Not So Fast, Romney

If the Republican Party doesn't wrap up its nomination very soon and rally around a consensus candidate, we are heading to a Tampa National Convention of epic battles, divisive delegate challenges and a deadlock that could rupture the party or cause it to reach outside of the remaining candidates for someone to bring method to its madness. And if the Republican Convention determines not to enforce its party's rules on its constituent state parties, the Party will find itself (and possibly the Democrats as well) with no rules left to enforce in the future. Last night's muddled split decisions all over the country, with non-proportional awarding of delegates in violation of RNC rules, makes floor fights and credentials challenges far more likely. The Republican Super Tuesday all but invites the Tampa Convention to adjudicate and enforce its own rules

In 1972, the regular wing of the Democratic Party, organized labor and five presidential campaigns coalesced in a last ditch effort to block what they thought would be the disastrous nomination of George McGovern. Their vehicle was a credentials challenge against McGovern's winner-take-all California delegation. It succeeded in the Credentials Committee but ultimately failed on the floor of the convention.

This concept of multiple presidential candidates using a proportional representation challenge to block the nomination of what they perceive to be an unelectable nominee could very well be the model for challenges to Romney's winner-take-all Florida and Arizona delegations, as well as to Romney's delegations from Virginia, Ohio and Massachusetts. The legitimacy of these challenges would be quite sound under Republican Party rules, indeed much firmer than the 1972 California challenge. And the Credentials Committee and Convention mechanisms to uphold such a challenge are actually quite simple. This could be something more than a farfetched fantasy of Newt Gingrich, Rick Santorum or the backers of a brokered "white knight." These challenges could very well turn into the most dramatic political moment of 2012, a death star battle between the "moderate" Republican Establishment and a radically more conservative base, with profound consequences to American politics not just this year but in the future.

The Republican Party, in an effort to reverse the frontloading of the delegate selection calendar, revamped its rules for 2012 to encourage later primaries and caucuses: Rule 15(b)(1) "No primary, caucus, or convention to elect, select, allocate or bind delegates to the national convention shall occur prior to the first Tuesday in March..."

Four traditionally early relatively small states were explicitly exempted from this provision -- Iowa, New Hampshire, South Carolina and Nevada -- to provide a "level playing field" to begin the nominating process. With respect to proportional representation and winner-take-all systems, the party was equally clear: Rule 15 (b)(2) "Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April... shall provide for the allocation of delegates on a proportional basis."

Republicans were trying to balance the influence of timing and proportionality to ensure that each state could play its own significant role in the presidential nominating process. If a State Party wants to go early and get the subsequent associated national attention it forfeits the ability to deliver a large, winner-take-all bloc of delegates. If a State wishes to maximize its influence in the process by having a winner-take-all system, its primary or caucus can occur no earlier than April. The Republican Party of Florida, in open defiance of both rules, scheduled a winner-take-all primary for January 31. Arizona also defied both rules by adopting an illegal winner-take-all primary for February 28th. Ohio, Massachusetts and Virginia adopted systems that clearly violated the required proportionality in primaries that took place within March.

The RNC punished Florida and Arizona for their early primaries by cutting their delegation in half. There is no further punitive action that the RNC can take to challenge their violation of proportionality. Only a credentials challenge to the seating of the delegations for violating the explicit proportional representation mandate can address the "winner-take-all" defiance of Florida and Arizona (and the lack of the required proportionality in the award of delegates of the systems used in Virginia, Ohio and Massachusetts). In light of the flagrant violations, such challenges, pursuant to the contest procedures established in the Party and Convention procedures are prima facae valid. The question is whether they could be politically sustained.

All 50 delegates from Florida have been awarded to Mitt Romney on the basis of his 46 percent victory. Further, he was awarded all 29 delegates in Arizona's winner-take-all primary. If the RNC rule on proportionality had been followed in Florida, Romney would have received just 23 delegates, with Gingrich getting 16, Santorum 7 and Paul 4, a net loss for Romney of 27 delegates which could be decisive in a fractured convention. A similar outcome in Arizona would reduce Romney's delegate count by an additional 16. (A smaller shift at the 1976 Republican Convention would have nominated Ronald Reagan instead of Gerald Ford).

If Romney comes to Tampa with a plurality but not a majority of all delegates, challenges to his Florida and Arizona delegations could be upheld. Similar challenges could be anticipated against the Romney delegations from Virginia, Ohio and Massachusetts which fail to comply with Rule 15's specific requirement of proportional representation in primaries that occur before April 1st. As an example, Romney received 46 of Virginia's 49 delegates based on his 59 percent vote in the primary. Under Rule 15, he should have received 28, a net reduction in his delegate count of 21. In Massachusetts he should have received 29 delegates instead of his winner-take-tall 41. And in Ohio, the delegate selection rules provide for 48 winner-take-all by congressional district and 15 proportional. Only the proportional section of the delegation is in compliance with Rule 15; the congressional district winner-take-all is in brazen violation of the rules.

Santorum illegally lost 7 delegates that he was entitled to under the Republican rules. We should remember that delegates are prohibited from voting on challenges to their own credentials, giving Rule 15 proportional representation challenges even more likelihood of success.

Not only could such successful challenges dramatically alter the outcome of the convention, but they would reinforce the national party's right to promulgate and enforce its rules on constituent state parties. If there are no consequences to Florida, Arizona, Virginia, Massachusetts and Ohio of their violations of explicit party rules, what would prevent other state parties -- Democratic and Republican alike -- from simply ignoring national party rules and mandates, knowing full well that they would receive enormous national attention and that their delegations would be seated in any case? Not only might the drama of a brokered convention be in store for us in August, but the Convention could set a precedent that could determine the future of the Presidential nominating process and of American political parties.

Mark Siegel, a partner at Locke Lord Strategies and former Executive Director of the DNC, wrote the California Challenge in 1972.