Rule 40

[Erc]

Rule 40 requires a candidate to demonstrate support from majorities of delegates in 8 states before being placed in nomination.  Currently, Trump has majorities in 5 states, Cruz in 3, and Rubio in 1.

So far, I and many others haven't been taking Rule 40 very seriously, figuring that if it posed a problem, it would be overturned by a vote of the delegates before the first ballot.

However, with Cruz and Trump doing quite well, Rule 40 takes on increased importance for the hopes of anyone else of winning the nomination.  Here's the text in full:

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Note that bound delegates are required to follow their binding when expressing support under Rule 40.  Note also that territories + DC count as states for the purposes of this rule.

Open questions include:

• Can nominations be made between ballots?  If so, does Rule 40(b) apply to them?
• Could Rule 40 be repealed between ballots?

An interesting scenario to consider is if only Cruz and Trump qualify under Rule 40.  Even if neither of them have a majority on the first ballot, both candidates may have an interest in seeing Rule 40 stay in place, and their committed supporters might form a solid pro-Rule 40 bloc.  This would force a two-way race between Cruz and Trump.

Of course, if nominations are allowed between ballots, most delegates are unbound after the first ballot (and even more after the second), and it could be some compromise candidate could get majorities in 8 states after the first or second ballot.

[cinyc]

Note that bound delegates are required to follow their binding when expressing support under Rule 40.  Note also that territories + DC count as states for the purposes of this rule.

That could give outsized importance to delegates from the states and territories that don't formally bind their delegates.  American Samoa and Guam are two of them.  Are there any others?

[Erc]

Note that bound delegates are required to follow their binding when expressing support under Rule 40.  Note also that territories + DC count as states for the purposes of this rule.

That could give outsized importance to delegates from the states and territories that don't formally bind their delegates.  American Samoa and Guam are two of them.  Are there any others?

North Dakota and Pennsylvania do not formally bind a majority of their delegates, as well.

[cinyc]

North Dakota and Pennsylvania do not formally bind a majority of their delegates, as well.

Are the U.S. Virgin Islands directly elected delegates who expressed a preference for a candidate bound?

[Erc]

North Dakota and Pennsylvania do not formally bind a majority of their delegates, as well.

Are the U.S. Virgin Islands directly elected delegates who expressed a preference for a candidate bound?

I believe they are.  As Cruz is the only person even trying there, I imagine he'll win a majority there handily, though.

[Pandaguineapig]

in a brokered convention, the delegates would be released after the first ballot making it easy for any candidate to meet rule 40

[Likely Voter]

Last night former RNC chief counsel Ben Ginsberg was on MSNBC and described this rule (and in essence every convention rule) as a "temporary rule" that was agreed for the last convention. So it is in effect until the rules committee meets and the delegates vote on new rules for this year.  He has also previously noted that delegates are often not selected by candidates and that the pledged delegates are only pledged to vote for president on the first ballot. They are "free agents" on rules votes and all other votes including VP. 

It should be noted he says these things with the knowing smirk of a cartoon cat that just ate a canary and he appears to be in the Never Trump camp. 

[Erc]

Last night former RNC chief counsel Ben Ginsberg was on MSNBC and described this rule (and in essence every convention rule) as a "temporary rule" that was agreed for the last convention. So it is in effect until the rules committee meets and the delegates vote on new rules for this year.  He has also previously noted that delegates are often not selected by candidates and that the pledged delegates are only pledged to vote for president on the first ballot. They are "free agents" on rules votes and all other votes including VP.  

It should be noted he says these things with the knowing smirk of a cartoon cat that just ate a canary and he appears to be in the Never Trump camp.  

Note the critical part of that is that the delegates would have to vote on the new rules.  Obviously, the delegates at the convention are not bound to support their candidate's interest on rules changes, as you say.  That said, we're likely approaching a scenario where both Trump and Cruz have a vested interest in not seeing Rule 40 changed...and their committed supporters are likely to form a majority at the convention.

Of course, this doesn't matter too much for subsequent ballots if nominations can be made between ballots.

EDIT: Note that last night's results mean that Trump is now at 7/8 Rule 40 states, and Cruz is at 5/8.

[emailking]

So does a pledged delegate get to vote on the first ballot if his/her candidate's name is not placed into nomination?

[Erc]

So does a pledged delegate get to vote on the first ballot if his/her candidate's name is not placed into nomination?

It depends.  Many states have provisions releasing delegates automatically in the event that their candidate is not actually a candidate for the nomination (as would be the case if they failed to meet Rule 40).  In this event, they'd be free to vote their conscience.  Many other states do not, though honestly it's unclear what would happen here.  There would be many candidates bound to vote for a candidate who they are not allowed to vote for; I've been assuming they would be forced to abstain, but it's unclear and could be an issue at the convention.  The number of these delegates would be greatly reduced if Rubio and/or Kasich officially release them, but they may not have an incentive to do so.  Note that you do still need 1237 votes to win the nomination, even if many delegates abstain.

Taking another look at the rules, it does seem that there's no opportunity to nominate new candidates between ballots, especially given the 1 hour requirement in Rule 40(b).  It's possible there may be some way around this by futzing with the Order of Business; it may be worth looking into this later.

Regardless, a motion to suspend the rules is always in order (Rule 32); it requires a majority of delegates in 8 states to make and second such a motion, and of course would require a majority vote of all the delegates to pass such a motion.

[Likely Voter]

It all comes down to how committed are Trumps (and to an extent Cruz') pledged delegates.  The Stop Trump people are spending $10s of millions to force a contested convention. They way Ginsberg talks, it seems to me they believe a good chunk of them will be party loyalists merely assigned to vote Trump on the first ballot.   

[Erc]

It all comes down to how committed are Trumps (and to an extent Cruz') pledged delegates.  The Stop Trump people are spending $10s of millions to force a contested convention. They way Ginsberg talks, it seems to me they believe a good chunk of them will be party loyalists merely assigned to vote Trump on the first ballot.   

Made a quick map of how the delegates are chosen in each state here.  Most states choose theirs in a convention process, which is likely to disfavor Trump.  Of the states that have voted so far, he can probably only truly rely on his delegates in NH, AL, TN, and HI.

Whether there's political will to stop Trump in such a fashion (that would likely lead to at least an abortive Trump independent bid) is another question.

[Likely Voter]

In one appearance Ginsberg actually said "you have to look at the way delegates are selected".  These guys are up to something.   If Trump goes in just short of a majority then he is probably fine, but under 40% and they will find a way to take it away, especially if his actual PV totals remain under 40 and his Hillary v Trump poll numbers remain negative.   

[Erc]

FHQ has an interesting take on the likelihood of rules changes, and the power that Paul Ryan will have in this process; he's more discussing the Nuclear Option than Rule 40, but it's worth a read.

[Likely Voter]

I am bringing this back to pose the question: what will Cruz want with Rule 40? Let's assume that Cruz pulls off winning enough states with enough margin to meet the current criteria. Would he want his loyal delegates to side with the delegates loyal to Trump?  Or will they side with the Establishment ninja delegates? who will want the rule change so Kasich  (and Rubio's? and Romney's?) names can be entered into nomination.

At first I would think Cruz would side with Trump, but then what happens to all of Kasich's delegates on the first ballot?  Do they become unbound? If they do, then they become available to be wooed by Trump with promises of jobs, gifts and maybe even cash.  Trump must know that his best shot is the first ballot before he loses any delegates so his focus in on the unbound delegates. And the more of them, the better his chance at the first delegate (assuming he goes in just shy of a majority).

I imagine that Cruz' goal is to get to the second ballot, where he hopes his loyal Cruz delegates and secret double agent former Trump (and other) delegates will give him a majority.  So perhaps Cruz will want Kasich (and Rubio) delegates to be bound to their candidates on the first ballot.  That is assuming he hasn't already place enough ninjas amongst their ranks to get him the majority on the first ballot. 

I can't believe that I am saying this, but I can't wait to watch the meeting for the RNC Rules Committee.

[The Other Castro]

The question I'm wondering is just how loyal Trump's delegates are. Though they are pledged to vote for him on the first nomination ballot, their personal alliances may lie with the RNC, which may support Cruz indirectly as an anti-Trump mechanism. I think it's more likely that any rule changes or lack thereof would favor Cruz over Trump.

[Erc]

I am bringing this back to pose the question: what will Cruz want with Rule 40? Let's assume that Cruz pulls off winning enough states with enough margin to meet the current criteria. Would he want his loyal delegates to side with the delegates loyal to Trump?  Or will they side with the Establishment ninja delegates? who will want the rule change so Kasich  (and Rubio's? and Romney's?) names can be entered into nomination.

At first I would think Cruz would side with Trump, but then what happens to all of Kasich's delegates on the first ballot?  Do they become unbound? If they do, then they become available to be wooed by Trump with promises of jobs, gifts and maybe even cash.  Trump must know that his best shot is the first ballot before he loses any delegates so his focus in on the unbound delegates. And the more of them, the better his chance at the first delegate (assuming he goes in just shy of a majority).

I imagine that Cruz' goal is to get to the second ballot, where he hopes his loyal Cruz delegates and secret double agent former Trump (and other) delegates will give him a majority.  So perhaps Cruz will want Kasich (and Rubio) delegates to be bound to their candidates on the first ballot.  That is assuming he hasn't already place enough ninjas amongst their ranks to get him the majority on the first ballot.  

I can't believe that I am saying this, but I can't wait to watch the meeting for the RNC Rules Committee.

Good point there.  I'd been assuming that both Trump and Cruz would rather not change Rule 40...but of course only one of them could win a 1 on 1 contest.  They might both think they could win, but probably they'd be able to know sometime on the first day of the convention how that would shake out.

As for the various Kasich (and Rubio) delegates in these situations, as the rules stand it's basically up to Kasich and Rubio themselves.  In most states (though not all), they get to keep their delegates as long as they don't officially release them or "withdraw" as a candidate.  It's somewhat unclear, but even if they don't get placed into nomination, their delegates would remain bound to them.  Kasich might do this in the hopes that he could qualify for Rule 40 on the second ballot.

Note that, of course, Kasich (or Rubio) could decide before the first ballot to withdraw or release their delegates, in an attempt to strike some Faustian bargain with Trump.  There's nothing much Cruz could do to stop that, short of massive rules changes or secretly having control of the Kasich or Rubio delegations.

FHQ has some additional discussion on possible rules changes today.

[The Other Castro]

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http://www.washingtonexaminer.com/gop-insiders-nominee-wont-be-limited-to-winner-of-8-states/article/2586357