Caucus Reform? Primary Reform? Delegate Reform? Lessons from the 2016 Political Party Presidential Nominating Process: A 50-State Review of the Legal and Political Mechanisms Deployed by the Republican Party for Selecting Delegates to the 2016 Republican National Convention

Abstract

There are two major political parties in the United States: the Democrats and the Republicans. Every four years, each party officially nominates a candidate to run for the position of President of the United States. Presidential candidates are selected through a political party’s nomination process. The 2020 primary season officially kicked off on February 3, 2020 with the Iowa caucuses and will conclude at each parties’ nominating convention. The Democratic presidential convention will take place in July 2020; the Republican convention will be held in August 2020. While most television viewers will watch the conventions for the speeches and pageantry, there is much business to be conducted at these conventions. Specifically, each political party must select their Presidential candidate for the November 3, 2020 U.S. presidential election. This article focuses on the largely unsung mechanical work associated with the selection of those individuals who will be elected or appointed delegates for their respective political parties and who will travel to their party’s nominating convention to help select the presidential nominee. The presidential nominating process is long and incredibly complex. Each party’s national committee sets forth the overarching rules of the nomination process. The party committee in each state then dictates the rules that will control that specific state’s nomination contest. At the state level, there are two general types of election contests: primaries and caucuses. “Primaries” or “primary elections” are the process by which voters indicate their preference for a party candidate. A “caucus” is a meeting of members or supporters of a political party during which they vote for their preference for the party presidential nominee. The candidate who wins the presidential nomination is the person who has won the greatest number of party delegates before the party’s nominating convention. As the Council on Foreign Relations recently explained, delegates are “individuals who represent their states at national party conventions.” “Delegates are often party activists, local political leaders, or early supporters of a given candidate. Presidential campaigns court local and state politicians for their slate of delegates because they typically bring the support of their political constituencies. Delegates can also include members of a campaign’s steering committee or longtime active members of their local party organization.” In 2020, the Democratic nominee will be the person who secures at least 2,376 out of 4,750 delegates; the Republican nominee must secure at least 1,277 out of 2,552 delegates (of course, no one thinks that anyone other than President Donald J. Trump will be the nominee for the Republicans). The presidential nominating process has been subject to considerable criticism over the years, and there have been numerous calls to reform it. 2020 is no different. Indeed, following the well-report failures and embarrassment of Iowa’s 2020 caucuses, more voices joined that chorus, with some calling for the nomination process to be scrapped entirely or at least substantially revamped. Even Democratic National Committee (DNC) chairman Tom Perez has raised questions about how best to handle the Democratic Party’s Presidential Nomination process. Although the Electoral College does not directly touch upon the process whereby each political party selects their delegates to the party’s nominating convention, there has recently been much debate about the role of the Electoral College, which speaks to the public’s interest in learning more about the mechanisms for selecting and electing an American President. This discussion is bound to increase now that the United States Supreme Court has decided to hear two lawsuits involving so-called faithless electors (i.e., electors who fail to vote for the presidential candidate that they are pledged to support). And, of course, there has been much publicity associated with the National Popular Vote effort by several states seeking to avoid amending the United States Constitution’s electoral college rules by circumventing them with a nationwide electoral college “compact,” which will allocate a state’s electoral votes in accordance with the popular vote winner in a given presidential election. To help assist researchers, scholars and other stakeholders in what will likely be a long and tortuous process by the Democratic Party (and perhaps even the Republican Party after November 2020) to reform (or not) the process of nominating presidential candidates in the future, this Article seeks to summarize some of the mechanics associated with that process. To accomplish this task, I have attempted to describe the state rules governing the Republican presidential nominating process as those rules existed during the lead up to the 2016 Presidential election. Although some this information may be outdated, there are good public policymaking lessons to be drawn from the various rules, regulations and requirements — even outdated ones — that determine the parties’ respective presidential candidates. Some of these lessons can be drawn from various historical references, which help illustrate the real-world application of the rules as they existed in 2012 or thereafter and add context where significant controversies altered—or should alter henceforth — the nominating process in a particular state. Furthermore, it is my goal to help others learn some of the technical jargon and to understand some of the issues and rationales setting up a nationwide system for selecting a political party’s candidate for the U.S. Presidency. This Article focuses on the Republican Party’s rules as they existed between the 2012 and 2016 Republican National Conventions. During that time period, the Republican Party’s nomination process was far more exciting and unpredictable than was the Democratic Party’s. In 2012, the incumbent President Barak Obama was the Democratic Party’s presumptive nominee. In 2016, it was mostly thought that Hillary Rodham Clinton was the heir apparent to President Obama. Of course, history now teaches us that Bernie Sanders and his supporters would likely dispute this point. In contrast, the Republican Party was in a state of flux about whom they should nominate. This is best illustrated by the fact that the Republicans had 17 major candidates seeking the presidential nomination that was eventually won by now-President Trump. Accordingly, during the 2012-2016 period, which is when I compiled much of this information, it made the most sense to study the Republican Party’s nominating process and procedures instead of the Democratic Party’s process. In fact, there was even talk about a “brokered convention” up until the summer 2016 Republican National Convention in Cleveland, Ohio. So, a study of the Republican’s delegate selection and acquisition process then may have more historical significance and teaching points than the process that ultimately gave rise to Democratic candidate Hillary Rodham Clinton. Finally, understanding the inner workings and mechanics of how American political parties select delegates to their presidential nominating convention is important for any scholar, public policy professional or politician interested in reforming the process of selecting presidential candidates. Hopefully, the information contained in this Article will contribute to the nation’s ongoing dialogue concerning the nomination and, ultimately, the election process of the Presidency.