Revisiting Rule 40

This past Thursday night my Twitter feed began filling up with links to Alexandra Jaffe's story on the impact of Rule 40(b) on John Kasich's chances at the Republican nomination in a contested convention. The heart of story is a three paragraph section:

But top RNC strategists confirmed to reporters Thursday at the committee's Spring Meeting that the 40b requirement amounts to little more than a technciality. Having your name put into nomination affords candidates a number of advantages, like space in the convention hall and a nominating speech. But it's not required to ultimately win the nomination. 

Under the current rules, even those candidates who don't meet the 8-state threshold can continue to amass delegate votes. And if they're able to cobble together the support of a majority of delegates — the magic 1237 number — they win, even if it's spread across all 50 states. 

Typical interpretations of Rule 40 assumed Kasich's campaign would somehow have to rewrite the convention rules to get the governor into contention for the nomination. That's a tall order for the campaign, as they'd have to pack the committee finalizing the convention rules with supporters, and both Cruz and Trump already have an advantage in that effort. Still, Rule 40b isn't final — the Convention Rules Committee will meet the week before the convention to finalize changes to the rules.

FHQ does not really see the news in this, and I certainly don't get the bit about the "typical interpretations of Rule 40".¹

The truth of the matter is that the RNC has all along viewed the process as a resetting after every vote at the convention (should it progress beyond a first ballot vote). That would theoretically give candidates the chance to 1) qualify anew, 2) qualify for the first time or 3) even fail to qualify under the provisions of Rule 40(b) on subsequent ballots. Candidates like Kasich -- likely to fall short of the majority of delegates from at least eight states threshold on the first ballot -- have that opportunity because the number of unbound delegates increases as the number of ballots increase.²

Those free agent delegates, bound on the first or second or third ballot, can move away from the candidate to whom they were bound for a candidate such a delegate 1) preferred in going through the delegate selection process to become a national convention delegate (a sincere delegate), 2) supports for strategic reasons to prevent another candidate from claiming the nomination or 3) prefers because one candidate is viewed as more electable in the general election.

Combining those two factors -- a nomination reset and a growing number of unbound delegates over time -- means that Rule 40(b) was always less prohibitive than many have cast it. Unbound delegates can shift to candidates -- white knights, John Kasichs or otherwise -- and help them to form coalitions that not only qualify them under (a current or altered) Rule 40, but ideally surpass the 1237 threshold.

Kasich does not need rules changes. His campaign needs time at the convention; time measured in terms of the number of ballots cast. He will not qualify under the current Rule 40(b) and will not have 1237 delegates behind him.

Not on the first ballot anyway.

Rule 40(b) being in place or not does not change that reality. If Donald Trump gets to 1237, then there is little Kasich or anyone else can do on that first ballot. Should Trump fall short of that mark on the first ballot, then Ted Cruz seems well positioned to increase his number of delegates on a second vote and Kasich could potentially qualify (if enough unbound delegates come his way). Things moving down that path then puts a premium on the delegate selection process going on now. Those efforts affect how a second or third vote or beyond goes. When the bond disappears, those delegates are free to fit into the three categories described above (or others). The decision-making calculus changes for them.

But the bottom line here is Kasich's roadblock is not Rule 40(b). His roadblocks are the delegates he is not being allocated now and the selection process in which the Cruz campaign has jumped out to a lead. But if, as delegates become unbound at a hypothetical contested convention, Kasich amasses 1237 delegates, then yes, he, too, can become the Republican nominee.

That is a pretty steep climb though.


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Previous Post:
The Real Import of Rule 40 in 2016


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¹ And this idea that someone can have the support of 1237 delegates distributed 50 states and not qualify under Rule 40(b). That seems quite far-fetched. Mathematically, it is possible, but it is not at all probable.

² That RNC interpretation of Rule 40 is not shared by all. There are those who say the rule is silent to the matter of renomination (or second/second chance nominations) and others who take a harder line that the rule would limit the voting to just those who qualified under the provisions of Rule 40 before the first vote.

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Throwing Out Convention Votes?

The genre can be a bit of a burr under the saddle to FHQ at times, but Philip Bump at least had a nice and pretty thorough brokered contested convention explainer up at The Fix over the weekend.¹ I'll resist the urge to dig in too deeply at this point. However, there was one glaring inaccuracy in the write up that should be corrected.

It involves the small blurb about the impact of Rule 16 at the convention. Here is Bump's interpretation:

Rule 16: If delegates vote for someone besides the candidate to whom they are bound, those votes are thrown out.

This is wrong. These votes -- those cast against the delegate bind -- are absolutely not thrown out. If one reads the rule in full it ends up sounding that way by the end of the paragraph. Yet, the key is at the very beginning.

Let's look at the text of Rule 16(a)(2):

The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. Except as provided for by state law or state party rule, no presidential candidate shall have the power to remove a delegate.

[Emphasis added by FHQ]

Bump is picking up on that vote recognition part at the end. But not recognizing a delegate's vote is different than throwing out that vote. In fact, it is impossible to discard a vote that has already been "announce[d] and record[ed]" in "accordance with the delegate's obligation". The order of this is of the utmost importance here. It sets up a sequence: record the bind and ignore the violation of it.

That is at least part of the reason why the RNC amended the language of the rule as it existed coming out of Tampa at the spring RNC meeting in Los Angeles in April 2013 without really changing the intent of the rule itself. Here is the version of Rule 16(a)(2) that was adopted in Tampa and amended eight months later:

For any manner of binding or allocating delegates under these rules, if a delegate (i) casts a vote for a presidential candidate at the national convention inconsistent with the delegate’s obligation under state law or state party rule, (ii) nominates or demonstrates support under Rule No. 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or (iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the national convention for a particular presidential candidate, the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the secretary of the convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates.

[Emphasis added by FHQ]

This is the kitchen sink version of the same rule discussed above; the current rule. But notice that even under this rule, the vote is not thrown out, the delegate is. Then the vote is counted as if the delegate had cast it properly and in accordance with the instruction of the binding. Note also that the actions of the rule are flipped. In the early version of the rule the secretary of the convention awaits some violation before correctly recording the vote. The altered, current version completely removes the ability and motivation of a delegate to vote in violation of the binding by reversing the order. But the changed rule to eliminate the resignation of a delegate.

But the bottom line here is that in neither case would the vote have been thrown out. That would make an already messy situation -- a contested convention -- even messier.


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¹ It is not that FHQ does not like the convention discussion. It usually entails a headlong dive into the rules, and I am rarely averse to that. However, we have all been through this before. We are entering into brokered contested convention chatter season, but it ends up being a quadrennial exercise in putting the cart before the horse. There are delegate allocation rules that are going to matter a lot more in the near term than trying to calculate the conditional odds that they -- the rules -- are going produce an inconclusive outcome in June.

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