The rules of the game

Beginning last fall, Donald Trump's campaign has been embarked on an effort to change the rules of the delegate selection process to make it easier -- and faster -- for the front-runner to lock up the nomination. Never has this been more critical, as the former president faces 91 counts in four different states and the prospect that trial proceedings could interrupt his march to the nomination. He was in California last week, not only to woo voters but also to thank the party for changing the rules so that if he wins a majority in the primary, he also wins all of the state's delegates to the convention.

Back in 2016, Trump's people got outflanked in key states by Ted Cruz, who managed to secure more delegates even in states where Trump beat him because of the way the rules were structured. That won't happen this time around, according to Ben Ginsberg, one of the nation's top election lawyers, because "despite a large number of candidates, only the Trump campaign went out and did the really hard grunt work of talking to state parties to try and get them to meld their rules to Donald Trump's favor," and has succeeded "in part because they knew what they were doing and in part because everyone else is asleep at the switch."

The Supreme Court has ruled that it is the political parties, and not state legislatures, that control the rules for nominating presidential candidates. The Trumpers have been working the system since 2019, managing to convince state parties to either move to winner-take-all systems (which reward frontrunners) or to party caucuses rather than primaries, which are controlled by insiders who Trump has actively courted since then.

The convention rules provide that delegates, with few exceptions, are "bound" by the results of the primaries and caucuses for at least one round of balloting, unless the candidate they pledged to support drops out of the race. Does that mean that delegates cannot vote their conscience? What happens when intervening events change the dynamic of the race?

In 2016, in what was seen as an effort to stop Trump, then Rules Committee member Curly Haugland argued that under the rules, delegates should be free to vote their consciences and not to be bound by the votes in state primaries and caucuses. He and a colleague, Sean Parnell, a public policy consultant in Virginia, published a book entitled "Unbound: The Conscience of a Republican Delegate," and made the round of talk shows, arguing that Trump could still be stopped.

In 1980, Democrat Ted Kennedy made the same argument in an effort to stop the nomination of Jimmy Carter. The nomination was effectively decided on the first night of the convention, when delegates rejected the effort to change Rule 11(h) -- what we on the Kennedy side called the "robot rule" -- which bound delegates, two-thirds of whom were pledged to Carter. The convention is, after all, the highest authority of both parties; it makes the rules and can change the rules. I cut my teeth on that campaign, writing speeches about why a robot rule should not control the convention. What if the prospective nominee committed a crime between the primary and the convention, we asked. What if he were convicted of one? In 1980, it was a rhetorical question. In 2024, come this summer in Milwaukee, it may not be rhetorical at all.

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