The Rules Of The Republican Party deal with the organization and operation of the Republican Party, including everything from apportioning delegates to the national convention, to how to change the rules themselves.

What if I told you that the RNC had a rule that under some circumstances could result in no candidate’s name being placed in nomination so that the Republicans had no nominee; or create a convention deadlock because the only candidate whose name could be placed in nomination could not be nominated because he didn’t have a majority of delegates as is required under another rule; or in another scenario only one candidate who didn’t even have a majority of delegates would claim the nomination over the objection of the majority of delegates.

If you didn’t know the names of the candidates or which scenario played out, you’d say “that’s absurd, change the rule.”

That latter scenario may very well play out, and hand Donald Trump the nomination (in the view of his supporters) even if he didn’t have a majority of delegates, and even if most delegates didn’t want him to be the nominee.

It’s all because of Rule 40(b).  Which is why if the RNC has any sense, it will change the rule as soon as possible to avoid an absurd and the undemocratic (small “d”) result.

What’s The Issue?

Rule No. 40 of The Rules Of The Republican Party provides, in relevant part:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8)  or more states, severally, prior to the presentation of the name of that candidate for nomination.

What if no candidate gained the majority of delegates from enough states?  Remember, when there are many candidates, candidates often “win” states with 30-35% of the popular vote, and receive a commensurate, non-majority number of delegates.  In that case, no candidate wins a majority of the delegates in that state.

If several candidates stay in the race throughout, they could each “win” states and none of the candidates reach the Rule 40(b) threshold.  Hence, no candidate’s name could be placed in nomination. Whoever drafted this obviously didn’t think of a worst case scenario.

This year, we may come close to another absurdity created by Rule 40.  It may be that Donald Trump, even if he never gets anywhere near a majority of delegates through the popular vote, could be the only nominee to pass the Rule 40(b) threshold.

Trump has already won the majority of delegates in six states (South Carolina, Alabama, Georgia, Massachusetts, Louisiana and Tennessee) and should reach eight easily, Cruz has won the majority in three (Texas, Kansas and Maine) and Rubio one (Puerto Rico; it along with American Samoa, D.C., Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands count).

Assuming Trump gets the majority in an eighth state and reaches 1237 delegates, he gets the nomination, in theory. But this would conflict with Rule 40(d), which provides that a candidate receives the nomination if receiving “a majority of the votes entitled to be cast in the convention.”  That number varies each election due to the Rules’ method for allocating delegates, but this year the magic number is 1237.

If Trump does not get to 1237, it gets interesting.  Trump’s supporters argue that if he is the only candidate who has won the majority of delegates in eight states, he is the only one eligible for the nomination and should win by default – even if he doesn’t reach 1237.  Rule 40(b) could thus thwart the requirement that the nominee gain a majority of the delegates.

So the 8-state requirement of Rule 40(b) could be in conflict with the majority of delegates provision in Rule 40(d) in some circumstances, including one that might occur this year.

How Did This Happen?

Commentators have been writing about the potential chaos from Rule 40 for more than a year.

Allahpundit at Hot Air wrote in January 2015 that Rule 40(b) was installed at the 2012 Republican National Convention to prevent an insurgent (Ron Paul) from disrupting an incumbent (Mitt Romney).  (Allahpundit’s analysis is great and fascinating not least because it never even mentions Trump, but rather contemplates Jeb Bush, Scott Walker, Ted Cruz, and Rand Paul splintering the vote).  The concern was that Romney would win the 2012 election, but Paul would challenge him in 2016 and win enough support to disrupt his reelection campaign and transform his pro-forma re-nomination into an ugly spat.

The RNC recognized that primarying incumbents is very damaging.  The last time an incumbent was challenged in his reelection bid, Ted Kenney sealed Jimmy Carter’s fate.  Carter had plenty of problems and faced serious headwinds anyway, but in 1980 Kennedy won more than a third of the delegates, and five out of eight states on the last day of primary voting.  Even at the convention, Kennedy tried to siphon delegates away from Carter.

Once he finally lost, speaking on the convention’s main stage and with the legitimacy conferred by his just being on the ballot, Kennedy endorsed Carter halfheartedly.  Carter suffered an historic blowout.

As such, Rule 40 was installed to prevent a minor but tenacious insurgent from even getting on the convention ballot to interfere with a candidate who has received overwhelming support.

In this primary season, when there is neither an incumbent nor any suggestion of consensus, applying Rule 40 would do the opposite.  Rule 40 would hand the nomination to a candidate (Trump) even though the majority of voters and delegates are against him, just because he is the only one who won majorities in eight states.  That is the argument of his supporters, but in fact under the Rules it could result in a deadlock. Instead of preventing a spoiling attack against a clear favorite, it would anoint a candidate despite there being no particular favorite at all.

What to do, and not to do

The worst outcome would be for an unintended consequence of a poorly written Rule (40(b) to thwart the will of the majority as required under Rule 40(d), or result in no nominee.  That would fracture the party and would be a less “fair” result than opening the nomination process up to all candidates who have crossed some more minor threshold.

The RNC Rules are subject to change as they are merely rules of an organization, not law. Rule 40 should be changed to prevent an undemocratic, unintended absurdity.  Jeff Berkowitz wrote at Medium:

There are several opportunities to change Rule 40 before the convention begins the nomination process. The RNC will hold its spring meeting on April 20–22 and could modify the rules then. The rules committee will also meet on the eve of convention and could modify the rules then as well. Once the convention is underway, its first order of business will be to approve the rules, which affords delegates the opportunity to seek to amend them. And lastly, it may be considered in order for delegates to move to suspend the rules during the nomination process to allow Cruz, Rubio or another candidate who fell short of the Rule 40 threshold to be placed into consideration and receive votes on the floor from the delegates they won in primaries and caucuses.

Under the current circumstances, changing the rules is appropriate, and the sooner the better.  Whatever legitimate stink Trump might raise, and whatever damage it would do to the party’s cohesion (if there is any left to damage) would pale beside the uproar against nominating a candidate on a technicality that precludes debate, or results in no nominee.

In addition, the RNC would just be changing the rule back to what it had been for decades prior to 2012.  The prior Rule 40(b) provided:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a plurality of the delegates from each of five (5) or more states, severally, prior to the presentation of the name of that candidate for nomination.

If Rule 40(b) were changed back to requiring a mere plurality of delegates from five states, Cruz would already pass the threshold: he has won pluralities or better in six states (Iowa, Alaska, Oklahoma, Texas, Kansas and Maine).  Rubio has won pluralities in two – Minnesota and Puerto Rico – and would remain viable to at least get on the convention ballot.  As Allahpundit’s source put it, that’s a “[b]ig, big difference.”

So the rationale for the new Rule 40(b) is totally inapplicable and its outcome is absurd, while reinstating the old Rule 40(b) would be bring about results that accord more or less perfectly with what voters want.  This is not a difficult question.

Which is why the RNC should change the rule as soon as the rules themselves allow, weather the storm, and come out the other side with clarity in the process long before the convention begins.

Choose the will of the majority.  That is what this process is supposed to be about.


(Professor Jacobson contributed to the drafting of this post.)


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