The (Rule) 40 Horsemen of the GOP Apocalypse

As the dust settles on Super Tuesday 2016 and the pundits declare who “won” each state and how many delegates each candidate received, there is a crucial element missing from the conversation: Rule 40 of “The Rules of the Republican Party”.

Why does Rule 40 matter?

Because no one can vote for a candidate at convention if the candidate does not qualify under Rule 40. The key passage of Rule 40 states, “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.” In other words, a candidate must earn a majority of delegates from each of eight states to have their name placed on the ballot at convention. Just as candidates must meet certain requirements to be on the ballot in primaries and caucuses, so must they meet this eight-state threshold to appear on the convention ballot.

After last night’s contests, Trump has a wide lead on this threshold with the majority of delegates in five states (South Carolina, Alabama, Georgia, Massachusetts and Tennessee), Ted Cruz has the majority of delegates in just one state (Texas), and Marco Rubio has yet to secure the majority of delegates in any state.

With all of the talk of a brokered or contested convention, it is worth understanding the three possible scenarios under Rule 40.

Scenario 1: Donald Trump is the only candidate to secure the majorities of eight state delegations.

With last night’s results and the trajectory of the race overall, it appears likely that Trump will be the only candidate to reach the current Rule 40 threshold. Absent any pre-convention hijinks to change the threshold, this scenario would leave Trump as the only name on the ballot at the Republican convention.

Under this scenario, how many delegates Trump and other candidates have accrued, and how loyal they are to their candidate, will matter a lot. Why? Because if Trump secures a majority of delegates on that first ballot, he is the nominee. If he falls short of a majority, it goes to a second ballot, in which many delegates are no longer bound by the results of their state’s primary or caucus. In such a case, eight state delegations could agree to support another candidate and add that candidate’s name to the ballot. The rounds of balloting and politicking would continue until a candidate receives a majority of the votes.

Yet even before the first round of balloting begins, hijinks could ensue under this scenario. There are several opportunities to change Rule 40 before the convention begins the nomination process. The RNC will hold its spring meeting on April 20–22 and could modify the rules then. The rules committee will also meet on the eve of convention and could modify the rules then as well. Once the convention is underway, its first order of business will be to approve the rules, which affords delegates the opportunity to seek to amend them. And lastly, it may be considered in order for delegates to move to suspend the rules during the nomination process to allow Cruz, Rubio or another candidate who fell short of the Rule 40 threshold to be placed into consideration and receive votes on the floor from the delegates they won in primaries and caucuses.

Changing Rule 40 prior to the nominating process commencing is the current operating assumption of many in the GOP establishment. However, there are still 24 contests between now and the RNC Spring Meeting, and it is most probable that Trump will have obtained a majority of delegates from at least three of those states, crossing the Rule 40 threshold. It is far less probable that another candidate also crosses this threshold. But any attempt to change the rules between now and convention, would likely lead to the grassroots’ pent up frustration — which has been slowly defusing through primary and caucus voting — breaking into open civil warfare. If the rules are changed under this scenario, especially from the convention floor, I would advise standing close to one of the stanchions holding a state banner to provide an advantage in the ensuing brawl. (I’m assuming the standard resolution banning firearms from the convention floor will be passed first.)

Scenario 2: No candidate crosses the eight-state threshold.

The second most likely potential scenario would be that no candidate achieves the eight state threshold. As noted above, Trump is very likely to do so, while other candidates are not, so I would not count on this scenario becoming reality. That said, this is the best case scenario for the #nevertrump backers because it would throw the convention into disarray and force a rules change before or at the convention. The fight, a potential civil war, shifts to the RNC Spring Meeting or convention eve rules committee meeting.

In this scenario, who the convention delegates and Rules Committee members are would be an important detail. Given the time Marco Rubio and Ted Cruz have spent wooing delegates and senior Republican officials, this situation would likely benefit them over a more outsider candidate like Donald Trump.

Scenario 3: Multiple candidates cross the eight-state threshold.

The final, and least likely scenario, would be that multiple candidates reach or surpass the required eight state threshold. The result would be the simplest outcome: the rules would likely remain the same and a traditional floor fight would occur. The qualifying candidates would need to come into the contest with as strong a delegate count as possible and look to secure the loyalty of their delegates while figuring out how best to pick off the delegates of their opponent(s).

How did we end up here?

Leaving aside for a moment how we ended up with Donald Trump as the near-presumptive nominee (I addressed some of that in an earlier piece), the current threshold in Rule 40 was brought to us by the Romney campaign in 2012. Romney campaign attorney Ben Ginsburg pushed through an increased threshold on the eve of the convention to prevent Ron Paul’s name from being placed on the ballot, smoothing the path for a unanimous convention vote from Romney. What made sense in that moment as an effort to forge a united party may very well lead to the most chaotic convention in decades.

What does it all mean?

Considering the constraints of Rule 40 and the possible scenarios it puts in play for the Republican convention what are the things worth watching over the next few months? Look to see if Donald Trump secures the majority of delegates from another three states, look to see if anyone else is able to catch up to Trump in the state delegation count, and look to see if members of the Republican establishment attempt to change Rule 40. The bottom line for the convention is: delegates matter, delegations matter more, rules matter the most.

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