[EL] GOP convention Rule 40
JBoppjr at aol.com
JBoppjr at aol.com
Sun Apr 3 04:45:00 PDT 2016
Regarding your two points discussed here:
(1) Rove's statement:
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.
Under current Rules, this statement is obviously wrong. When the tally is
announced after the vote of the delegates, only the votes for nominated
candidates will be announced. If someone votes for their favorite Fantasy
Candidate, he or she will not be included in the tally announced by the
convention chair at the conclusion of the vote.
This is provided for in Rule 40(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." Paragraph (b) is the provision of the Rules on
nomination of candidates.
Thus, only duly nominated candidates will be announced in the final tally
and thus eligible to win the nomination.
(2) whether someone else can be nominated (without a suspension of the
rules or a new rules change) after balloting begins.
No. There are several reasons but the most obvious is that under 40(e),
"If no candidate shall have received such majority, the chairman of the
convention shall direct the roll of the states be called again and shall
repeat the calling of the roll until a candidate shall have received a majority
of the votes entitled to be cast in the convention." The Rules does not
allow for new nominations between roll calls but only conducting the next
roll call.
Jim Bopp
In a message dated 4/2/2016 6:01:25 P.M. Eastern Daylight Time,
Mark.Scarberry at pepperdine.edu writes:
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, p
rior 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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