Contrary to what has been asserted generally in the news media, the majority of the delegates to the Republican Party Convention in Cleveland are not bound by either state laws or party rules to vote for Donald Trump. In fact, at every Republican Party convention, since the first one in 1856, with the sole exception of the convention of 1976, the delegates have been free from the first ballot onward to vote as they wish in their selection of a presidential nominee.
Since it's clear that many of the delegates, perhaps a majority, believe that nominating Trump would be a disastrous mistake for the Republican Party and for the nation, they have the right, under the rules of the Republican Party, to deny the nomination to Trump and select someone else.
The historical evidence and reasoning for this conclusion is laid out in a recent book--Unbound: The Conscience of a Republican Delegate by Curly Haugland and Sean Parnell. An article in the New York Times by Jeremy Peters (June 27) reports that many of the delegates have accepted Haugland's argument for a "conscience exemption," and that Trump and his people will have to control the convention to suppress any delegate rebellion.
At the first Republican Party convention in 1856 in Philadelphia, a Mr. Coale, a Maryland delegate, declared: "We will vote as we please, and we will not vote in any other way." As Haugland and Parnell show, this same idea was expressed by other delegates in 1856 and at later conventions.
When the right of delegates to vote freely was challenged by proposed rules to bind the delegates, these rules were voted down. State Republican parties have enacted rules for binding their delegates at the national convention, but the National Republican Party has always asserted that the National Party Convention enacts its own rules as superior to the state organizations.
At the 1912 convention, for the first time, a delegation cited not instructions from their state party, but instructions based on a state law requiring that they vote as determined by a primary election. Those instructions were ignored at the national convention, and the individual preferences of the delegates were recorded. Later, decisions of the U.S. Supreme Court declared that it was unconstitutional for state laws to override the rules of a national political party, because a political party is a private organization with a constitutional right of freedom of association, which includes the right to set the rules of the organization.
The one exceptional case is the Republican Convention of 1976. Incumbent Gerald Ford seemed to have a majority of the delegates pledged to him, but he faced a serious challenge from Ronald Reagan. Fearing that some of the Ford delegates might switch to Reagan, the Ford people pushed through the convention a "Justice Amendment" saying that in those 18 or 19 states that had clear laws binding delegates to follow the state primary results, that those delegates would be bound by those laws. And yet the Ford people admitted that those state laws were unconstitutional, according to the Supreme Court, and so the convention was under no legal obligation to follow those laws. Moreover, everyone agreed that all of the delegates from states without such laws were free to vote their conscience, even in states with primaries but without state laws to bind the delegates to follow those primary outcomes. At the 1980 Republican Convention, the rules committee refused to accept this novel rule from the 1976 convention and returned to the long-established rule that delegates were free to vote as they wished.
It is true that some Republican Party rules adopted at and following the 2012 convention do mention the "binding" of delegates in rules governing the election and selection of delegates. But there is evidence that what looks like a radical change to a long-established principle was an error that arose through misunderstanding. In any case, it is clear that each convention has the power to set its own rules and is not bound by any change in the rules enacted by a previous convention. So unless the 2016 Convention enacts rules that bind delegates, this convention will follow the traditional rule (in 39 out of 40 conventions) that delegates are free to vote according to their individual consciences.
Of course, if delegates at the convention in Cleveland do vote for someone other than Trump, even though their state party rules or state laws say they are bound to Trump by his primary victories, Trump will angrily declare that this is an undemocratic disenfranchisement of the millions of people who voted for him. He has already made that argument.
But this only shows Trump's mistake in assuming that the United States is a direct democracy. It is not. It is a representative democracy or a democratic republic, in which citizens elect representatives to exercise their judgment in deliberating for them. That's true for the national Congress, for the 50 state legislatures, and for the Republican National Convention. These are all deliberative bodies, who respect the opinions of the people they represent, but who have the duty to exercise their own deliberative judgment about the public good, even when this sometimes goes against the opinions of some of those they represent.
We should notice that neither the Declaration of Independence nor the Constitution say anything about "democracy." But the Constitution does endorse "the Republican form of government."
Of course, elected legislators and political party delegates must take seriously the demands of the people they represent. Legislators and delegates must give good reasons for going against public opinion, and if their reasons are not persuasive, they cannot expect to have a successful political career. But their moral and political duty is to deliberate about the public good--the good of the country and the good of their party--and sometimes what they recognize as the public good is contrary to what the momentary passions of the people they represent might demand.
So if the delegates to the 2016 Republican Convention conclude that Trump is not qualified to run for President of the United States, that he lacks the moral and intellectual virtues necessary for being a good president, because he suffers from a narcissistic personality disorder, and if nominated, he is likely to lead the Republican Party into a disastrous defeat that might disable or even destroy the Party, then they will have the duty to nominate someone else.
I say this even though as a libertarian, I know that the success of Gary Johnson's campaign depends on his running against Clinton and Trump.
Or perhaps the Republican delegates could select Gary Johnson and William Weld as their nominees, so that Johnson and Weld could run for both the Republican Party and the Libertarian Party. After all, both Johnson and Weld have served as Republican governors.
The "Delegates Unbound" group has a website.
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