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Can Trump’s opponents manipulate the convention rules and defeat him? Here’s the problem.

- July 14, 2016

With the 2016 Republican National Convention coming next week, attention has focused on the Convention Committee on Rules, which began meeting last night. This committee sets the rules that govern how the convention will proceed, and its decision will affect the crucial question heading into Cleveland: Could the convention rules be altered in a way that could threaten the nomination of Donald Trump?

Needless to say, the “Never Trump” forces hope the answer is “yes.” But their wish isn’t likely to be granted. Here’s why.

Why is Trump even facing the possibility of a convention revolt?

After the 1972 election, presidential primaries became the main way in which delegate slots were allocated to candidates. In the first election after that change (1976), no candidate had a majority of delegates heading into the convention. In every election since, one candidate always won enough delegates during primary season to force his competition from the race before the convention. This was true for Donald Trump as well.

But the difference for Trump compared to his predecessors is that his opponents bowed out later in the primary process. Because of this, many of the individual delegates — the actual people who fill the delegate slots — had already been selected before Trump became the presumptive nominee. Some of these delegates may be fiercely loyal to another candidate and/or categorically opposed to Trump.

In other years, by contrast, the nomination was settled before many individual delegates were chosen. Any delegate slots won by other candidates were then released and then filled by those loyal to the presumptive nominee or by state party regulars who were typically willing to vote for the presumptive nominee.

So Trump confronts a sizable though minority faction of delegates who oppose his nomination. Moreover, Trump’s opponents for the nomination have yet to release their delegates as has been the case for the majority of candidates in every cycle since 1976.

What does this mean for how the delegates can vote at the convention?

In 2016, unlike 1980-2012, there is a real debate over whether delegates are required to vote for (or “bound to”) the candidate who won their state. And this brings us to the decision that the Committee on Rules must make.

One argument is that the delegates are actually already unbound. Based on this argument, it’s not necessary even to adjust the rules to allow delegates to vote their true preference — what is sometimes called a “conscience clause.”

This argument isn’t persuasive, however. It’s based on taking some sections of the RNC rule book out of context, combined with some cherry-picking of the history of the process.

The cornerstone of “the delegates are unbound” argument is Rule 37(b). The rule, which originated in 1880, doesn’t explicitly say that delegate are not bound and can vote how they want. But according to proponents of the unbound theory — primarily North Dakota national committeeman Curly Haugland — the rule was originally intended to let the delegates vote how they wanted.

There’s one problem, however: We’re not in the 19th century. Because the entire nominating process has changed to make primaries the means of allocating national convention delegates to the candidates, advocating for a 19th-century interpretation is a version of originalism. And originalist interpretations often fail to persuade when times have changed. Like it or not, the parties have elevated the role of primaries, and that cannot be wished away.

What does Rule 37(b) really mean?

Under Rule 37(b) delegates can take exception to or question the state delegation chair’s tally of the delegation vote during the presidential nomination roll call. In other words, a delegate from Texas could question whether the Texas delegation’s chair is counting all the Texas delegates’ votes correctly.

But what does “correct” mean? This is defined primarily in a different rule — Rule 16. That rule defines how state parties can select, allocate and bind delegates. In practice, this affects how state parties set the rules for primary elections — when the primary is held, how delegates are allocated and selected based on the primary’s outcome, and how delegates are bound and under which conditions.

Rule 16 makes it hard for delegates to ignore those rules and vote for a candidate other than the one they are “bound” to. The rule gives the secretary of the convention the power to record votes as bound under state party rule. If a delegate attempts to break from how they are bound and vote for another candidate, then that vote is ignored and recorded as bound.

In other words, Rule 16 transforms if not negates the original intent of Rule 37(b). It lays out the process for how delegate votes are to be correctly counted during the roll call vote and now has a protection against rogue delegates.

But couldn’t the Committee on Rules change Rule 16?

Yes, it could. Conventions set their own rules. Rules 1-25 expire when the convention begins, and Rules 26-42 govern the initial part of the convention until a rules package is adopted on the floor to guide the remainder of the process. That leaves an opening for the alteration of Rule 16.

But while the convention rules can be changed, they tend to heavily borrow from the past. The Republican Party’s delegate selection rules have typically changed in small increments. They are not written from scratch every four years.

In fact, usually rules changes at the convention only affect the next convention, not the current one. There are exceptions, but they are few. Rules changes are usually intended to fix the perceived problems of the just completed primary process. Those fixes then apply in four years’ time.

What should you be watching for?

The process of considering the rules will take place in two main forums over the next two weeks. First, the Convention Committee on Rules will convene in Cleveland this Thursday and Friday. The 112-member committee will make recommendations for rules changes that will then go before the full convention for consideration and a likely up or down voice vote during convention week. Most of the action will likely take place in the Rules Committee.

There are obviously those who want to codify a clause that would “unbind” delegates, but there are also those who believe the process and rules should not be changed midstream. Still others will be focused more on the rules for 2020. These are the factions to keep track of.

Most likely Trump opponents will not win the support of a majority of the committee. The question then is whether Trump opponents can find support of at least 28 delegates on the Rules Committee to force a minority report — an alternative to the committee’s recommended changes — to the floor for consideration.

Whether the delegates will be “unbound” depends on whether something resembling the current Rule 16 making it into the rules package that the convention will be presented and is then voted up. If the current Rule 16 remains largely intact, then the protections are there in the rules to keep the delegates bound. If, however, Rule 16 is altered in any fundamental way — most likely in the form of a conscience clause — then the delegates are likely to be unbound.

In that unlikely event, we may be in for a real ride.

Josh Putnam is a Lecturer in the Department of Political Science at the University of Georgia and the author of the Frontloading HQ blog