On November 25, we co-authored a Politico commentary called “A rogue convention? How GOP party rules may surprise in 2012” that struck a chord with many readers. Those highlighting or responding to our piece include the Washington Post’s The Fix (calling it a “must read”), Andrew Sullivan’s The Dish in “The Daily Beast”, the influential conservative website Hot Air, Election Law blog, Ballot Access News, and political analyst Michael Barone. You can read a torrent of comments about the piece at some of these links. We also have had reactions directly from representatives and members of the RNC.

Our piece focuses on the Republican National Committee rules governing how delegates are chosen for the Republican national convention next August and what those delegates are bound to do – and not do -- at the convention. Our conclusion is that RNC rules conflict with the conventional interpretation of the meaning of upcoming primaries and caucuses, and may well lead to challenges to seating delegates at the Republican convention next summer.

While not predicting a “brokered convention,” we explain the legal and political arguments for why it might happen. The combination of Rule 38, widespread use of winner-take-all primaries, and a Republican electorate that to date is not thrilled with its announced presidential candidates may invite a convention challenge. Some critics, like Barone, have claimed that we misread Rule 38’s prohibition against what’s called “the unit rule,” but in fact they misunderstand our point.

Barone say we have it wrong that the unit rule ban doesn’t allow state parties to use winner-take-all primaries in which the plurality winner of a state earns all that state’s delegates. But we aren’t claiming that the rule prevents winner-take-all primaries (at least after April 1st, as the party in 2010 did vote to prohibit winner-take-all primaries before April 1st except in the four states given special rights: Iowa, Nevada, New Hampshire and, the one state using a winner-take-all primary, South Carolina).

Rather, we explain that the RNC rules’ provision on the unit rule make it clear that delegates aren’t bound to vote according to how most delegates from their state are voting. In fact, delegates can vote according to their own judgment and conscience, and that this is most likely to take place in a state where a state party’s winner-take-all rule has allowed a candidate to win all delegates primarily due to a split in the majority vote, or due to votes cast by non-Republican voters participating in the contest.

To explain our case, we look to the language of Rule 38, which was adopted in its current form in 1964. The rule states: “no delegate shall be bound by any attempt of any state or Congressional district to impose the unit rule.” The unit rule does not prohibit a state from using a winner-take-all primary in the same way that Rule 15(b) prohibits most states from using a winner-take-all primary when holding a contest earlier than April 1st. However, the unit rule does prohibit binding delegates to vote according to how a majority of delegates from their state vote – again, a scenario most likely to occur in a state using the winner-take-all rule.
 
As set out in the Rules of the Republican Party, delegates have the ability to vote according to the delegates’ preference, even if that is contrary to the outcome of each state’s primary. According to one source, the legal counsel for the Republican National Convention in 2008 stated: “[The] RNC does not recognize a state’s binding of national delegates, but considers each delegate a free agent who can vote for whoever they choose.” Thus, if a delegate were to challenge his or her ability to vote as a free agent, he or she would have grounds under Rule 38.
 
For further clarification on the meaning of Rule 38, it is instructive to look to the debate in 1964 when the RNC debated whether to strike the Rule 38 language from a proposed amendment that was adopted that year. The debate begins on page 64 of this source. The RNC voted 59 to 41 to keep the rule in the amendment, noting that it helped to clarify a longstanding practice that a delegate was free to take exception to the roll call, and was free to vote his or her preference. Those who sought to strike the rule feared that its inclusion in the rules would give delegates freedom from both a non-existent legal obligation and a moral obligation to vote according to instructions from their state. However, even these opponents of the rule admitted that there never has been any legal obligation for a delegate to do so.

The contrast between the actual Republican Party rules governing its convention and most people’s understanding of the role of the primaries underscores the way that the party system has changed rapidly in today’s modern era. Many of the RNC rules come from a time when conventions chose nominees and the party was a meaningful institution, representing an association of individuals coming together, articulating platform positions, and choosing candidates to stand for those positions.

With that understanding, the rules governing a party are those of a private group, not a government entity. A private group should have the right to nominate candidates however it wants, which is a fact that some analysts like Barone seem to have difficulty grasping, Last March, for example, Barone went so far as to criticize current nomination grounds under the bizarre pretext that the U.S. Constitution doesn’t spell out what parties should do. He wrote, “The weakest part of our political system is the presidential-nomination process. And it’s not coincidental that it’s the part of the federal system that finds least guidance in the Constitution.” Not only does the Constitution leave electoral rules quite vague  - with nothing on how U.S House Members should be chosen beyond the fact of being elected, for example, and nothing whatsoever on how states must pick electors to the Electoral College -- but it would be strange indeed for the Constitution to mandate how private associations should pick their leaders.

Even though it certainly matters today whether a presidential candidate is a Republican or Democrat, parties are less meaningful as associations and much more important as “brands” in an electoral politics driven by consultants, big money, and, the one upside, more voters. To many in the major parties, party conventions now are essentially showcases for candidates determined before the convention. In this atmosphere, selection of candidates can take place in a winner-take-all manner because candidates and their backers do not care if elected delegates accurately reflect the differences of opinion among Republican voters. When conventions don’t really matter, state parties can blithely dismiss the impact of RNC penalties like losing half their delegates due to advancing the date of their primary, as is the case for several states holding primaries next year.

We believe that this difference between the letter of the rules and the way they have come to be interpreted could lead to some surprises in 2012. Regardless of whether it happens, we think the broader conversation about the role of parties as institutions is important, as we value people coming together in organized associations. You can see related writing about this topic on a paper Rob coauthored last year on California's new Top 2 law and our suggestions of better ways to strengthen association rather than weaken it.

We will be writing more on this topic, and will continue to follow the Republican contests closely. The latest polls, with dramatic changes almost week to week, suggest that it could be a wild ride that just may not end until the final days of the Republican convention in Tampa.