GOP Delegates Are ‘Free’ to Choose Whomever

May 29 on CNN, Bret Stephens of the Wall Street Journal confessed that he wanted Donald Trump to be “the biggest loser in presidential history,” and:

It’s important that Donald Trump, and what he represents, this kind of ethnic quote conservatism or populism, be so decisively rebuked that the Republican Party and the Republican voters will forever learn their lesson that they cannot nominate a man so manifestly unqualified to be president in any way, shape or form.

Mr. Stephens, usually a smart guy, has entirely too much faith in the voters learning “their lesson.” People rarely change; they don’t “learn lessons” easily. Sure, if their country is defeated in war and they lose everything, some of them might think: that guy we elected sure was a loser. But like alcoholics and other addicts, most people must “reach bottom” before they’re ready to learn lessons. They must “learn their lesson” over and over again before it’s learned “forever.”

Delegates to the Republican National Convention in Cleveland next month should read David French’s June 9 article at National Review, “Not a Single Republican Delegate Is ‘Bound’ to Donald Trump.” French’s headline says it all; delegates are not legally nor constitutionally “bound” to vote for any candidate. French goes into history, law, and party rules. He begins with the constitutional questions:

Throughout the primary, pundits have reminded voters again and again that there exists a patchwork quilt of state laws that “require” delegates to follow the will of the primary voters -- sometimes only through one ballot, sometimes through more. These laws are unconstitutional. A state entity cannot mandate the manner in which private citizens govern private organizations.

French cites the 1975 Supreme Court case of Cousins v. Wigoda, (click the X in the upper-right corner of the dialog box, and you’ll get to the webpage). Justice Brennan, no conservative, delivered the Court’s opinion, which ended:

Thus, Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention. Whatever the case of actions presenting claims that the Party's delegate selection procedures are not exercised within the confines of the Constitution -- and no such claims are made here -- this is a case where “the convention itself [was] the proper forum for determining intra-party disputes as to which delegates [should] be seated.”

The Court’s decision was nearly unanimous with only Justice Powell filing an opinion that dissented in part, but which also concurred in part.

In his second section, French examines the RNC rules, and he makes it clear that GOP delegates are “free agents,” unless they choose not to be. Choosing to be “bound” would involve changing party rules. French’s powerful conclusion to his 1,196-word article is a corrective to the lies we hear on the boob tube about this contest being over. Not a single delegate has voted. (At least the pundits have the grace to refer to the nominees as “presumptive,” anything else would be presumptuous).

So, if the parties are sovereign with regard to their rules and who gets to be a delegate and so on, why do we have these expensive, interminable primaries and caucuses? The answer is probably the ballot-access laws in the several States. In order to get their presidential candidates on the ballot in the states, the parties must conduct primaries or caucuses or conventions or whatever a state says.

The solution to this problem is to require all states to grant ballot access to the presidential nominees of parties whose past nominees received a significant share, perhaps twenty percent, of the popular vote in recent presidential elections. This would require a constitutional amendment, a big undertaking. But it would help the major parties to find, and even draft, the best nominees.

There’s seems to be a bit of self-righteous moral preening going on among the anti-Trump crowd. I won’t make very much of this, because we both want the same thing: a conservative in the White House. But do the NeverTrump people advocate changing the system that has given America these two presumptive nominees? That system, i.e. the primary system, is one of the reasons we’ve seen the vile demonstrations in California. If there were no primaries, with their rallies, there’d be nothing to protest. If party nominees were chosen by “unbound” delegates to conventions, as Mr. French suggests can be done, there’d be none of the vandalism, the assaults, and unrest we’ve been seeing lately. I suggested back in 2009 at GOPUSA that delegates just ignore the primaries, and Mr. French, a constitutional lawyer, has just provided justification for that.

Unless GOP delegates nominate the Beast of the Apocalypse, I’ll be supporting the Republican nominee, Trump or No-Trump. You go to the polls with the nominee you have. I admire certain things about Mr. Trump, but he’s not my beau idéal of a conservative candidate. I’m more of a John Bolton-Victor Davis Hanson-Laura Ingraham-Condi Rice kinda guy, not to mention David French.

Bret Stephens and the rest of the NeverTrumpians might consider whether America has the luxury of possessing the time to “learn” our lesson. There are several very serious things coming to a head in the next four years. America needs the best that America has to offer. But the NeverTrumpians haven’t offered any solutions other than some cockamamie third party candidacy to try and throw the election into the House of Representatives. I love the smell of “delegate mutiny” in the morning; it smells like … victory.

Republican delegates, read French’s article. You’re free agents, kids.

Jon N. Hall is a programmer/analyst from Kansas City.

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