Let’s begin with a simple proposition: As a matter of law and history, there is not a single “bound” delegate to the Republican National Convention. Not one delegate is required to vote for Donald Trump, Ted Cruz, Marco Rubio, or any other individual who “won” votes in the primary process. Each delegate will have to make his or her own choice. They — and they alone — will choose the Republican nominee.
The paragraph above contradicts much of what you’ve been told about the presidential nominating process, and it even contradicts state law in multiple jurisdictions, but state law does not govern the Republican party. The party governs itself, and according to the rules it has implemented, there is only one convention where the delegates were truly bound: 1976’s, when Gerald Ford fended off a challenge from Ronald Reagan. In every other Republican convention ever held, every delegate has been free to vote their conscience. Let’s break this down, legal step by legal step:
1. State legislatures cannot violate the First Amendment rights of Republican delegates. Throughout the primary, pundits have reminded voters again and again that there exists a patchwork quilt of state laws that “require” delegates to follow the will of the primary voters — sometimes only through one ballot, sometimes through more. These laws are unconstitutional. A state entity cannot mandate the manner in which private citizens govern private organizations.
Indeed, the notion that states can compel members of private associations to vote according to primary results is a fundamentally progressive notion, an expansion of the government into the private sphere. Yet First Amendment guarantees of free speech and freedom of association stand as a bulwark against exactly this kind of government interference.
Indeed, the Supreme Court has already ruled that in a conflict between state law and national-party rules, the national-party rules take precedence. In Cousins v. Wigoda, the High Court decided a dispute between two delegate slates to the 1972 Democratic Convention — one slate (the Cousins slate) was selected according to Illinois state law; the other (the Wigoda slate) was actually seated at the convention. The Court granted review to determine whether Illinois courts were “correct in according primacy to state law over the National Political Party’s rules in the determination of the qualifications and eligibility of delegates to the Party’s National Convention.”
The Court ruled for Wigoda, holding that:
The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to 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.” 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. [Internal citations omitted.]
Or, to put it in plain English, the Court essentially told the states to mind their own business and let the parties govern themselves.
2. Traditional and current Republican rules and practices allow delegates to vote their consciences. The first and most important RNC Rule to remember is the so-called “Unit Rule” — Rule 38 of the “Rules of the Republican Party.” This rule states, in its entirety:
No delegate or alternate delegate shall be bound by any attempt of any state or Congressional district to impose the unit rule. A “unit rule” prohibited by this section means a rule or law under which a delegation at the national convention casts its entire vote as a unit as determined by a majority vote of the delegation.
In other words, a majority of a delegation cannot cast its vote on behalf of all of the delegation. Delegates can abstain, or they can vote for different candidates. This rule and Rule 37, which mandates individual roll-call voting and permits individual delegates to challenge the count, combine to permit delegates a choice.
Next, Rule 40(d) requires that a candidate for the presidential or vice-presidential nomination receives “a majority of the votes entitled to be cast in the convention.” In other words, they don’t win by receiving a majority of the votes actually cast but rather by receiving a majority entitled to be cast. The nominee has to get at least 1,237 votes to win.
Each delegate will have to make his or her own choice. They — and they alone — will choose the Republican nominee.
At the same time, however, the current rules purport to limit delegate discretion. Rule 16(a)(2) — adopted in 2013 — recognizes state “bindings” and thus compels delegates to vote even against their consciences. The rule states that the secretary of the convention shall record a vote in accordance with the delegate’s obligations under GOP rules, state law, or state-party rules, and if a delegate votes for “any person other than the candidate to whom he or she is bound, such support shall not be recognized.”
Yet this rule was not in force in the 2012 convention, it conflicts with the principle of individual delegate choice outlined in Rule 37, and, as Curly Haugland and Sean Parnell argue in their new book, Unbound: the Conscience of the Republican Delegate, it “will expire upon the start of the 2016 convention and will not be part of the standing rules of that convention.”
Which is to say that Rule 16 would have to adopted by a vote of the RNC Rules Committee in Cleveland before it even applied to this year’s delegates. Yet even if that happened, an abstaining or dissenting delegate could not be counted as supporting any other candidate for president. And this brings us to the final point . . .
3. If the Republican party wishes to bind delegates to Trump, it will have to change the rules to do so. It is inarguably true that each convention sets its own rules. It’s also true that past practice and longstanding party principles have exerted strong influence on the process. If the party wishes to truly bind delegates — and to void the conscience protections in Rules 37 and 38 — it will have to pass something similar to the “Justice Amendment” rammed through by Ford supporters in 1976, an act binding delegates that the 1980 convention promptly repealed. If the RNC follows the dominant historical precedent, delegates will be able to vote their consciences.
#related#None of this means that Trump is in any imminent danger of a delegate revolt. But it does mean that delegates do not go to the convention with their hands tied. They will be choosing to vote for Trump. Some will make that choice out of conviction, some out of a belief that they should act as the instrument of the voters, and some out of raw fear. But they will all be making a choice.
If Donald Trump does emerge as the nominee of the Republican party, it will not be because anyone forced him on the GOP. It will be because every level of the GOP made a decision that he should represent its principles and values in 2016. No one can hide, and no one can run for cover. The party will decide.
— David French is an attorney, and a staff writer at National Review.