[EL] Big development regarding the "white knight" proposal at RNC Rules committee

Fri Apr 22 04:38:06 PDT 2016

Regarding your second point below, whether someone else can be nominated  
(without a suspension of the rules or a new rules change) after balloting 
begins  at the RNC convention, there was a very important development which 
largely  shuts that door

Yesterday, a possible Rules change was discussed at the RNC Rules Committee 
 meeting that would have changed the parliamentary authority for the Rep.  
national convention from the House Rules to Roberts. One reason expressed by 
its  supporters for this change was their concern that a new candidate 
could be  put on the ballot during voting ,after several ballots resulted in no  
nominee, based simply on presiding officer's authority, as Mark argues  
below, rather than by a vote of the convention delegates.

During the debate, RNC General Counsel John Ryder said that the "white  
knight" concern was not well founded because the RNC Rules themselves,  
specifically Rules 40(e), does not permit reopening of nominations, once voting  
has begun, without a suspension of the rules that requires 2/3 vote of the  
delegates.

_Click  here: RNC rules panel rejects proposal to simplify convention 
procedures -  Washington Times_ 
(http://www.washingtontimes.com/news/2016/apr/21/rnc-rules-panel-rejects-proposal-simplify-conventi/)  

Of course, RNC Rules takes precedent over whatever parliamentary authority  
the RNC uses and John Ryder, as RNC General Counsel, is the final authority 
on  the interpretation of RNC Rules, so this seems to have settled the  
issue.

This also has confirm my view, expressed below to Mark's original post,  
that RNC Rules prevent reopening of the nominations, once balloting had begun, 
 unless the rules are suspended by a 2/3rd's vote. 

Unfortunately, many in the media missed this important development about an 
 issue that it has widely discussed.  Jim Bopp 

In a message dated 4/3/2016 7:45:00 A.M. Eastern Daylight Time,  
JBoppjr at aol.com writes:

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, 
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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