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Romney, Ron Paul & RNC Rules

by Kymberly Bays, published

The blogosphere is in a flurry today on the heels of the Ron Paul campaign announcement. Concerning its future in states yet to hold Republican primary elections, it looks like Dr. Paul will not be pouring money into these contests as he has continued to do. Is he done, completely? Or will he continue amassing what have been called "stealth delegates"? Even without an "official" campaign effort in states like Texas and California, can Dr. Paul continue to siphon a sizable chunk of Republican support from front-runner Governor Mitt Romney?

Recently, a number of commentators have raised question of the application of Republican National Convention Rule 38, a single sentence rule that essentially states that the Republican National Convention cannot impose a unit rule on delegates. The argument concerning Rule 38 has precedent. In 2008, a Utah Delegate who wanted to vote for Gov. Mitt Romney despite the fact all Utah Delegates were bound to Senator John McCain, was told besides the “binding rules” she could vote however she wished.

The reason for the focus on Rule 38 this election cycle is that a substantial number of Dr. Paul supporters are in theory bound to Gov. Romney or other candidates because of GOP delegate rules. Just how many of these delegates there are, remains unclear. GOP delegate rules often result in the candidates being forced to accept delegates chosen separately at state conventions.

Despite an RNC lawyer threatening punitive action in Nevada if Gov. Romney did not get to sign off on who his delegates are, the reality is that there is nothing in RNC Rules that gives Gov. Romney that right, nor gives him or anyone at the RNC any legal sanction. Besides Nevada, this issue arises in other states, including Massachusetts.

In fact, at the Maine State Convention there were reports that Ben Ginsberg, Gov. Romney’s top election lawyer, was looking into violations at Maine's GOP State Convention. It was also reported that Gov. Romney backers are contemplating launching a challenge to the results. Matt McDonald, a Dr. Paul supporter and one of the 15 at-large delegates elected in Maine, said Dr. Paul's campaign legal team was prepared to meet the Romney challenge.

Keep in mind, there are 4 discrete blocs or groupings of GOP delegates which are labeled discretely as Groups 1, 2, 3, and 4.

Group 1:

State rules where the candidate picks the delegates and the voters or caucus-goers elect said person by name. Group 1 should be a large group but it comprises less than 30% of the total number of delegates. States that clearly follow this procedure are Alabama, California, Florida, Illinois, New Hampshire, New York, Ohio, Rhode Island, and West Virginia, as well as a number of the territories that send delegates to the Convention. In this category of delegates chosen to date, Dr. Paul has 7, Governor Romney 276, Speaker Gingrich 13, Senator Santorum 61, and 2 Uncommitted.

These delegates who were elected as committed delegates are by definition the most unlikely to stray, but after being released, are free agents. In the case of Gov. Romney, the delegates are long time party or public officials or financial backers who are chosen to be delegates as a reward.

Group 2:

State rules allocate delegates to a candidate, however the delegates are not chosen by said candidate but instead are chosen via a discreet proceeding. This is where Gov. Romney is having nightmares. Under Rule 38, these delegates are in theory his but nothing legally prevents them from "going rogue", or aligning with the candidate of their choice. This group makes up around 25% of the delegates.

As The Green Papers has noted, “the Paulites have taken on the Republican presidential nomination process at its weakest point: the seating of persons as delegates only after said delegate slots have already been assigned (that is: bound/pledged) to presidential contenders and doing so by gaining a major voice, if not outright control, of many a local and State Republican Convention.”

These RNC delegates are not bound even as a matter of state law to support Romney’s VP choice, or support Romney's wishes on procedural and other votes on the floor of the Convention. The Paul effect may be in display over the next week or so in both Michigan and Oklahoma. It will be interesting to see the outcome as Senator Rick Santorum won 14 delegates in Michigan, while Speaker Newt Gingrich and Sen. Santorum won a combined delegates in Oklahoma. =

The Romney forces are trying to fight back. We saw yesterday in Oklahoma the total lack of Gov. Romney grassroots support with the resultant chaos. Gov. Romney only got 26% of the vote in Oklahoma and as such he had to rely on Sen. Santorum supporters to stop a Dr. Paul takeover – guaranteeing there will now be a credentials fight. A Sen. Santorum organizer in Oklahoma sent out an email attacking Dr. Paul and his followers. The individual claimed that the Paulites, with minimal support, were trying to take over the state party.

Oklahoma delegates are “bound”, meaning that they are required to vote, on all ballots, for a particular nominee, with the exception of the Chairman of the Party, the National Committeeman or the National Committeewoman, who are “unbound”.

Of the 40 bound delegates to the Republican National Convention, 15 were chosen three per congressional district. At least nine of those delegates are Dr. Paul supporters, as well as all alternates in those specific congressional districts. The rest are murky. Twenty-five additional at-large delegates are allocated to the presidential contender receiving the greatest number of votes in the statewide primary. If one candidate receives more than 50% of the vote, that candidate sweeps all the at-large delegates. Otherwise, delegates are proportionally allocated to all candidates receiving more than 15% of the vote.

At the Oklahoma State Party Convention, the state Republicans – including the Governor – forced through a slate of Romney supporters, inadvertently creating a viral internet reaction. As it happened, a slate of Romney supporters was submitted by the State Party. The Chair immediately took a quick motion and second to adjourn the convention. Despite a voice vote where the nays were clearly over-powering, he adjourned the convention among yelling and shouting and told the delegates they could finish their convention in the parking lot. They did just that, resulting in a pizza delivery bomb that itself resulted in a Ron Paul Money Bomb.

The end result of the Oklahoma State Party Convention was a single GOP-formulated slate adopted with no roll call vote, as required by Oklahoma State Republican party rules. The Paul Campaign can now argue that the entire Oklahoma at-large delegate slate is invalid.

The assumption is that when the Sen. Santorum’s and Speaker Gingrich’s 27 total delegates are released, they are free agents and will vote for Gov. Romney. Given that supporters of Ron Paul won all delegates and alternates in three of Oklahoma’s five congressional districts, and a number of alternates in the other two - the Dr. Paul delegates who are now bound Sen. Santorum delegates can get a credentials challenge.

Similarly, in Arizona – and arguably in response to antics in Oklahoma - the Paulites did not manage to take over the State Convention, held at a private Christian School in Phoenix, but they did elect some congressional delegates. The Dr. Paul supporters also made Gov. Romney’s son’s life miserable by booing him off the stage Saturday at the Arizona Republican Party Convention as he sought to solidify support for his father's nomination by seeking an endorsement of his father. There are differing accounts of what happened.

Group 3:

Elected uncommitted delegates. These delegates are elected by name as uncommitted delegates. The entire Pennsylvania delegation fits into this category and there are a small number of Group 3 delegates from several states – the most recent being two from West Virginia. These delegates were elected expressly to make a value and conscience decision. There are 3 of these delegates from each GOP entity allowed to the Convention. There are clearly Dr. Paul delegates in the Pennsylvania delegation.

Group 4:

This group consists of delegates chosen in the Iowa-style process where the first round is considered a "beauty contest" and the second round is when is the actual selection of delegates occurs at local district meetings. This in turn results in delegate selection at the National Convention. This last group is actually quite substantial and depending on one’s view it includes at least 25% of the delegates. Group 4 delegates are where Dr. Paul is cleaning up. His campaign apparatus is also in several of these states as part of the state convention process turning the “uncommitted” delegates, or would-be Gov. Romney supporters and replacing them with Dr. Paul supporters.

Put in this light, there are four discrete blocs or groupings of GOP delegates. The Paul Campaign is aiming at: (i) Sen. Santorum and Speaker Gingrich delegates in all the Groups, (ii) Group 2, and (iii) Group 4.

The Paulites will control Group 4.

As of this date, there is no clarity on how many hard delegates [Group 1] that Governor Romney has. Over the next several weeks a number of states will have binding/pledging primaries and it is unclear how many of these states are in Group 1 vs. Group 2, 3 or 4.

Also, there is the status of the Speaker Gingrich and Sen. Santorum delegates. Both have suspended their campaigns. That means they have not yet released their own delegates – if they know who they are to begin with. Given that the Gingrich and Santorum Campaigns have folded and never had the organizational control the Romney or Paul Campaigns had to have the ability to even communicate with these people is nil. Senator Santorum said as much on CNN.

Legal Threats Towards Ron Paul "Vote of Conscience" Delegates

Trying to discipline delegates is a core violation of the First Amendment. In fact, Rule 38 is an RNC version of the Speech and Debate Clause.

What the Romney campaign is trying to do is get state or local prosecutions or removal proceedings. A state action to punish Dr. Paul supporters for utilizing or attempting to utilize Rule 38 that would fail on First Amendment grounds. At least in California, any District Attorney who on some theory commenced such a prosecution would no doubt be immediately recalled.

In fact, the issue has already been litigated. In Democratic Party of United States v. Wisconsin, the Court addressed this very issue. For background, previous DNC rules provided that only those who are willing to affiliate publicly with the Democratic Party may participate in the process of selecting delegates to the Party's National Convention.

Wisconsin election laws allow voters to participate in its Democratic Presidential Candidate Preference Primary without regard to party affiliation and without requiring a public declaration of party preference. While Wisconsin's open Presidential preference primary does not itself violate the National Party's rules, the State's mandate that primary results shall determine the allocation of votes cast by the State's delegates at the National Convention does.

When the National Party indicated that Wisconsin delegates would not be seated at the 1980 National Convention because the Wisconsin delegate selection system violated the National Party's rules, an action was brought in the Wisconsin Supreme Court on behalf of the State, seeking a declaration that such system was constitutional as applied to appellants (the National Party and Democratic National Committee) and that they could not lawfully refuse to seat the Wisconsin delegation.

Concluding that the State had not impermissibly impaired the National Party's freedom of political association protected by the First and Fourteenth Amendments, the Wisconsin Supreme Court held that the State's delegate selection system was constitutional and binding upon appellants and that they could not refuse to seat delegates chosen in accordance with Wisconsin law.

The United States Supreme Court reversed and held Wisconsin cannot constitutionally compel the National Party to seat a delegation chosen in a way that violates the Party's rules. It held that the National Party and its adherents enjoy a constitutionally protected right of political association under the First Amendment, and this freedom to gather in association for the purpose of advancing shared beliefs is protected by the Fourteenth Amendment from infringement by any State, and necessarily presupposes the freedom to identify the people who constitute the association and to limit the association to those people only.

The court held that the Wisconsin laws unconstitutionally infringed on the Democrats' freedom of association, and Wisconsin did not show a compelling state interest in such infringement. The Court rejected Wisconsin's asserted compelling interests in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters, go to the conduct of the open Presidential preference primary, not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates. Therefore, such asserted interests do not justify the State's substantial intrusion into the associational freedom of members of the Democratic National Party.

This has been reiterated in any number of cases. As an example, in Heitmanis v. Amis the United States Court of Appeals for the Sixth Circuit declared invalid Michigan state statutes on delegate selections that conflicted with party rules in that it conflicted with the right of political parties to choose delegates, and burdened the right of the state party and its members to freedom of association.

And, if the state Republican Parties tried to use state laws to impose legal sanctions would under Smith v. Allwright raise the issue of whether the State in effect could be entangled in a private organization’s disciplinary conduct which if done by the State would be invalid. Given the precedent, any such efforts are a non starter.

Moreover, the threat of State Party discipline is a sham. In many of these states, the state Republican party is now controlled by Paulites. As such, any inkling of the use of state sanctions to enforce the binding rules notwithstanding Rule 38 will spark chaos.

Tampa is a long-long ways off.

Gov. Romney needs to do four things immediately:

First, he needs to let the process work out by focusing on getting his people elected as his delegates, if he can. The reason he is in this situation in the first place is he has such tepid support. He simply cannot seem to seal the deal. While this is something the Independent Voter Network has noted continuously, IVN is not alone in making this observation.

In fact, the Oklahoma situation showed Gov. Romney in effect is empowering Speaker Gingrich and Sen. Santorum because he has to rely on them in order to secure delegates in the South and elsewhere. Undoubtedly, they have their own action items and it reinforces how weak Romney is as a nominee. It will be interesting to see after today, both the Republican reaction and Dr. Paul supporters reaction going forward.

Second, he should follow Speaker Gingrich’s advice and be extremely attentive to Dr. Paul and his followers. Dr. Paul has promised “no drama” but Dr. Paul’s delegates in most cases are not long time political people. The generals of the campaign are, but not the troops, which raises questions about his whip operation. Also, Dr. Paul is leaving Congress in any event so this is more about the movement than the man. Nothing in today's announcement refutes this fact.

Third, he needs to leash Ben Ginsburg, and others, so that they do not anger state party officials. At least half of those state parties are now controlled by the Paulites.

Lastly, Gov. Romney needs to scrupulously follow Republican National Committee rules. In that regard, there are now blog postings indicating Dr. Paul supporters are upset over RNC Chair Reince Priebus' own violation of RNC Rule 11 by coordinating with the Romney campaign prior to Gov. Romney being nominated in Tampa. While the official Paul Campaign put out a statement indicating that they did not view Rule 11 being violated, the activists see it differently. The actual Dr. Paul delegates may use this rule as an additional point of leverage.

The way to avoid these issues going forward is for every state to elect delegates in fair and open primaries found in Group 1 procedures.

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