In my last essay, I made the moral case for why the delegates to the Republican convention in Cleveland should feel free to reject Donald Trump as the GOP nominee. Their function is not to reflexively obey the 45 percent of primary voters who supported Trump, sacrificing their best judgment for the sake of a plurality victor. If they think Trump is bad for the party, they are not morally obliged to back him.
But do the rules of the convention legally require them to vote for Trump? The executives of the Republican National Committee want us to think so. The delegates are bound to obey the results of the primaries and caucuses. Trump is the presumptive nominee. End of story.
But note the peculiar word choice—presumptive nominee. A presumption is a belief based upon probability. So, when they say Trump is the “presumptive nominee,” they’re admitting he is not the nominee yet—he probably will be, once the convention approves him. This implicitly acknowledges that the convention has the final authority: for if there is a chance that it will not approve him, then it must possess the power to make the final determination.
For more than 100 years of GOP history, it would have been silly to argue that the convention is not sovereign. Delegates were not technically bound to the results of primaries and caucuses until 1976, due to a maneuver by the Gerald Ford campaign to halt Ronald Reagan’s late momentum.
The current rules contain a binding provision that is not as airtight as the RNC executives want us to think:
Open and shut case, right? Actually, no—because Rule 16 expires the moment the gavel bangs the Cleveland convention to order! The rule that sunsets this binding provision is buried all the way at the bottom of the rules:
Rule 42 is the Rosetta Stone for understanding how the party rules actually function. Each Republican National Convention is like each meeting of the House of Representatives, in that it possesses total sovereignty over its own rules. The current rules were adopted at the 2012 convention in Tampa, and they govern party activity, but only between the Tampa and Cleveland conventions. Once the Cleveland convention opens, Rules 1-25 expire, and Rules 26-42 govern the proceedings until the delegates adopt a new set of rules.
Here is the crucial point: Rule 16 is not included in the temporary rules, which means that the delegates will be unbound under the national rules at the start of the convention. For Rule 16 to go into effect in Cleveland, a majority of delegates on the floor of the convention will have to adopt it again—which means they must first choose to be bound, which means they are in truth sovereign. They can reject Rule 16, and any other rule for that matter, and would be free under the national rules to select anybody they like for the nomination. The adoption of a conscience clause by the convention floor would free delegates from obligations under state-party rules, and then they would be free to select whomever they want as their presidential nominee.*
This is why the RNC leaders always say Trump is the “presumptive nominee.” They know he is not the actual nominee because they wrote these rules, and they know that final sovereignty still resides with the delegates, not the primary and caucus voters.
Normally, this is a distinction without a difference. In a typical cycle, the Rules Committee would report a package that includes some version of Rule 16, the delegates on the floor would adopt it, and the formal installation of the presumptive nominee would proceed apace. But Rule 42 operates as a safety valve for delegates who do not believe that the voters made the correct choice, or that the procedures for allocating delegates unfairly reflects the preferences of the voters. Trump, after all, won 62 percent of delegates for just 45 percent of the vote—hardly an equitable reflection of the people’s preferences.
If this seems like a weird way to do business, it is. The party essentially wants to have its cake and eat it, too. It wants a process that empowers voters to select the presidential nominee—because it makes the party look good, it is more inclusive, and it forces candidates to campaign. But at the same time, they did not want to hand real power over to the voters. So, we have this strange situation wherein the rules appear to empower the people, but the delegates possess an absolute veto.
To put it simply: If the delegates want to dump Trump, they have the legal authority to do so.
*Correction: This paragraph has been updated to reflect the fact that many state parties have binding provisions for their national delegates.
