1,237 Is Not Just Rule, But Essentially Is Law

The elections process within the United States is not as simple as it seems. There are different rules for parties that have large support versus parties that have little support. There are different rules for party candidates versus independent candidates.

Parties that have ballot access are allowed under the laws of the fifty states to select their nominees through national conventions that are in turn shaped by caucuses and primaries in the several states and territories of the United States. The acts of the national conventions of the parties are essentially ratified by the laws of the several states, permitting candidates who become party nominees at conventions to get on the ballot for November as a candidate for whom electors in the Electoral College may cast a vote.

The Republicans, Democrats, Libertarians, Greens, Constitution Party, etc. all have rules and, if they have ballot access in states, must comply with their rules to determine their Presidential candidates. The Republican Party rules give a new convention in a Presidential election year the right to alter the rules, but mandate that until the rules are changed, the previous rules serve.1

But there is a catch.

Because the party nomination processes are so intertwined with the laws of the several states, it would arguably be a due process violation under law for the party committees that have set out the rule requirements for majority wins to get to the convention and change that rule. The candidates went into a process told by their party that they would need 1,237 delegates. Changing that after all the votes had been cast in the states and territories would be legally problematic.

As it stands now, every party that has ballot access in all fifty states and in the territories of the United States require that a nominee receive majority support from the party at a convention. The laws of the several states specify that the candidate declared by the party to be the party’s nominee will be the name that appears on the ballot for November. The states, in other words, give license to the parties to conduct their affairs under their rules.

Changing the rules in the middle of the game as it relates to majority vote for the nominee would be a legal nightmare for the GOP. This is not going to happen. The party will not change majority rule to plurality in July after telling all the candidates that the rules under which they’ve run their campaigns required majority rule.

Trump supporters may be crying about a stolen convention, but the Republican Party is a legally chartered political organization with ballot access in all fifty states. Those fifty states and the territories require the Republican Party to adhere to the rules of the party to select the nominee the party will then certify to the fifty states as the party’s choice for President. The rules must be complied with and deviating from majority rule would wreck havoc.

So Trump and his supporters can complain all they want, but Trump chose not to run as an independent. He chose to run within the process of a political party to avoid signature collection drives, etc. He must therefore honor the rules just like the party must honor the rules. Those rules say the candidates running in 2016 needed a majority vote of 2,472 delegates to secure the nomination.

Donald Trump and his campaign knew this going in. They no more get to change this than the party gets to change this. It is not just a rule, but is essentially part of the election codes of all fifty states and the various territories from Guam to Puerto Rico.

1. Rule 42 of the Republican Party rules make their rules temporary for the next Presidential convention until the Rules Committee and Convention adopt a new rules package for our years. But, since the 70’s, the rules have required a majority of delegates. The candidates running in 2016 were all told by the party that they would need 1,237 delegates, or a majority. Every party in the United States with automatic ballot access requires a majority. If the GOP Convention suddenly changed that, yes I think there would be a legal argument against it given how intertwined the party nomination and state laws on ballot access are.

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Erick Erickson

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