RULE 40(b): MYTH AND REALITY
As we reflect on what might happen in the important New York primary today, lawyers behind the scenes are looking at the rules that apply to delegates for each state, and the rules that apply to the Republican National Convention to be held in Cleveland.
For a long time Donald Trump has boasted, quite properly, about the efficiency of his campaign. He plausibly argued that his efficient operation was testament to his executive prowess. Though a novice candidate, he managed to control the news cycle with his Twitter and telephone interviews and rallies. More broadly, he set the agenda, and others followed. Further, while spending a fraction of what his opponents were spending, he continued to be the frontrunner, while forcing nearly all of his sixteen opponents out of the race.
As of now, only two formally remain -- Ted Cruz and John Kasich. The Ohio governor has limited resources and only a skeleton organization, hardly national in scope. But in running his positive campaign, he continues to draw support, and he is likely to run second in today's New York primary. This could happen despite his eating pizza with utensils. And there was his awkward encounter with Yeshiva students. That's when he challenged these most religiously observant Jewish boys on whether they had heard of Joseph; these future very-orthodox rabbis study the scripture from morning until late at night. Perhaps Kasich was inspired by Trump's "Two Corinthians" blunder of last year.
It seems an eternity to the June 7 primary in California. But as of now Kasich, without much of a campaign, is not all that far behind there. That's my feel, though I have not conducted a statewide survey. In my judgment, right now, it's too close in California to call it for Trump or Cruz, that is, if the election were today. And unless Kasich shows some momentum, Republicans in California might feel a vote for him is wasted, and thus Cruz would be the net beneficiary.
Unlike some of the primaries, the California presidential primary for Republicans is open only to registered Republicans. That favors Cruz over Trump, who has relied in some states on disaffected non-Republicans (independent voters not registered in a party, and even some Democrats). Indeed, on occasion, these non-Republicans might have provided the margin of victory for Trump in the primary.
Cruz has some stars in his California orbit of political talent. His campaign is, in this regard, far more advanced than Trump's, certainly in the Golden State, and also nationally. Trump just hired a California operative, a competent and experienced fellow who has never met Trump, and who has a particular challenge .That's because the Cruz team is focusing, strategically and tactically, on the outcome per congressional district, each such district good for three delegates, even if the district has few Republicans in it.
And Trump's national field director just quit, a casualty of the internecine power struggle between Paul Manafort, the long-time Washington insider, and the insurgent, Corey Lewandowski, who is the Fall Guy for the campaign's failure to get up to speed on the delegate selection process. Almost a textbook case of internecine warfare, we have Manafort and Lewandowski both doing television appearances to telegraph their authority. All we need is Abbott and Costello for "Who's on First?"
Already Manafort is complaining to Trump about Lewandowski's weekend appearance, in which the campaign manager, now subordinate to the Outsider (actually Insider) Manafort, was off-message (and inaccurate in the facts) in taking on the Florida Republican party chairman. But Manafort's hands (large hands?) are unclean; the prior weekend he ridiculously and offensively accused the Cruz campaign of "Gestapo tactics."
At the end of the day, the macro-Big Picture is pivotal, and the feel of momentum can be decisive in its effect on California. But barring an absolute national dominance of the race by Cruz or Trump, we are, for now, talking about 53 different primary elections in California. And that's where Cruz excels --on the ground.
Back to November. Some have assumed Trump's past "crossover" voters are an omen of a favorable outcome for Trump in a general election. The data do not support such a premise. If that theory were valid, we would see it reflected in the many general election polls between Donald Trump and Hillary Clinton. For reasons best known to himself, Trump has relentlessly driven up his negatives among various voter groups, including voters who might have been open to him.
But to repeat, in California only Republicans can vote in the primary. And they will vote in droves, and a HUGE number will vote by mail. The Cruz team already is identifying Cruz voters to crank out, if not in the mail as "banked" voters, then on Election Day. Jeff Roe, the campaign manager for Cruz, manages an operation that is micro in its details. He is the sort of guy Trump would have hired for one of his developments.
This is a volatile year, and Trump as the party nominee could indeed upset "Crooked Hillary." This nomenclature ("She's been crooked since the beginning") will damage her, because Trump will be relentless. Pretty soon the words will be discussed until they become part of the campaign dialogue.
Trump certainly has his work cut out for him, given his concerted and gratuitous, even inexplicable, effort to alienate significant parts of the electorate. But Hillary is not especially liked, so anything could happen if Trump is the nominee. If not indicted, she may end up with an "insufficient evidence to indict and have reason to believe the indictment would be sustained" kind of outcome.
Still, try as Trump might to challenge the way the RNC does business for the primary process and convention, it will be awkward, to say the least, for him to challenge the Electoral College if he loses in November.
Thus far in the primary process, in several states Trump has received a higher percentage of delegates than he received votes in that state. This was based on the rules for each respective state, and Trump never complained when the rules favored him. And his opponents, when they lost to Trump, did not complain of unfairness when Trump received that disproportionate number of delegates.
Now that Trump has lost several states, he charges foul play. But the more plausible explanation is that, in his novice approach, Trump did not do what he does in business -- learn all there is to know before acting, negotiating, closing the deal. He and his amateur team seemed, if not ignorant, then oblivious to the rules that were in existence for various periods of time, the rules even in some cases predating his announcement of candidacy. And the need for a majority of delegates to win the nomination is historic, not exactly a new development.
Meanwhile, Ted Cruz has failed to connect the dots. While Trump is setting up a narrative that anything short of the nomination is an act of theft -- stealing the nomination from him -- the Cruz team has failed to focus on this: Trump's operation was quite incompetent in its failure to research the rules and act on them. And connecting the dots is to say that this failing reflects on Donald Trump as commander in chief of the Trump campaign. Instead, Cruz seems to suggest that Trump is a bad sport, hardly convincing to voters if they buy the Trump premise that the game is rigged.
Another failure of the Cruz side is to persuade the networks to post the number of delegates pledged to Rubio. Such posting would make the Trump number of delegates less impressive, because the combined Cruz-Kasich-Rubio total has exceeded the Trump total.
There has been much discussion of the rules adopted four years ago for the Republican National Convention that nominated Mitt Romney. It has been argued that those rules are temporary, and new rules could well be adopted. For example, particular attention is paid to Rule 40b. This was effected to prevent placing in nomination in 2012 the name of Ron Paul. The rule was, it was said, that to be placed in nomination, the person must have a majority support of delegates in at least eight states, and Ron Paul did not. The Romney people felt that Pat Buchanan's speech in 1992 hurt George H.W. Bush for the general election, and they wanted to avoid Ron Paul.
This rule, it is commonly thought, uniquely benefits Donald Trump and Ted Cruz, who share a common interest in opposing any change to it. In other words, only Trump or Cruz meet the eight-state test, because only Trump or Cruz won a majority of delegates in at least eight states. Thus, John Kasich or anyone else could not be placed in nomination, because they would not qualify by this eight-state rule.
So I invite you to actually read rule 40(b). Here it is its entirety:
- 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.
Much has been said about the fact that many delegates pledged to Trump on the first ballot would not stay with him subsequently, that is, if Trump fails to win the nomination on the first ballot. Here's one more point: though fulfilling their pledge to vote for him on the first ballot, many delegates so pledged to Trump could vote against his interest on procedural or rules matters.
Let's take it one step further. Based on the plain language of 40(b), at least one hour in advance of a nominating speech for a candidate, a majority of delegates in each of eight states can in writing affirm support for that candidate, even if those same delegates are obligated on the first ballot to vote for, say Trump or Cruz or Kasich or even Rubio (who still has delegates). In other words, a majority of delegates pledged, let's say, to Trump, could fulfill that pledge on the first ballot but they could, even before the first ballot, specify their support in writing for someone else; if that happened in eight states, that someone else could be placed in nomination. It might even be possible for them to do this on a subsequent ballot.
This example opens up a discussion on the whole process of rules. What were the rules in 2012? Does the convention default to them, unless new ones are approved? How should they be modified? How can they be interpreted? And how does one rule affect another? This is a whole Pandora's box.
Thus, it's not that a candidate won a majority of delegates in each of eight states, so that he can be nominated. It's that a majority of delegates in each of eight states specifies their support in writing for a particular candidate, whose name then can be placed in nomination, on the first ballot, on the second ballot, or whatever.
That's the way I read it.
This also appeared in The American Spectator