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RNC Rule 40 may create an absurd undemocratic result, and should be changed

RNC Rule 40 may create an absurd undemocratic result, and should be changed

Poorly drafted Rule could place in nomination only a candidate without a majority of delegates, creating a convention deadlock or worse.

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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Agreed, Jonathan. Well written and argued.

    William A. Jacobson in reply to Ragspierre. | March 8, 2016 at 12:19 pm

    Unfortunately, some people will not understand that Trump being the only candidate whose name is put in nomination does not mean he is the nominee — it means there is no nominee — unless he also has a majority of delegates.

Tl;dr for this article:

The republicans put in a rule that requires their nominee to win 8 states.

Kasich and possibly Rubio are probably not going to win 8 states.

Therefore the GOPe have to decide between Cruz and Trump, or throw out their own rules, which will enrage Cruz and Trump supporters.


Analysis is pretty silly …

First, there are a number of winner take all states that would need to be in play for a challenger to Trump to keep Trump from hitting the threshold.

Second, Insiders created the rule to benefit themselves from insurgent candidates (eg, Cruz, Trump) and therefore will change the rules again to suit their needs. Lobbying to changeout the rule for insurgent benefit won’t happen.

It is not democratic, and will never be modified to reflect the will of the voters unless the voters happen to give their votes to the insider’s candidate.

If it is changed, look for the changes to provide a clue as to what the establishment wants.

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

    Did you read that before you said:

    “Analysis is pretty silly …”
    “It is not democratic, and will never be modified to reflect the will of the voters unless the voters happen to give their votes to the insider’s candidate.”

I agree with Princeton Al about this.

The Conservative Treehouse was on these shenanigans from the PTB long before Trump arrived. Somehow it seems to some of you conservatives everything was A-OK then.

NOW it’s a problem because the GOPe Splitter Strategy might fail?

No, it was a problem when the idiots were determined not to have to deal with the ‘riffraff’ conservative base or the libertarian faction. I’m just glad it might bite them in the ass.

P.S. Yes, the Democrats are even worse. Still doesn’t make this acceptable.

It does not matter what we say. The GOP Elite has the option of changing this rule before the convention. And, they are damn sure going to do it.

” 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. ”

I would just like to mention here that Sen. Ted Kennedy acted like he personally hated Jimmy Carter during Carter’s entire term in office. My impression was that he gave Carter more trouble than the Republicans did.

This should be a cautionary tale that the Republican Party at the national level might want to review. While I certainly agree that the Repubs should borrow freely from the Democratic playbook with respect to Supreme Court appointments, it would be most unwise for them to have a hissy over Donald Trump. They should not burn all of their bridges with any Republican potential nominee, and once a nominee is selected, they should wholeheartedly support that nominee, so that afterward, they can have some influence. Instead, they should recognize that a very significant minority (at least) of Americans from all over the political spectrum think that Donald Trump is saying things that need to be said.

In particular, Donald Trump is saying many of these things, because the Democrats in Congress shut out the Republicans from policymaking.

It may all turn out to be academic. T-rump seems to be fading.

We’ll see.

And they wonder why they have Trump as their front runner. They are as clueless as Pauline Kael wondering how Nixon got elected. Morons.

They had a chance to address the base of the party for decades and instead have sneered at them. Laughed behind their hands at the rubes who have been granting them votes as half of the axis of stupid and evil.

They should have took ‘option A’ and the TEA party folks instead of trying to undermine them at every opportunity. Now they are getting what they deserve good and hard. If they steal this election what do they think will happen? The half of the party that they’ve mocked and snubbed, lied to and betrayed for years will come back for a pat on the head? All’s forgiven?

More Rubios, more ¡Jeb!, more party coronations rather than elections.

teh party of 5t00pid is stupid.

and the GOPe doesn’t care if it wins elections, as long as they get to keep their personal access to power and prestige, and their noses in the trough.

The rule is designed to keep limited narrow appeal candidates off the ballot at convention. Only candidates that can demonstrate broad base of support in wide area of country can pass the 8 state test. Right now looks like Trump with Cruz possible but iffy.

Donald Trump is the presumptive nominee but I think tonight plus next debate plus March 15 will settle the matter once and for all.

I happen to think Trump should bail on these remaining debates and force Rubio and Cruz to show what they have got without him to tag team. However I don’t think he will do that.


I see the Cruz disinformation campaign is hard at work on their latest lies like they did to Carson in Iowa saying Rubio is dropping out.

Holds up the bible and then tells mega lies. That is the Cruz method.

    Ragspierre in reply to Gary Britt. | March 8, 2016 at 1:01 pm

    “I see the Cruz disinformation campaign is hard at work…”

    We all see you can’t go a day without lying.

    Just like your little yellow god.

    Which is just crazy when the facts are so easily ascertained.

      Your reply is NOT a denial of Cruz telling more LIES with his Rubio is dropping out email to people in Hawaii.

      Stop Trump PAC ‎@StopTrumpPAC

      Alert: The Cruz camp sent out an email citing a false CNN story that Rubio dropping out. Rubio is NOT dropping out!
      8:54 AM – 8 Mar 2016

        Ragspierre in reply to Gary Britt. | March 8, 2016 at 2:07 pm

        You mean the story that was…and STILL IS…all over the interwebs?

        That’s just another of your stupid lies, Gaghdad Bob.

        Anyone who’s stupid enough to believe an already-disavowed CNN hit piece saying that Rubio is dropping out pretty much deserves to lose their vote anyway.

        Good to know that telling lies and dirty tricks are not sins in the eyes of our local bible thumping cruzbots as long as they can argue the lies likely might not work effectively.

        Good to know that the cruzbots’ faith runs just as shallow as the dominionist Cruz.

        I guess I missed that lies are ok IF day at moody bible institute.

          CNN lies. It’s who they are. It’s what they do. Their immortal souls are their problem, not mine.

          Same as for Donald J. Trump.

          We aren’t talking about CNN. We are talking about Cruz using same lie technique against Rubio just like they did against Carson in Iowa.

          Ragspierre in reply to Gary Britt. | March 8, 2016 at 5:25 pm

          Except BOTH those are just YOUR lies, you stupid, lying SOS.

          Read John Nolte at TrumpBart, anyone who’s interested in the truth about the “Carson” episode.

          Britt will tell any lie, and his lil’ lie machine just hums and hums.

          He gives his man-crush hum jobs, see…???

    Gary Britt is “presumptive” just like his jaundiced-yellow god.

    Fox News now reporting that the CNN story about Rubio dropping out of race that was then used by CRUZ disinformation machine to send Carson like emails to voters in Hawaii saying Rubio dropping out


    Lying Ted Cruz. Bible in one hand and a mouth full of lies in the other.

    These lies and dirty tricks are a constant theme with Cruz and his ex-CIA disinformation chief and campaign manager.

    I wonder if Cruz will pretend to fire someone over this ??

    Sent these liar emails to voters in Hawaii hoping the press wouldn’t pick up on it in time to affect the mainland !! Lying Ted Cruz !!

      Anyone who’s a Rubio supporter would listen to Rubio on that one, and not CNN (and certainly not Cruz). And Rubio’s been all over the place since yesterday letting his supporters know that that CNN hit piece was just that — a CNN hit piece. He was even fundraising off it last night.

      Honestly. If CNN reported that Trump was dropping out, but Trump was all over the place reassuring his supporters that he wasn’t, would you believe CNN over Trump himself? I know you think Rubio supporters are stupid, but I doubt they’re that stupid.

      Your yellow “Presbyterian” pyramid scheming god is on Twitter daily, thumping out all kinds of whoppers…to win friends and influence people – for the Great Con of 2016.

      HandyGandy in reply to Gary Britt. | March 8, 2016 at 3:09 pm

      Jeff Roe stikes again.

      Of course Ted Cruz knew what jeff Roe was before he hired him.
      So he must be happy with this.

    MarlaHughes in reply to Gary Britt. | March 8, 2016 at 4:23 pm

    I agree with Rule 40. If a candidate can’t get majority support in 8 states out of 50 (not including the territories) then how can they manage the GOP or the nation?
    Besides, all Rule 40 does is kick it into a brokered convention which is how elections used to be determined.
    We’re such mobs we end up supporting candidates like Donald Trump if we don’t have cooler heads making us wait and pay attention first.

      rabidfox in reply to MarlaHughes. | March 8, 2016 at 6:46 pm

      Ah yes. We poor knuckle dragging, mouth breathing, neanderthals need to have our social ‘betters’ (spit) guide us gently so that they can continue to feed at the trough while we work to pay ever increasing taxes to support them in their increasing levels of luxury.

Oh and to Levin and tge rest of the cruzbots… wah wah wah little babies.

Rules are rules and now you want to cheat because your boy can’t win.

buckeyeminuteman | March 8, 2016 at 1:04 pm

Cruz is the GOPe’s guilty conscience and Trump will upend their little power scheme with the Democrats. There’s no way they want either of them. We’re up a creek without a paddle.

Establishment wants to can Rule 40 because it blocks dropping in a Romney/Ryan “Unity Ticket” at the last minute.

All this fancy, flowery talk about democracy is just more BS from the GOPe.

At this point, pushing Trump out of the RNC nomination may compel him to run as an independent, and hand the presidency to Hillary on a silver platter.

I feel like we’re in trouble either way.

Does anybody actually think that the GOP cares about the “will of the people”. Please raise your hands…

Subotai Bahadur | March 8, 2016 at 10:20 pm

The purpose of Rule 40b being changed was to prevent any challenge to the GOPe designated candidate. It is working against the GOPe, so they want to change it after the process is over and make it retroactive [the primaries will be over, having been run according to the current set of rules]. Under the old rules [getting the most, even if it is only a plurality in 5 states in order to be placed in nomination], a number of those who dropped out might well have decided to stay in. Which would have affected the later contests.

One of the definitions of the legitimacy of a process is if the rules are the same for everyone, and not changed ex post facto. Certainly, they have the power to change the rules after the fact. But it makes the whole concept of primaries pointless. It would be easier, cheaper, and more effective to either bribe or threaten harm to the powers-that-be in the party.

They may be able to bend the rules to get whoever they want nominated. The problem then, assuming anything approaching honest elections, is getting them elected. And if the elections are blatantly dishonest; then we return to bribery or credible threats of harm as the determinants of our politics.

In the end, harm is cheaper and more effective than bribes, since politicians do not stay bribed.

Oh, Brave New World. . . .

Lots of winner takes all states left on the calendar. Most likely this will be a non-issue. In order for Cruz to prevent Trump getting a clear majority of the delegates, he’ll have had to win several of the winner takes all states.

holdingmynose | March 9, 2016 at 6:10 am

The ROP poobahs will wait to see how many (or few?) delegate Chico gets before crafting a new rule that lets him be nominated at the convention. The reason for the rules changes was always to facilitate the chosen candidate of the poobahs. Unfortunately for them the pesky plebs haven’t voted for their first and then second choices. Ths ROP rules process reminds me of Calvinball.

Sammy Finkelman | March 9, 2016 at 3:25 pm

all that Rule 40 does is prevent anominating speech from being ade. Delegates can vote for anyone (and must vote in many cases for someone in particular, unless they have been released)

Sammy Finkelman | March 9, 2016 at 3:26 pm

Take 2:

All that Rule 40 does is prevent a nominating speech from being made. It doesn’t prevent anyone from voting for someone. Delegates can vote for anyone (and must vote in many cases for someone in particular, unless they have been released.)