OK, I was wrong. Tom Knapp was right.
Last month I posted my humble legal opinion that a
Dump Trump advocate from Virginia was hallucinating
when he filed a federal lawsuit seeking to strike down a state law
binding him to vote on the first ballot at the GOP convention for the winner of
the Virginia primary – Donald Trump.
Tom challenged my assessment. I offered to make a
wager that the lawsuit was frivolous and would be dismissed. I lose. Congratulations!
You should have bet me, Tom.
U.S. District Judge Robert Payne in Richmond said
the Virginia state law creates “a severe burden” on First Amendment
rights. That’s right. A judicial pig grew wings and took to the sky in Richmond.
Virginia cannot require GOP convention delegates to do what they were delegated
to do; honor their pledge to primary voters who elected Donald Trump, said
Payne.
The GOP Virginia primary voters apparently have no
First Amendment rights – their votes don’t count -- but the delegates who
promised to do their will in the primary election enjoy a First Amendment right
to stiff them and do as they please. The result of the primary election
sponsored by the State of Virginia is meaningless. The winner, Trump, has won nothing. The
primary was a sham according to Judge Payne.
Why even conduct a primary election at all if the
delegates aren’t really delegates, but rather free agents who can simply
disregard the election results and vote at the convention for anyone they like?
This judge just gave the delegates a judicial license to defraud the Virginia
Republican primary voters.
I don’t know if there is enough time left to appeal
this bizarre decision, but for the sake of justice I hope it is appealed. For
now, however a federal judicial pig has grown wings and flies in Richmond.
Timothy,
ReplyDeleteTo the extent that I was right and you were wrong, it was simply because I've had an interest in precisely how these particular matters play out for a long time and have developed a sense for what's coming. Let us take a trip to yesteryear:
Until 1884, governments did not print ballots and political parties chose their nominees however they damn well pleased. When you went to vote, you had three options:
1) You could get a ballot printed by your party of choice with the candidates' names already filled in, and cast it at the polling place.
2) You could take a piece of paper and pen and write your OWN ballot, and cast that ballot at the polling place.
3) If you couldn't write, you could dictate your votes to an election official at the polling place in the presence of a witness, the election official would write your choices out for you and hand you the ballot, which you would then cast.
When the states adopted the government-printed "Australian ballot" (a process that started in 1884 and was finished before the turn of the century), with it came a state prerogative and duty of deciding who got on the ballot and how, and different states came up with different solutions (caucuses, conventions, primaries, etc.). At the presidential level, that's a bit like a jigsaw puzzle. The party national committees dictate which states can make their choices when, and if a state defies the national committee, it loses delegates. The state governments may allow the parties to choose between primaries, caucuses and conventions, but probably dictate some of the outcomes.
In Virginia, one of the state's dictates was that the primary be "open." In other words, the Republican delegates to the Republican National Convention would be chosen not by Republicans, but by anyone who decided to vote in the Republican primary (29% of the primary voters identified in exit polls as independents and 6% as Democrats).
The exit poll crosstabs are interesting (Trump beat Rubio 37-32 among Republicans, Rubio beat Trump 31-29 among independents), but at any rate, the case here is that if Virginia law is going to let anyone and everyone vote in a specific party's primary, the obligation of the party's national convention delegates isn't to that primary result, but to their party ... and how THAT plays out gets decided in the party, not in the legislature.
That's the theory, anyway, and it seems to play out well in the courts. I happen to be SOMEWHAT against it because it's half-fish, half-fowl. The parties are organized under state law, benefit from access to elections funded by the state, ballots printed by the state, etc., but then suddenly announce that they are "private organizations" when they perceive any rule or law as being not in their interests. I think it should be one or the other. My PREFERENCE is for "private organizations." But that would mean ditching the Australian ballot and ballot access laws, among other things, and I doubt that's going to happen any time soon.
Very interesting. Fortunately the GOP rules also bind the delegates to vote for the primary winner on the first ballot but that in theory at least could be changed and the Virginia primary voters would effectively be defrauded. That's not likely to happen thankfully.
DeleteThe GOP rules bind the delegates to vote for the primary winner on the first ballot IF they vote. But the GOP rules don't require them to vote.
DeleteI've twice suggested -- and now there's allegedly an effort to implement the suggestion, although I doubt they got the idea from me -- that there's a way for the anti-Trump forces to win without changing or suspending the rules:
Trump must receive a majority of the votes "entitled to be cast" -- not just a majority of the votes that ARE cast -- to be nominated. That means he needs 1,237 votes.
Trump has 1,543 "bound" delegates.
If 307 of those "bound" delegates decide to abstain on the first ballot, Trump is not nominated and it goes to a second ballot.
After the first ballot, no delegates are "bound" to any candidate.
Under the rules, the only people whose names can be placed in contention for the nomination are candidates who have carried at least eight states. Only one candidate other than Trump gets over that hurdle, and that's Ted Cruz. So in order to nominate anyone other than Trump or Cruz, 2/3 of the delegates would have to vote to suspend the rules.
If I was a betting man, I'd bet on Trump to pull off the nomination (and win the general election). And I may just make those bets.