[EL] GOP convention Rule 40

[Scarberry, Mark]

Thoughts on Rule 40(b), which some people are saying will prevent the GOP Convention from considering anyone but Trump (and maybe Cruz) for the presidential nomination?

Karl Rove said on Hugh Hewitt's radio show that Rule 40(b) only prevents a candidate who is not supported by a majority of delegates from 8 states from being formally nominated and from giving a nomination speech (together with seconding speeches), but doesn't prevent votes for the candidate from being cast and counted.

The second half of his statement (allowing for counting of votes) appears to be wrong per Rule  40(d), but perhaps only if a candidate (Trump in this case) receives a majority (1,237) of the votes entitled to be cast:

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, 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. Before the convention adjourns sine die, the chairman of the convention shall declare the candidate nominated by the Republican Party for President of the United States and Vice President of the United States.

I suppose what is apparently excluded is the announcement of votes for anyone other than those formally nominated, if there is a majority winner. It may be cutting it too thin to say that votes can be counted but just not announced; of course, if Trump gets 1,237, he gets the nomination, and it doesn’t matter whether votes for others are counted or announced.
As I read the rule, the situation may change on a second or later ballot. Provided there is at least an hour between roll call votes, a majority of delegates from 8 states, many of which would be unbound, could certify that they support another candidate, making that candidate eligible to be nominated. Here is the text of Rule 40(b):

(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.
I think that is a fair reading of the rule, not a hyper-technical reading. Such a reading should not be treated as an underhanded attempt to avoid application of the rule and deny Trump the nomination. So Cruz or Kasich or even someone else could be eligible to be nominated on the second ballot or on a later ballot, even if they can’t be nominated on the first ballot. A rule could reasonably be adopted, or I suppose the chair could simply decide, that an hour or an hour and a half would elapse between ballots. (I don’t know of any rule that requires a roll-call ballot to begin to be taken immediately after the conclusion of an earlier ballot, but perhaps there is such a rule.)

There is a provision (Rule 40(a)) allowing for a motion for nomination by acclamation if only one candidate has been nominated, but I think any such motion could be contested and at least a voice vote be demanded if there is substantial dissent. There was a voice vote when Sen. Goldwater was nominated by acclamation in 1964 on motion of the losing candidate, Gov. Scranton:

“Eventually, however, the motion of acclamation was carried by a resounding voice vote and Governor Scranton returned to the stand to say that he and his wife were happy about the whole thing. They even managed to look as if they were.” Tom Wicker, Goldwater Nominated, Special to the New York Times, July 16, 1964, https://partners.nytimes.com/library/politics/camp/640716convention-gop-ra-2.html.

The chair could reasonably rule that the motion has not carried – particularly if a majority of the delegates are not in favor of giving Trump the nomination – and then we'd be off to a second ballot. There is at least some support for the concept that adoption of a motion by acclamation requires unanimous consent, http://www.roberts-rules.com/parl06.htm, though I doubt that the drafters of the rule intended to require unanimity. Here is the Rule:

(a) In making the nominations for President of the United States and Vice President of the United States and voting thereon, the roll of the states shall be called separately in each case; provided, however, that if there is only one candidate for nomination for Vice President of the United States who has demonstrated the support required by paragraph (b) of this rule, a motion to nominate for such office by acclamation shall be in order and no calling of the roll with respect to such office shall be required.
I wonder what list members think, especially list members who may have experience in dealing with convention rules. Note also that, contrary to what is being widely stated, there is no requirement that the candidate have won a majority of delegates from 8 states in a primary or caucus; it is enough if a majority of delegates from 8 states certify their support for the candidate. I don’t think that delegates who are bound to vote for a candidate can certify support for another candidate, but some aren’t bound on the first ballot and many are not bound on later ballots.

I’m overwhelmed with work right now, and barely was able to get this post out to the list. Please pardon me if I’m not able to do more than just read any responses.

My apologies also if I’ve missed something obvious, which might be the case.

Best wishes,
Mark Scarberry

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


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