GOP delegates are legitimately bound, deal with it
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There has been a well meaning, but misguided, effort to convince delegates to the Republican National Convention that, despite state party rules or state laws in many states that bind them to vote for the winners of their state’s primary or caucus, they are free to vote for whoever they want for President, contrary to these binding requirements.  

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The advocates of this view say they want to “Free the Delegates” or affirm their right of “conscience” and they cite GOP Convention history, a Supreme Court decision, and current RNC Rules to support their position. They are right about history, but wrong about Supreme Court precedent and current RNC Rules. Absent the adoption of a contrary RNC Rule, state party rules and state laws which bind delegates are legally valid and respect for the Rule of Law requires that delegates vote in accordance with these requirements.

David French of National Review is the most credible advocate of the Unbound position. He is a lawyer and was Bill Kristol’s preferred independent candidate to run against Trump this fall until Mr. French declined. I respond to each of the arguments he made here:   

“1. State legislatures cannot violate the First Amendment rights of Republican delegates.”

Unquestionably, political parties are private political organizations that are exercising their First Amendment of right of association when they adopt rules governing their own internal affairs, i.e., here the selection of, and rules regulating the conduct of, delegates to their national convention.  On this point, we are all agreed.

However, whether a state law governing the internal affairs of a political party is valid is dependent on whether there is a contrary political party rule. State laws regulating the affairs of a private organization are not automatically invalid. They are only invalid if the state law violates the organization’s exercise of its First Amendment right of political association through the adoption of a contrary rule. As Mr. French acknowledges, “the Supreme Court has already ruled that in a conflict between state law and national-party rules, the national-party rules take precedence.” So we agree again.

Finally, the First Amendment right here is not an individual right of each delegate but a right of political association that requires the association to act. So Mr. French overstates his point by a slight of hand, while correctly arguing that the First Amendment protects political party rules against contrary state laws, he erroneously characterizes it as “the First Amendment rights of Republican delegates.” Delegates have no individual First Amendment right to vote as they please contrary to a state law.

Of course, some delegates to the GOP national convention are bound under state law, but some are bound under a state party rules, such as my home state of Indiana. There is no argument being made that such state party rule is constitutionally invalid and they are not. Only a contrary Rule of the Republican National Committee can invalidate a state party rule and such a RNC Rule is also necessary to invalidate a state law binding delegates. Mr. French and I diverge on what the RNC Rules provide.

“2. Traditional and current Republican rules and practices allow delegates to vote their conscience.”

Of course, it is true that, through most of its history, delegates were not bound by any state party rule or state law to vote for any particular candidate at the GOP national convention. Historically and now, delegates are selected by state party conventions or caucuses, and only rarely by election in a primary by the voters – this is why our primaries are called “Presidential preference primaries.” 

But as primaries have become more popular in order to gauge grassroots Republican support for a particular candidate, state laws and state party rules that bind delegates to the results of these primaries have also become more popular. So the critical issue is what do the RNC Rules say about this.

Mr French argues that “the most important RNC Rule” is Rule 38, which prohibits the adoption a “unit rule.” Rule 38 provides:

“No delegate or alternate delegate shall be bound by any attempt of any state or Congressional district to impose the unit rule. A ‘unit rule’ prohibited by this section means a rule or law under which a delegation at the national convention casts its entire vote as a unit as determined by a majority vote of the delegation.”

This Rule has nothing to do with state laws or state party rules binding delegates to the results of a primary or caucus. The “unit rule” was a devise by which a “delegation at the national convention casts its entire vote as a unit as determined by a majority vote of the delegation.” Of course, this Rule does protect the right of delegates to cast their votes as the delegate determines – but only from an effort to bind the delegate by vote of the entire delegation to the national convention, not by the vote of Republican primary voters or caucus attendees.

And nor does Rule 37, which Mr. French also cites, which provides in applicable part:

“(b) In the balloting, the vote of each state shall be announced by the chairman of such state's delegation, or his or her designee; and in case the vote of any state shall be divided, the chairman shall announce the number of votes for each candidate, or for or against any proposition; but if exception is taken by any delegate from that state to the correctness of such announcement by the chairman of that delegation, the chairman of the convention shall direct the roll of members of such delegation to be called, and then shall report back the result to the convention.”

As Mr. French correctly points out, this Rule “mandates individual roll-call voting and permits individual delegates to challenge the count,” but it has nothing to do with prohibiting state binding laws or rules. And combined with Rule 38, it does not, as Mr. French alleges, “permits delegates a choice.” Zero plus zero still equals zero.

But most importantly, Rule 16(a)(2), which Mr. French references but pooh poohs, recognizes and enforces state binding requirements:

“(2) The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. . .” 

First, this Rule requires that the Secretary “announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule.” So as long as state law or a state party rule binds a delegate to vote for a certain candidate, his or her delegate vote will be so recorded, regardless of the delegate’s preference, or as Mr. French says, his or her “conscience.” 

And the second sentence prohibits a delegate from nominating under Rule 40(b) any candidate other than one to whom he or she is bound. So this Rule also enforces state binding requirements.

In response, Mr. French argues first that Rule 16(a)(2) conflicts with the “principle of individual delegate outlined in Rule 37.” But as we have already seen, Rule 37 does not conflict with state laws or state party rules which bind delegates. 

But he argues that, well, the Convention may adopt different Rules at the beginning of the Convention. Of course, this is true – that the Convention may change the current Rules and adopt a different Rule at the beginning of the Convention and, if they do this, that Rule will govern. I have argued that the Convention should defer any amendments to the current Rules until after the adjournment of the Convention, , but this does take us to the critical point.

“3. If the Republican Party wishes to bind delegates to Trump, it will have to change the rules to do so.”

This is just not so. As explained, state party rules and state laws are currently valid and enforceable, since there is no RNC Rule that prohibits them.  So the shoe is on the other foot. A RNC Rule prohibiting binding must be adopted by the National Convention, to be effective at the 2016 Convention, to relieve delegates of their state binding. Certainly those advocating a “conscience amendment” implicitly understand this and they are right.  

So that is the task of the Unbinding forces – to get the Convention to adopt a Rule that vitiates state party rules and state laws binding delegates. But as I have already argued in a previous Hill op-ed, the adoption of this Rule would, in my opinion, delegitimize, and perhaps destroy, the Republican Party. It is my hope that we do not take this drastic step.

James Bopp Jr is a constitutional lawyer with The Bopp Law Firm, PC, bopplaw.com. He is former Vice Chairman of the RNC and has served as Special Counsel for the RNC and its Rules Committee. He is a delegate to the 2016 GOP National Convention and will serving, for the fifth time, on the Convention Committee on the Platform.