Rule 40 Doesn’t Mean What You Think It Means
It matters, but probably not for the reasons you’d think
I have a piece over at NRO today going further into detail as to why the current coverage misreads the significance of certain GOP convention rules, but I thought it was important to highlight a key exchange on the most recent Floor Fight podcast from Patrick Ruffini of Echelon Insights and Daniel Nichanian (aka @Taniel) of Daily Kos Elections. Just two episodes in it is already an essential listen if you care about delegate minutiae, but the latest was a particular treat as they hosted Professor Josh Putnam (aka @FHQ) of UGA and Frontloading HQ, the foremost purveyor of primary and convention knowledge this side of Ben Ginsberg’s billing rate.
Talk naturally turns to Rule 40(b), the suddenly ubiquitous Tampa provision commonly (mis)understood to be a barometer of primary and caucus victories. While the rule does indeed state that candidates must secure a majority of delegates in eight states to be placed into nomination, bound first-ballot votes are insufficient based on the language of the current rules. Rather the language of Rule 40(b) stipulates that in order to be placed into nomination a candidate must present a “certificate evidencing the affirmative written support” of a majority of delegates from eight states. Mind you, nothing in the current iteration of Rule 40(b) or any other rule requires a delegate, bound or otherwise, to affirm such support…
About 48 minutes into the podcast, Nichanian gets at a key question that I’ve been wondering myself. Namely, how and when (and how often) must candidates qualify under Rule 40(b) under the current iteration of the rule?
Nichanian: We cannot rule out anyone coming in at any point until the floor fight actually happens?
Putnam: Right, right- it would come at least after that point, after the rules have made their way to the floor of the convention. And again, if the rules stand as they are, the the way that the RNC is interpreting things there would be a reset after every vote, and you would have new qualification under what is the current Rule 40- if that holds. And that would repeat itself over and over again.
Ruffini: I’m just trying to be very clear. So on the second ballot, is it the same set of candidates that were on the first ballot? Do the states then have to reorganize themselves? To say, alright now, 8 states now want Paul Ryan, although he’s saying today he’s not gonna run. What’s the mechanism for this white knight candidate? What do they actually need to do to get their name placed in nomination?
Putnam: Well, to demonstrate support you have to have gathered the requisite signatures and then pass them on to the folks that are running the convention- the chairman or the secretary- an hour in advance of the next roll call vote. So again, there are some rules, mechanisms that depending on how quickly the convention moves into a second roll call vote could potentially eliminate folks from contention there. That it would keep it to just, say, Trump or Cruz if they’re the ones to be placed into nomination. But if, say, the RNC has the reins of control on this they could slow things down at a much more formal sequence to this that we’ll have a vote now, we’ll have a vote in four hours, in which case subsequent or other candidates could get involved in this, and they just have to demonstrate that support of a majority of delegates in eight states- if that rule stands.
Ruffini: Now would that allow for people to be dropped from the ballot if they no longer have the support of the eight? Or are you just adding people?
Putnam: This is a very good question, and one that I was hoping we would get to on this. Yeah, I mean it would open the door to people being dropped if they can’t qualify on the subsequent ballot. There’s nothing that says that if you qualify on the first ballot that you’re automatically involved in subsequent votes. Now we could see that added to the rules as an incremental change, but sure, given what we’ve seen so far in the selection part of this process, if you’ve got a lot of delegates bound to you but aren’t sincere supporters of you, then if they become unbound on a second ballot, then suddenly you’re potentially left in a bit of a lurch- that you might not have the support of enough delegates in eight states. And that’s an aspect that I don’t think has been talked about too terribly much so far: that Donald Trump could potentially slip below that Rule 40 threshold on the second ballot and not even be involved…
In other words it’s time we stop think of Rule 40(b) as a one-time barrier to entry for the Kasichs or the [insert white knight here]s of the world, and more as a moving target that is equally perilous for any candidate without the loyal support of the delegates on the floor.
