Political Convention Legalities

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The Democratic and Republican National Conventions, where the presidential nominees of their respective parties will be chosen, will be held in the last two weeks of July. In a year that has seen a focus in the delegate selection process like never before in recent times, we’ll take a look at the legalities surrounding the wooing of delegates by the presumptive presidential nominees and a look at how the rules of the conventions work. Constitutional expert Robert McWhirter will discuss those issues.

Ted Simons: The republican national convention is set to begin on Monday in Cleveland. We've looked at what happens at conventions, but how much is considered legally binding? Robert McWhirter. Let's start with the actions at a convention. Are they legally binding?

Robert McWhirter: There are state statutes. The Arizona statute says that a delegate to the national convention shall vote for the winner of the primary of that state. However, there's no particular sanction if they don't. The statute says they shall.

Ted Simons: As far as convention rules themselves, let's say, oh, I don't know, the republican convention decides to change the rules, legally binding?

Robert McWhirter: Of course. They can change any rule that they want. There's 111 members of the republican rules committee. If 56 of them vote for a clause, it totally changes the rules. If they say, you should have a different number of delegates -- trump has over 1,500. He needed just over 1,200. If they said, no, you need 2, 000, they could do it. They're a private corporation. They can do whatever they want. Let's say they don't get 56 and the trump forces say they're never going to get the 56. If they get them to write a majority position or minority report, then it goes to the entire floor where under 2, 500 delegates can vote on this issue and divide if they're bound by their primary results or not.

Ted Simons: You're saying their rules. What about the individual first amendment right? What if I'm a delegate and I'm from Arizona and Arizona went from trump and the party says, you better go. I think they make you sign a pledge. What makes me stand up and not say, I don't want to do this?

Robert McWhirter: Your free speech right, your 1s t amendment, it only protects you against the government. That doesn't mean the government can necessarily come in and impinge your person. Any person can be a jerk to another person to not say something. They've agreed to be bound, like you join a corporation, you agree not to do certain things. It would normally be a free speech right. How much they can be punished for not following their agreement is an open question.

Ted Simons: Let's talk about that. Do convention rules trump, if you will, state law?

Robert McWhirter: It's hard to know. Probably, they do. Now, let's go back to the Arizona statute, 16243. It says, they shall. If the convention, the national convention says, you can do whatever you want. The delegate can say, I'm following the rule. Where are they going to hash all this out? Is the state party going to sanction them and then will the national party sanction the state party?

Ted Simons: At a convention, a party can change any rule, any time it wants.

Robert McWhirter: It's not a democratic process. This is a private corporation. It makes its rules and it creates delegates in a winner takes all system. This is the interesting thing, if you take a look at the delegates, Arizona went from trump.

Ted Simons: Right.

Robert McWhirter: So all of our 50-plus delegates are going for trump. A lot of those delegates weren't trump supports in the first place and they're bound to go for trump and the state party is saying they have to do it.

Ted Simons: Again, though, if the rule changes contradict state law, contradict the fact that rules say, Robert, go vote whichever way you want. Arizona party says, you signed a pledge and you are bound?

Robert McWhirter: If you're willing to take the consequences in the Arizona party, they might be annoyed at you. There's another way the dump trump supports want to go about this. There is a short story. What they want to do is they want to have -- forget the rules. Let's say all the rules stay the same. They want everybody on the first ballot prefer not to vote, which denies vote the 1,200-plus delegates that he needs, which then puts into a second round of voting. The same state statute I stated says on the second round on voting, everybody's not bound. Arizona says on your second time around, you can vote for whoever you want. Far more interesting.

Ted Simons: Definitely far more interesting. So, obviously, the delegates, that's a one. Will there be legal fights? We're talking republican, but the democrats are going to be there, too.

Robert McWhirter: The democrats have gotten boring in terms of convention play. Everybody's going to have -- what's happened is the parties have gone to noncontentious conventions. The last one for republicans was in 1976 when Ronald Reagan challenged Gerald ford. The last democratic convention was 1980, when Edward Kennedy challenged jimmy Carter. Those were the last two times anything was in doubt.

Ted Simons: They've been pageants.

Robert McWhirter: They want to present a show. Now, well, this might not be the coronation that the republicans may have wanted. The democrats look like it's going to a coronation.

Ted Simons: Is this what the founding fathers wanted? They didn't want political convention.

Robert McWhirter: They didn't want parties. He wrote federalist 10 and got together with tom Jefferson and created the first political party. They used to select by a caucus committee and by 1832, Andrew Jackson, because he was a little annoyed about the election of 1824, created the first Democratic Party's first convention.

Ted Simons: Good to have you. Good information. Thanks for joining us.

Robert McWhirter: My pleasure.

Robert McWhirter: Constitutional Expert

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