Huston: Rule 40, a Living Document?

April 2, 2016

by Tom Charles Huston

There has been a great deal of discussion among Republicans about Rule 40 of the temporary rules for the 2016 convention. Adopted in 2012 at the behest of the Romney people to keep the Ron Paul delegates from placing his name before the convention, paragraph (b) of Rule 40 provides that a candidate may not be placed in nomination without demonstrating support from a majority of delegates in eight delegations. At the present time, only Donald Trump has such support. Ted Cruz will likely meet this threshold prior to the convention while Governor Kasich most likely will not.

On Hugh Hewett’s radio show this week, Karl Rove claimed that Rule 40(b) only prevents a candidate from being formally nominated if he doesn’t have the requisite support in eight delegations; it does not prevent delegates from voting for whomever they want once the balloting commences. Under Rove’s reading, the convention can nominate a candidate whose name has not been formally placed before the convention, which opens the door to Romney, Ryan, Walker or anyone else who could command a majority vote of the delegates.

Rove is wrong, and the question is whether he is simply lyin’ or hasn’t read the rule carefully. The latter option is implausible.

Here is Rule 40(b) in its entirety:

(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. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business.

Note the last sentence. To qualify as a candidate for the nomination, evidence of the required delegation support must be submitted prior to “the placing of the names of candidates for nomination pursuant to this rule and the established order of business.” The only reasonable reading of this provision is that “a candidate for nomination” must satisfy the paragraph (b) requirement before the call of the states for nominations the timing of which is specified in the “order of business” of the convention agreed upon when the convention first convenes.

Paragraph (a) of Rule 40 requires a roll call of the states for the purpose of both making nominations and voting for candidates. Paragraph (d) specifies that “when at the close of a roll call” a candidate for the presidential nomination has received a majority of the eligible delegate votes, “the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule.” Clearly the only votes to be announced are those for candidates who have satisfied the requirements of paragraph (b); that is, have had their name presented for nomination prior to the first ballot after having satisfied the requirement for majority support in at least eight delegations.

What is Rove up to here? My guess is that he is quite deliberately laying the groundwork for a ruling by Paul Ryan as permanent chairman of the convention that Rule 40 does not mean what everyone understood it to mean in 2012. Such a ruling would have to survive a challenge, but Ryan might well be willing to brazenly ignore the objections from the floor that such a ruling would elicit from Trump and Cruz delegates.

The advantage of following this route to block Trump and Cruz from the nomination is that it avoids a fight over rewriting Rule 40 in the rules committee with a subsequent nasty public fight on the convention floor over adoption of the report of the committee. Trump and Cruz delegates will be united in opposition to any change to Rule 40, and the only way to effect such a written change in the face of this opposition would be to ram it through the convention on a voice vote with the chairman refusing to recognize a demand for a roll call vote.

For Karl Rove’s “new face” to come out of a contested convention an amendment to or a reinterpretation of Rule 40 will be required. It is possible that, notwithstanding the application of Rule 40 in accordance with the 2012 understanding of its effect, the convention could deadlock over the nomination. In such an event, the delegates could suspend the rules to open the race to a candidate who had not satisfied Rule 40. A motion to suspend the rules could not, however, muster the necessary votes unless either Trump or Cruz supported it. In that event, we would be in territory not seen by Republicans since 1880.

Of course, if Trump goes into the convention with at least 1,237 pledged votes for the first ballot, none of this worrying about the convention rules will have mattered in the least.

Tom Charles Huston, J.D., an adjunct scholar of the Indiana Policy Review and history buff residing in Indianapolis, is a former associate counsel to the president of the United States.


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