Over the last month or so, a great deal of attention has been paid to the #NeverTrump movement, to the possibility that delegates to the Republican National Convention in Cleveland could somehow nominate a more conservative alternative, and to the struggle over the rights of conscience of convention delegates.
As the former Arizona State Director for Ted Cruz’ campaign I have gotten a lot of questions from those in the media and from my fellow delegates as to my position and, as I periodically realize when I’ve had the same very long conversation a number of times – and recognize that I’m going to have it quite a few more times – it occurs to me I’d be a lot better off writing it down and posting it to my blog. So I’m doing that now.
Are the delegates bound? Some say that Arizona law binds them and, sure enough, Arizona Revised Statutes contain language saying that delegates will cast their first ballots for the candidate who received the most votes in Arizona’s Presidential Preference Election (PPE). Most lawyers will point out the glaring deficiencies in the statute. The first is a lack of enforcement mechanism or penalty, making it something more akin to a really firm suggestion. The second is personal jurisdiction; specifically Arizona law doesn’t bind anyone when they are not in Arizona. You don’t have to follow Arizona laws when you are in Ohio anymore than Ohio’s laws bind us here in Arizona. Third is subject matter jurisdiction, which is that there isn’t proper authority to legislate the subject itself. Fourth is the U.S. Constitution, because the First Amendment doesn’t allow the states to regulate the operation of political parties. That’s settled case law.
The fact that Arizona state laws (or any state’s laws) can’t constitutionally bind the behavior of a private party’s convention delegates shifts the debate to whether or not delegates are bound by the convention’s rules. Here again, it appears they are not (UPDATE: Although Jim Bopp, a very capable attorney argues differently and relatively convincingly here). While they were truly bound in 1976 and subsequently unbound in 1980, as the rules stand today, when the convention is gaveled into session in July of 2016 the delegates will be unbound unless rules are written and passed to bind them. Now this could happen, and if the delegates pass such a rule then the debate will be largely over, but until then, delegates remain unbound.
There are even a few who are suggesting that the paper pledges delegates were forced to sign by the Arizona GOP somehow binds them, but this is the weakest argument. Pledges signed under duress are never binding, and pledges signed when delegates are assured that they do not bind them and that they are merely to comply with RNC rules are equally non-binding. Even telling delegates that its nothing more than an acknowledgement of what state law says only carries a legal force equal to that of the already existing state law, which is constitutionally zero.
So, if it isn’t that delegates are legally bound by state law or by convention rules, does this mean that I, as a delegate, am free to vote my conscience and am unbound? Yes. And therefore No.
Everyone who was involved in the Republican Presidential primary process knew the rules that we agreed to “play by” from the beginning. No matter if they were written in statute, party rule books, or were just common knowledge left undisputed, everyone (campaigns, elected officials, and voters) knew the schedule for the primaries. They knew which states were winner-take-all and which awarded delegates on a proportional basis. They knew which state delegates were considered bound for the first ballot only, the first two ballots only, and the first three ballots only. They knew which state delegates were unbound from the get go. Again, EVERYONE knew these things and agreed to them. And they tailored their campaign strategies to them.
Which is why every time Trump lost and complained about the process he was accused of being a whiner. It was why while Trump kept threatening to sue states that didn’t go his way he never sued because he knew the process was as per the rules.
It was why every campaign, most notably Trump’s and Cruz’, focused on winning primaries and caucuses AND ALSO focused on winning the delegates themselves in the event the matter was not settled on the first ballot.
It was why here in Arizona we didn’t stop working on the Cruz campaign just because the primary was over, because we knew the delegates themselves could decide the matter on a second or third ballot.
It was why attempts by the Trump campaign to smear the legitimate process as corrupt and to accuse the Cruz campaign of trying to “steal” delegates were both dishonest and sleazy. Every campaign knew the rules and pretending you didn’t just to stir up some outrage and to try to intimidate potential delegates was pretty darn low down.
It was why every time someone repeated those talking points and accused us of thwarting the process and the will of the people we had to explain to them the actual rules that everyone had agreed to.
Now, I understand how rules are convenient to some people when they suit their purpose and become suddenly unfair when they don’t, but that’s no way to elect the leader of the Free World. That kind of relative morality has a home in the Democrat Party already and is really unwelcome in the Republican Party.
But if we’re going to point out to Trump voters that those suddenly defending the rules and the process are the same voices who just a few weeks ago were pretending not to know the rules and process so they could call us cheats, then we need to remind those who opposed Trump of the same importance of consistency.
Are there written laws actually binding delegates? No. Are there currently convention rules binding delegates that will be in force when the convention begins? No. Is my conscience binding me to vote for Trump on the ballot because those are the rules we all agreed to way back at the beginning and defended for the entirety of the process? Absolutely.
It isn’t about Trump, his ideology, his chances of victory, or the campaign he has run. I didn’t vote for McCain in the primary or Romney either. Neither was a conservative although they pretended to be for the primaries. Neither was likely to win for that very reason. And each ran campaigns that left something to be desired. But they each won the nomination according to our rules, and there was no attempt to deny them the nomination at the convention.
I recognize that Trump is different in some regards, and the personal nature of how he treated his opponents and even their families has left permanent scars that compound his challenges. But that doesn’t mean I get to set aside what I know is right in response.
So its off to Cleveland, where I am as bound on the first ballot and free on the second and subsequent ballots as I have always been and always maintained I was. That’s what my conscience requires of me.
Which is why the RNC and the State Parties need to back off their efforts to strong-arm delegates. We all got elected per the rules, and threatening delegates will only ever have the same effect of getting them to dig in harder on principle. We’re conservatives. We do that. And if the Party’s goal is to help Trump get elected, they can make the convention and the process easier by trusting the delegates to do the right thing.
A Donald Trump who leaves Cleveland with the nomination secured in a convention where delegates are arrested or hauled off of the convention floor for refusing to bend their knee is a weakened candidate. A Donald Trump who secures the nomination in a room where delegates from around the nation voted their conscience and chose him to lead the party is a stronger candidate.
Finally, no one disagrees on the importance of stopping Hillary Clinton to save the country. Trump may only give us a small shot at quality judges, but Hillary gives us none. The political reality is that removing Trump at the convention will split the party in a way that will be impossible to fix by November. It is the equivalent of handing the White House to Hillary Clinton. And that ought to weigh heavily on the conscience of every delegate.