of every Convention Rules Committee at every Republican National Convention starting in 1972, and I’ve served as Virginia’s member of the Republican National Committee’s Standing Committee on Rules since 1988. Not once before the Romney power grabs at the 2012 Convention Rules Committee meeting in Tampa was it ever suggested that the votes of duly elected and credentialed Delegates should not be counted even though they voted in accord with the applicable state party rules and state laws.

At every national convention before 2012, from time immemorial, a duly elected delegate not bound otherwise by state party rules or state law was free under the national rules to vote to nominate anyone for President, without regard to whether or not that person was accorded the honor of a nominating speech and a floor demonstration.

Throughout the history of the Republican Party, state parties often supported “favorite sons” for President, often with dramatic speeches and floor demonstrations. Unbound Delegates were free to vote for anyone, even those who had little or no chance to be the Republican presidential nominee. Nevertheless, Republicans almost always picked our nominee on the first ballot.

When TV began to broadcast proceedings of the national conventions, many believed that “favorite sons” ate up too much convention time and weren’t very interesting to the national TV audience. So the party rules were changed to limit the honor of nomination speeches and floor demonstrations to candidates who met some threshold of proven support.

That required threshold varied from time to time. As the 2012 convention convened in Tampa, the threshold for qualifying for nominating speeches and floor demonstrations was proof of plurality support from the delegations of five states.

To make sure that Ron Paul didn’t qualify, the Romney campaign changed the threshold to require demonstrated proof of support from the majority of the delegations from eight states.

The Romney campaign went even farther and changed the rules to prevent even the counting of delegate votes cast for candidates who didn’t meet the eight-state threshold. That unfairness threw out the votes earned by all candidates except Romney. This caused a bitter commotion on the convention floor in Tampa and hurt Romney in the November election.

Prior to the meeting in January 2016 of the RNC Standing Committee on Rules in South Carolina, I circulated to all RNC members a proposed amendment to The Rules of the Republican Party to provide that “the votes of all credentialed delegates properly cast according to state party rule and state law shall be reported by the state delegation chairman, repeated by the Convention Secretary, and included in the Convention Chairman’s announced tally of the votes on that ballot.” This would have restored the “threshold” question’s application only to the matter of candidates qualifying for nominating speeches and floor demonstrations, as it had always been.

I arrived days early for the meeting and received commitments of support from many RNC members, including some who routinely vote with the party establishment.

At the meeting of the Standing Committee on Rules, I introduced my amendment. It was seconded. Debate began.

Member after member spoke in support of my proposal. To my surprise, the RNC General Counsel rose, and the meeting transcript shows that he spoke favorably about my amendment, among other things saying, “I think we need to honor the intent of the voters in the states by recognizing the instructions they have given to their delegates.” He also said later in the discussion, “So I think in order to be true to our own rules and our intent, we need to allow of these votes to be counted and the voice of the people to be heard. I think it’s self-evident.”

Unlike previous RNC General Counsels who also served simultaneously as members themselves of the RNC, the RNC’s current General Counsel serves as Chairman Reince Priebus’ point man in debates in the RNC Standing Committee on Rules. The General Counsel and I agreed on what was to me a minor, non-substantive amendment to my proposal, and the Standing Committee passed my slightly altered amendment by an overwhelming voice vote.

A few minutes later another RNC lawyer who is known to be very close to Chairman Priebus left his place by the Standing Committee Chairman at the head table and went over to the side of the room to the table of RNC lawyers there. He said and loudly kept repeating that candidates who were not nominated should not receive any delegate votes.

For several minutes further business was halted while RNC lawyers and several RNC members held a discussion at the lawyers’ side table.

Then the General Counsel moved to reconsider my amendment which the Standing Committee had just passed with his support. It became clear that the powers-that-be had switched signals. The motion to reconsider my amendment passed.

Then the General Counsel moved to delete from my amendment the words “and included in the Convention Chairman’s announced tally of votes on that ballot.” His motion passed, restoring that Romney power grab from the Tampa convention.

Long experience has taught me that articulate lawyers can make a case with a straight face for anything, and many of them can reverse their positions on a dime.

In this case, my amendment would have restored the historically honored rights of duly elected and credentialed Delegates to have their votes counted, as long as they acted in accord with their state party rules and state law. It would also have eliminated one reason for a great many Delegates to go home feeling cheated because their votes weren’t counted.

The counter-argument was expressed by little else than loudly repeating the claim that candidates not nominated may not receive votes. That’s absurd, of course.

Many un-nominated candidates from time to time have won election by write-in votes by legitimate voters. Any organization has the right to write its own rules. Our Party adopted the “threshold” rule to prevent delay of our national conventions by nominating speeches and floor demonstrations, without any thought or intent to deprive legitimate Delegates of the right to vote for candidates they support or for whom they were bound by their state party primaries.

Under the current rules, the 2016 convention could be deadlocked because so many legitimate Delegates’ votes couldn’t be counted that no one could assemble the required 1,237 delegate votes. Or after a deadlock, a majority of the Delegates might be ready to nominate someone they couldn’t vote for because that preferred candidate didn’t meet the required threshold before the first ballot.

And in the best possible scenario under the current rules, many legitimate Delegates will go home disgusted because their votes weren’t counted.

There are still four ways any rules regarding the 2016 nomination process at the convention can be changed.

First, the RNC Standing Committee on Rules could adopt changes, including once again reversing itself and restoring legitimate Delegates’ right to have their votes counted.

Second, the RNC itself could in Cleveland amend the report of its Standing Committee on Rules.

Third, the Convention Rules Committee, comprised of two Delegates, a man and a woman elected by each state’s Delegation, can and always does make amendments to the proposed new rules package it receives from the Republican National Committee.

Fourth, when the report of the Convention Rules Committee is received by the national convention, the convention itself can adopt new amendments, but only if the convention receives a minority report signed by at least 25% of the members of its Convention Rules Committee.

Unfortunately, the January RNC meeting in South Carolina was the last time it was likely to be possible to make changes dispassionately based on what is fair and best for our Party in the rules governing the nomination process at the coming convention. Now every proposed rule change will be evaluated by the effect it would have on the respective candidates still in the nomination contest.

The Romney campaign in 2012 broke with the practice of incoming nominees for many decades of allowing the Convention Rules Committee to make its own decisions. If any 2016 candidate comes to the convention with 1,237 or more committed delegates, he might use his power to reform the national Party rules.

And it might be possible for two or more of the current four candidates to agree to support a set of reforms in the Party rules that would make those rules more fair and increase the extent to which power in our Party can flow from the bottom up.