Making Open Convention Happen - Based on an RNC Counsel Memo

                    "A wise man will hear, and will increase learning,

                  and a man of understanding shall attain unto wise

                  counsels:" Proverbs 1:5 KJV

(This article also appears on the Earthquake Movement's website  under Open Convention.)

    
Romney has passed 1,144 delegates but an OPEN CONVENTION can still happen – within bounds of the Republican Party Rules. A memo from no less than an RNC Associate Counsel confirms that all delegates are unbound. The same memo also showed a way to overcome Rule #40(b) which requires a candidate to have a plurality of votes from five states to be eligible to an official nomination at the convention. 

A short background: A Utah Republican National Committeewoman named Nancy Lord wrote to the RNC Counsel in 2008 to seek clarification on the so-called “unit rule” (Rule#38) which states that “No delegate or alternate delegate shall be bound by any attempt of any state or congressional district to impose the unit rule.” (See reprint of the full memo at the end of this article.)

Here are the key parts of the memo:

From: Jennifer Sheehan – Legal

To: Nancy Lord

Cc: Sean Cairncross - Legal ; Blake G. Hall

Sent: Friday, August 22, 2008

Subject: RE: The Unit Rule

Mrs. Lord:

I am going to attempt to clearly answer your questions as listed below. 

1. You are correct - the answer is no.  The national convention allows delegates to vote for the individual of their choice, regardless of whether the person's name is officially placed into nomination or not.

…….

(Regarding Rule #40)

4. … The Rules require that a roll call be taken from each state who announces the number of votes that its delegates cast for any eligible candidates, as well as for any person someone would like to cast a vote for in the roll call.  You are correct that a person does not have to be officially nominated in order to receive votes, however, this vote is essentially pointless as it will not count towards the official tally (emphasis mine).

Therefore to clarify, a candidate must receive the support of the majority of five state delegations in order to be officially placed into the nomination.  Only candidates that have been officially nominated can accumulate votes that will count towards the majority of delegates necessary to officially nominate the Republican nominee for President.  The Republican nominee for President must receive at least 1191 votes from the national convention delegation in order to receive the official nomination. 

The memo is clear enough that Rule #38 frees delegates to vote for any candidate they want and only a candidate with a 5-state majority support  [per Rule #40(b)] can be officially nominated. It also clarified that since every delegate is unbound, he/she is free to cast a vote for anybody, even one who does not meet the 5-state majority support. However, that vote will not count as it will not be added towards the official tally. Let us say someone puts in Sarah Palin’s name. That vote will be tossed out. BUT A VOTE FOR PALIN IS A VOTE DENIED ROMNEY, THUS KEEPING HIM BELOW THE THRESHOLD OF 1,191 - WHICH LEADS US TO AN OPEN CONVENTION.

Nothing is set in stone. No one is declared a nominee until after the convention. Members of the 5-state majority delegations can place ANYBODY's name on the nomination form. Please nominate anybody but Romney on the first ballot and keep him under 1,191 votes. Make open convention happen.  

GAME ON!   

 REPRINT OF THE MEMO (SOURCE: http://republicanselect.blogspot.com/2012/05/rnc-counsel-on-rule-38-of-rnc-rules.html)
  
RNC Associate Counsel's Opinion on Rule 38 of the RNC Rules barring the "unit rule"

MEMORANDUM

SUBJECT: RULE NO 38 - UNIT RULE
FROM:      RNC COUNSEL
TO:             NANCY LORD
DATE:       AUG 20, 2008

________________________________________________________________

This Memorandum is based on your request to examine the Republican Party Rules historyrelating to the so-called “Unit Rule” provision currently found at Rule 38 which states, “Nodelegate or alternate delegate shall be bound by any attempt of any state or congressional district to impose the unit rule”.

This language was initially adopted at the 1964 Republican National Convention, paraphrasingthe words of the proponent of the amendment, in order to codify in party rules the actual practicefollowed in past conventions, namely to allow delegates to vote as they chose even if state law bound them to vote for a specific candidate.

This amendment which modified then Rule 18(a) was initiated by the RNC Rules Committee andadopted by the full RNC at its pre-convention meeting. That ’64 language stated, “No Delegateor Alternate shall be bound by any attempt of any State or Congressional District, the District of Columbia, Puerto Rico or the Virgin Islands to impose the unit rule.” Based upon a review of the transcripts of the RNC debate on the “Unit Rule”, proponents of the ’64 amendment argued that their amendment to Rule 18 merely reflected current practice and adopting this Rules change would simply memorialize what was the historical Convention practice, not create a new policy.

During the debate on the “Unit Rule” amendment, there was some concern raised that the new language would be interpreted by some to prohibit the individual states from adopting rules that would bind or allocate delegates to specific candidates. The proponents, however, gave assurances that it was not their intention to effect any “legal or “moral” obligation of the delegates. Based upon the concern raised that this provision would be erroneously read to prohibit states to bind or allocate delegates a concerted effort was made to defeat the amendment. That effort to reject the addition of the new “Unit Rule” language based on that concern, failed, 59 to 41.

In 1976 the no “Unit Rule” language was modified by the RNC Rules Committee, effectively requiring the 1976 Convention to record delegate votes based on the results of “any binding Presidential Primary or direct election of delegates bound or pledged pursuant to state law.” The Convention Rules Committee and the Convention itself accepted this RNC modification without any debate. The additional Rule 18(a) language applicable to the 1976 Republican Convention read as follows, “…however, that in any event, the vote of each state for the nomination for President shall be announced and recorded (or in the absence of an announcement shall be recorded) in accordance with the results of any binding Presidential Primary or direct election of delegates bound or pledged pursuant to state law. No delegate or alternate shall be bound by any attempt of any state or Congressional district to impose the unit rule.”

The ’76 language was deleted in 1980 effectively reverting back to the 1964 language and the current language regarding the “Unit Rule” now found in Rule 38 is consistent with the 1980 language.

---

Dear Blake and Sean,

Thank you so much for the memorandum [above] regarding the history of the Rule 38.

After studying it, I still have unanswered questions.

From the memo, I am clear that:

1. Rule 38 was not intended "to prohibit the individual states from adopting rules that would bind or allocate delegates to specific candidates".

What I need clarified is the following:

1. Do the RNC Rules require a state's delegation to follow its state laws or state party rules in the matter of binding of their national delegates to vote for a particular candidate? (I believe the answer is no; the RNC Rules are silent on this issue. My understanding is that any “legal" or “moral” obligation of the delegates, under either state law or state party rules, is simply that -- a state party matter. The RNC will not get involved in any such issue unless it deems that there is a violation of Rule 38 - an attempt to invoke the "Unit Rule" - during the time of the national convention.)

2. Do the RNC Rules prohibit a state party from changing its rules regarding the binding of their national delegates after the 2nd Tuesday in the September the year before the convention but before the national convention begins? (I believe the answer is no - the RNC Rules are again silent on this issue.)

3. Do the RNC Rules allow a national delegate to cast their vote for anyone they choose at the national convention, regardless of any vote-binding rules in their state or regardless of whether or not that "candidate" has been officially nominated under the RNC "majority of delegates from five states" rule? (I believe the answer is yes. I cite the actual rolling roll call of the states vote in 2000 as an example. In several states, even though George W. Bush had for many months been the presumptive nominee, several states, including Arkansas (19 for Bush, 5 for Alan Keyes) in the 2nd session on Monday evening, Massachusetts (35 for Bush, 1 for McCain, and 1 abstention) in the 3rd session on Tuesday evening,

4. Is the process of the "rolling roll call of the states" the process by which it is determined which candidates have met the RNC "majority of delegates from five states" rule in order to have their name officially placed in nomination? In other words, or as a corollary, do only those candidates who receive a "majority of delegates from five states" votes during the "rolling roll call of the states" become an official nominee, while any candidates receiving votes who did not receive the required majority of five states' votes simply fall to the floor, having not met the threshold?

Is there any way that you can clarify the answers to these questions in writing before tomorrow morning?

Nancy Lord

Utah Republican Republican National Committeewoman

---

From: Jennifer Sheehan - Legal

To: Nancy Lord 

Cc: Sean Cairncross - Legal ; Blake G. Hall 

Sent: Friday, August 22, 2008 

Subject: RE: The Unit Rule

Mrs. Lord:

I am going to attempt to clearly answer your questions as listed below.

1. You are correct - the answer is no.  The national convention allows delegates to vote for the individual of their choice, regardless of whether the person's name is officially placed into nomination or not.

2. National Party Rule No. 15(e) does prohibit State Parties from changing their delegate selection and allocation process that the State Party had to submit to the RNC no later than Sept. 4, 2007.  However, the time frame for submitting a challenge to the national convention delegation based upon these Rules has expired, as any delegate contests had to be filed by August 2, 2008.

3. Yes - see #1 above.

4. Your question is mixing two separate issues.  The first issue involves the nominating process, which requires the majority of delegates from five states to put a candidate's name into the official nominating process.  The delegates from these five states must sign a nominating form that is then submitted to the Secretary of the Republican National Convention.  After the Secretary receives these forms, the candidates are announced who have been officially placed into the nominating process and are therefore eligible to accumulate votes from the national convention delegates.    

The Rules require that a roll call be taken from each state who announces the number of votes that its delegates cast for any eligible candidates, as well as for any person someone would like to cast a vote for in the roll call.  You are correct that a person does not have to be officially nominated in order to receive votes, however, this vote is essentially pointless as it will not count towards the official tally. 

Therefore to clarify, a candidate must receive the support of the majority of five state delegations in order to be officially placed into the nomination.  Only candidates that have been officially nominated can accumulate votes that will count towards the majority of delegates necessary to officially nominate the Republican nominee for President.  The Republican nominee for President must receive at least 1191 votes from the national convention delegation in order to receive the official nomination.

Please let me know if you have additional questions or need further clarifications related to this process. 

Sincerely,

Jennifer Sheehan

Associate Counsel

Republican National Committee

Posted 14th May by Mike Ridgway