Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.
by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016
Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.
Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.
Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.
It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.
State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech.
Such infringements can be upheld only if they are narrowly tailored to advance a compelling government interest. Yet states have no valid interest, much less a compelling one, in binding delegates. As the Supreme Court recognized in Cousins v. Wigoda (1975): “The States themselves have no constitutionally mandated role in the great task of the . . . selection of Presidential and Vice-Presidential candidates.”
Those laws also chafe against the vertical separation of powers governing the federal-state relationship. The Framers carefully divided authority over elections for the presidency, which is the only truly national office, between the federal government and the states. They established an electoral college and, under Article II of the Constitution, gave state legislatures the power to determine how electors are selected. As the Supreme Court held in Ray v. Blair (1952), states can require electors to pledge support for their party’s candidates.
But nothing gives states authority to meddle in a party’s nominating process. The Supreme Court in Democratic Party v. Wisconsin ex rel. LaFollette (1980) explicitly rejected Wisconsin’s argument that its constitutional power over electors allowed it to regulate the selection of delegates to national party conventions. Any connection between the two processes, the majority held, “is so remote and tenuous as to be wholly without constitutional significance.”
State party rules that bind delegates are also legally irrelevant. The national party is its own organization, with the right to decide how voting at the convention is conducted. The example of 1976 aside, the GOP has long recognized delegates’ independence to vote as they see fit. As the president of the 1876 convention declared, following a contentious debate on that very issue: “it is the right of every individual member thereof to vote his individual sentiments.”
That Republican delegates retain the power to make their own decisions does not disenfranchise primary voters any more than the Democrats’ designation of hundreds of party insiders as “superdelegates” does. Primary elections are “preference contests” that indicate the sentiments of the grass-roots and may (or may not) lead to the election of delegates who may (or may not) support a given candidate at the convention. The ultimate power to choose a nominee has always resided in the party itself.
This is less about Mr. Trump than restoring the parties’ proper place in our democratic system. As the political scientist E.E. Schattschneider wrote in “Party Government,” his 1942 book: “Democracy is not found in the parties, but between the parties.” Treating parties like mini-democracies reduces choice in the general election by crowding out the features that give each party its unique identity. Having states regulate parties would impermissibly enhance the government’s control over the exercise of core political rights.
Mr. Trump should welcome an open convention, with delegates unbound. It would give him the opportunity to build consensus and unify the party, which would make him a stronger candidate for November. Changing the rules to ensure his coronation would be a sign of weakness. A candidate who cannot win the support of a majority of Republican delegates voting their consciences does not deserve to be the nominee and certainly has no legal right to be.
If the Grand Old Party stands for nothing more than anointing the candidate with the most “bound” delegates, then it stands for nothing. Free the delegates and let Republicans be Republicans.
Mr. O’Keefe is on the boards of the Citizens in Charge Foundation and Wisconsin Club for Growth. Mr. Rivkin, a constitutional litigator, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.