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

Fri Apr 22 04:54:39 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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