Reports of Ron Paul's demise have been greatly exaggerated. While a Monday email sent to reporters regarding Ron Paul's election strategy has been widely interpreted and spun as the Texas congressman's withdrawal from the Republican primary-- with The Drudge Report running the misleading headline "Paul Out," and Fox News Channel's Shep Smith misreporting that Ron Paul is now "out of the race" --the email simply formalized and publicized the Paul campaign's "guerrilla" delegate strategy of focusing on acquiring delegates instead of making a bid for the popular preference vote in primary states.
If anything, the email signaled that the Paul campaign is more serious than ever about actually winning the Republican Party's presidential nomination, especially as it comes on the heels of a month-long string of major delegate victories that have bolstered the Ron Paul campaign's hopes of a brokered convention in Tampa and demonstrated the potential viability of its delegate-focused strategy. After seeing marked results from this strategy, an announcement that the campaign will be pursuing it even more single-mindedly can hardly be interpreted as a retreat.
Last month at IVN, I outlined this strategy:
If the trend continues, and a well-funded, highly-organized, and very energetic Ron Paul campaign continues to sweep up delegates (with a majority of the party’s delegates still up for grabs in large states like California) there is a real and growing possibility that Mitt Romney will not secure enough delegates to win his party’s nomination on the first ballot at the Republican Party convention in Tampa. If this happens, the convention will become a brokered convention and all bound delegates will be “unbound,” allowed to change votes for whichever candidate they choose. Although it is impossible to determine the actual number without official counts, Paul’s campaign seems quietly self-assured that at this point, many of Mitt Romney’s bound delegates will vote for Ron Paul and hand him the nomination, not because Paul thinks he can charm and persuade them in Tampa, but because the Paul campaign has already stacked each state’s slate of delegates with his own supporters, who have been stealthily getting elected as delegates. There’s no telling how many of Mitt Romney’s currently bound delegates are actually covert Ron Paul supporters ready to turn on a dime after being unbound in a brokered convention and vote for Ron Paul.
Since then, Ron Paul supporters and a few good investigative journalists have been digging deeper into the RNC's rules for its nominating process on the floor of the national convention in Tampa. What they've unearthed is the possibility that Ron Paul doesn't even need a brokered convention to win the nomination. His covert supporters mentioned in the excerpt above-- those who will attend the convention as bound Romney delegates, but who are actually Ron Paul supporters hoping to get past a first ballot-- may not be bound to vote for Mitt Romney on the first ballot after all. It's all in the RNC's Rule 38, which says:
"No delegate or alternate delegate shall be bound by any attempt of any state or Congressional district to impose the unit rule."
According to Fox19 Cincinnati's Ben Swann, citing an article at FairVote.org, Rule 38 has already been interpreted by the RNC's own legal council to mean that the national party rules do not recognize state laws or procedures that bind delegates to vote for a particular candidate, but that they are free to vote for their individual preference on the floor of the national convention. The issue came up in 2008 when a member of the Utah delegation wanted to vote for Mitt Romney instead of John McCain, to whom Utah's delegates were bound. Several weeks before the 2008 Republican national convention, Jennifer Sheehan, Legal Council for the RNC, wrote a letter to Nancy Lord, Utah National Committee-Woman, asserting:
"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, and the national convention allows delegates to vote for the individual of their choice, regardless of whether the person's name is officially placed into nomination or not."
If this is the case, and again, this is the RNC's own interpretation of its own rule, with an established and recent precedent (that ironically happened to benefit Mitt Romney in 2008), then Ron Paul may not need to last until the second ballot of a long-shot brokered convention to let loose his stealth delegates. Though their states may have bound them to Romney, once they're on the convention floor in Tampa, it will be the RNC's rules that matter and if Paul's hand is strong enough he could just win his party's nomination on the first ballot.
Another RNC rule that seems to indicate the primacy of the individual delegate's preference at the nominating convention is Rule 37, Section (b), which states:
"In the balloting, the vote of each state shall be announced by the chairman of such state’s delegation, or his or her designee; and in case the vote of any state shall be divided, the chairman shall announce the number of votes for each candidate, or for or against any proposition; but if exception is taken by any delegate from that state to the correctness of such announcement by the chairman of that delegation, the chairman of the convention shall direct the roll of members of such delegation to be called, and the result shall be recorded in accordance with the vote of the several delegates in such delegation."
The final say here seems to be with the will of the individual delegate on the floor, not with the delegate's state, nor even with the chairman of the state's delegation to the convention.
If Ron Paul's supporters outnumber the other delegates in Tampa, he seems to have the parliamentary grounds for a first ballot upset and a primary victory-- no brokered convention necessary. If it comes to this, the Romney camp will, no doubt, challenge the convention result. It's a fight that could end up in the courts. Legally, which would take precedent over the other, the RNC's rules or state laws that bind delegates to vote for certain candidates on the first ballot of the convention?
As IVN's Kymberly Bays recently reported, this exact question has already been resolved at the US Supreme Court level: the national party's rules take precedence over state laws because as a private organization and free association of individuals, a political party has the constitutional right to set its own rules and state laws interfering with that private process violate a political party's First Amendment rights.
The Monday email is no mystery then-- if Ron Paul could win his party's nomination simply by having enough of his energetic supporters become delegates from their state, why would he spend millions of dollars on radio and television ad purchases to win what amounts to an inconsequential straw poll?