Contrary to wishful thinking, the results of Iowa and New Hampshire only confirm the same stark reality that has haunted the Republican nomination process from the beginning: Party rules are a tragic accident waiting to happen.
The most obvious result of the opening contests is that selecting a nominee will be a drawn out affair. Donald Trump gets bragging rights for a big victory in New Hampshire but so does Ted Cruz for Iowa. Yet Trump underperformed by winning only a third of the vote when the polls predicted he would win more. He gained no new votes over the course of the campaign and the polls in South Carolina show him around the same one-third total. He will not run away with the nomination.
Cruz cannot dominate either, even after relatively strong showings in the first two contests. His 4 percentage point margin in Iowa was impressive since he was opposed by the entire state establishment for his opposition to ethanol subsidies, the supposed third-rail issue in Iowa. The popular sitting governor and the whole state agricultural industrial sector proclaimed that Cruz must lose to save the state. The fact he won against this headwind, to say nothing of Trump and a talented field of others, does show remarkable strength. But he did come in third in New Hampshire behind John Kasich.
What stops Cruz from opening a commanding lead as he heads into nine southern states that should be his natural base? The first obstacle is that the Washington Republican establishment simply loathes him. They recognize Cruz as someone who actually represents change that will threaten their privileged position of power in the nation’s capital. They will fight him with all it takes as long as it takes. The fact they prefer even Trump as one with whom they can cut deals demonstrates the strength of their convictions against a Cruz candidacy of principle.
Even that barrier to Cruz’s nomination is superseded by the threat from the new Republican Convention rules. The Southern Super Tuesday primaries and the other Southern contests before March 15 are required for the first time to award their primary delegates by proportional representation where each candidate wins only the percentage of delegates he receives from the popular vote, rather than the first-place candidate winning all delegates. That method guarantees no candidate will be able to build a commanding lead until after March 15 when winner-take-all nomination contests become possible.
Southern states have held Super Tuesday nomination contests since 1988 as a means to give the region more importance in deciding who will become the presidential nominee and to some extent it has worked. But until now they were not required to split their delegate votes. This year the southern state parties recognized that setting the dates before March 15 would dilute their importance but went ahead anyway in favor of winning mere media attention at the cost of real power, which is in delegate votes. As a result, not only will there be no bandwagon effect for a southern favorite like Cruz but the decision basically turns regional power to the Midwest, Northeast, Florida, and California, a moderate establishment’s dream for a Kasich or Jeb Bush.
Even if Cruz wins every southern state by 5 percent or more, he will only win a few more delegates than the second, third, or even fourth-place candidate. Even if he does well later, he and the rest of the candidates will most probably only be able to limp into a contested convention.
Republican party chairman Reince Priebus is confident that there will be no contested convention. He recently told Time magazine: “I know the rules pretty well, I’m pretty confident in how delegates are allocated, I helped write a lot of the rules and I believe that clarity will come very soon” as to who will win the nomination. The current plethora of candidates “doesn’t mean that, by the end of March or mid-April, the end of April, that it isn’t going to be very clear. There’s only so much money to go around, there’s only so long everyone can keep fighting.” He claimed he was prepared for a contested convention but based on his expertise did not expect one, “so it’s not like I need some sort of expert help to understand our own governing rules or how our convention might run.”
Priebus did help write the rules, but he vastly underestimates the dangers they represent. Trump has spent almost nothing thus far, so why can’t he go on forever? Certainly, the establishment candidate will not lack funds and neither would a competitive Cruz.
Virginia National Committeeman and rule expert Morton Blackwell went to the winter meeting of the Republican National Committee to warn the party’s ruling body between elections of the danger represented by other rules that might affect the nomination even more if there is a contested convention. He reminded them that
at the 2012 Republican National Convention in Tampa, a great many Delegates’ votes were not counted in the convention’s tally of the ballot for the presidential nomination. After loud cries of outrage from the convention floor in Tampa, hundreds of Delegates went home furious at the Romney campaign. As the national Rules of the Republican Party now stand, something similar would certainly happen again at the 2016 Republican National Convention in Cleveland. This time, even more Republicans would be mad at their party. Perhaps worse, as the Rules of the Republican Party now stand, the 2016 Republican National Convention could nominate a candidate who does not receive the votes of a majority of the duly elected Delegates.
Blackwell explained that the procedural rules of the convention were changed years ago to accommodate TV by not allowing frivolous “favorite son” candidates to eat up valuable air time at the expense of the actual nominee. The rules were thus changed to require any candidate to have “substantial support” from several states to qualify for nominating speeches and floor demonstrations. At the last convention, “the Romney campaign amended the rules as the convention began in Tampa and changed the requirement from having a plurality of the delegations in five states to having a majority of the delegate votes in at least eight states. They knew that this rules change would prevent a nominating speech and a floor demonstration for Ron Paul or anyone else except Mitt Romney.” The rules were changed to prohibit “even the recording or tallying of delegate votes” for any candidate who did not meet the new threshold.
The critical action was that the Convention Chairman and the Convention Secretary held
that Rule 40(b), as adopted by the 2012 national convention, required that only candidates who had the support of a majority of the delegate votes in at least eight states could be formally placed in nomination as our presidential candidate and that, therefore, under new Rule 40(d), votes could not be counted for any candidate not meeting the threshold of eight states. To repeat this abusive procedure at the Cleveland convention would be a national scandal and would certainly damage the Republican ticket. At no time, not even at the 2012 convention, when any such threshold requirement was proposed, debated, passed, or amended, was there any suggestion that the national rules would prohibit the casting, recording, and counting of the votes of duly elected Delegates who cast their votes according to their state party rules and their state law. Yet the votes of delegates voting for Romney were the only votes announced by the 2012 Convention Secretary and counted in the final tally.
Here is what Blackwell calculates could happen at this year’s Republican Convention.
Assume that Candidate A wins 38% of the delegate votes at the national convention, then that Candidate B wins 39% of the delegate votes, and that candidates C, D, E, F, and G among them win the remaining 23% of the delegate votes. With many states binding their delegate votes proportionally to their presidential primary votes, this could happen.
Assume also that none of the five candidates whose numbers made up that 23% of the convention votes won the majority of delegate votes in at least eight states. That would be likely.
Then assume that a big majority of the Delegates whose votes were bound to Candidates C, D, E, F, and G would vote for Candidate A on a second ballot. That couldn’t happen because there wouldn’t be a second ballot. Under the current rules, the votes for Candidates C, D, E, F, and G wouldn’t be counted. Candidate B would receive the presidential nomination with the votes of only 39% of the duly elected Delegates, although a majority of the total number of Delegates preferred Candidate A over Candidate B.
Blackwell’s reform proposal was defeated by the RNC, to a great extent in deference to Priebus’s expertise, which insisted this chaotic scenario could not take place. But in fact, this remains a possibility.
One theory is that the Republican establishment does not care if there is a chaotic convention if Cruz would become the nominee since the negative reaction to such a convention would surely end in his loss of the general election and the establishment soon back in control of their party. The more ominous scenario would be for the establishment to manipulate the Republican Party mechanics that run the convention to have the secretary simply declare either Trump or the establishment candidate the winner by only counting those votes they deemed legitimate. Of course, the conservative base would be infuriated and the GOP would lose the general election, but the party would again be back in the hands of the establishment.
Heads we win, tails they lose.
This may all appear implausible in today’s modern media age, but this rules expert was himself a prime participant in the rules shenanigans at the last contested convention in 1976, assisted in the dramatic rules changes at the 1972 convention, managed several contested state conventions, and can testify that this possibility is not mere fable. Indeed, the 1952 Republican Convention did in fact refuse to count the delegate votes from Texas, Georgia, and Louisiana on key rules, votes denying the nomination to conservative favorite Robert Taft.
It happened before and it can happen again. Only this time it could be easier since the Republican National Committee has signaled beforehand that the convention secretary and chairman might just be able to settle the matter all on their own.
And the chairman will be Senate Majority Leader Mitch McConnell.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and one of his campaign strategists.