The Green Papers
The Green Papers

Mitt Romney's formal delegate commitments
put him over the "magic number"--
but now what?

by Richard E. Berg-Andersson Staff
Fri 8 Jun 2012

So, it appears that former Massachusetts Governor Mitt Romney has finally 'clinch'ed the 2012 Republican presidential nomination-- even the "hard count" on The Green Papers itself now says so [;-)]. But the question is- as has been the case for some weeks now- not so much will Mitt Romney be formally nominated for President via the Roll Call of the States at the Convention in Tampa come late August as it is by how big a margin!

Put another way: now the fun really begins (at least for political "junkies" such as myself, if not the average ordinary American "out there")-- and I don't mean the fun of handicapping the so-called "Veepstakes" (the speculation over whom Governor Romney might now choose to be his running mate on the 2012 Republican Party national ticket): I'm talking, rather, about all the speculation surrounding (still!) the ability- or not- of "stealth delegates" (National Convention delegates now formally pledged to Governor Romney who are- because of the manner in which said delegates were actually chosen at post-Presidential Primary State and local Conventions- actually supportive of, for the most part, Texas Congressman Ron Paul) to have at least some significant impact upon the proceedings of the Republican Convention.

Based upon a combination of e-mails sent to me by various and sundry Ron Paul supporters (both within and without Ron Paul's campaigns in several States)- some of whom, at least, seem still to not be all that happy (to put it most mildly!) with my own conclusions re: the overall efficacy of this strategy as stated in my Commentary on the subject dated this past 29 April- the Ron Paul campaign and its supporters seem to already be divided (note well that I did not use the word split [which would imply more strife between factions than there actually is-- yet! ;-)]) between those I will, if only for purposes of this piece, call 'Accommodationists' and those I will, for the same purpose, refer to as the 'Hard Core':

The 'Accommodationist's are those who support Ron Paul but who also- however reluctantly, or even begrudgingly- acknowledge that Mitt Romney will, in fact, be the 2012 Republican presidential nominee- no matter what- and that the best interests of those Ron Paul-supporting delegates who are bound to vote for Romney on at least the First Ballot (which- or so the 'Accommodationists' seem to accept- will be the only ballot of Roll Call of the States re: the Presidential Nomination) is to do whatever they can (in combination with any and all delegates bound/pledged to Congressman Paul himself) to, among other things, influence the Grand Old Party's policy positions as reflected in the individual planks of the 2012 Republican Party Platform to be adopted at the Convention and the like.

The 'Hard Core', however, still have something of this fantasy (for that is precisely what it is!) that- somehow: if not through actual application of the more arcane aspects of Parliamentary Procedure come the Convention, then through some legal challenge of the Convention's procedure itself (of which more shortly)- they might still thwart the very nomination of Mitt Romney for President itself!

Many of those in this 'Hard Core' believe (or, at least, are being led to believe) that there are, in fact, more (if not many more) Ron Paul supporters amongst the already-chosen (and bound/pledged to presidential contenders) National Convention delegates themselves than either the Mainstream Media and/or the Republican Party leadership itself is willing to admit: even enough such delegates to (maybe, perhaps-- please, please, pretty please! [;-)]) actually outnumber all of those amongst the formally Uncommitted and those delegates currently bound/pledged to either former House Speaker Newt Gingrich and former Pennsylvania Senator Rick Santorum who might end up voting for Mitt Romney in Tampa---

which is all so much NONSENSE!

But, nonetheless, the 'Hard Core' Paulites so gamely push on:

We at The Green Papers have received more than a few e-mails from those who certainly appear to be within what I have called the 'Hard Core' of Ron Paul supporters- all of these citing Title 42, Section 1971(b) of the United States Code (the official codification of Federal statutes enacted by Congress). The fact that such e-mailers happen to be citing the exact same statute at around the same time suggests, to me, that this is not at all uncoordinated by somebody out there, somebody (or somebodies) who are still searching for legal justification for "stealth delegates" bound to Mitt Romney to not have to vote for the very candidate to which they are so bound.

42 USC 1971(b) reads as follows:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or Possessions, at any General, Special or Primary election held solely or in part for the purpose of selecting or electing any such candidate.

What appears to be happening here is that many- if not most- 'Hard Core' Ron Paul supporters are claiming that their (should these happen to be among the so-called "stealth delegates") being required to vote for Mitt Romney on Roll Call of the States re: Presidential Nomination at the Republican National Convention under threat of sanction by the Republican Party (under its own rules, as well as those flowing from the Call of the Convention [which include the rules about what to do if a Convention delegate refuses to vote as bound by other such rules]) is, in and of itself, a direct violation of Federal Law [specifically, the aforementioned 42 USC 1971(b)].

But well note that the statute in question itself applies specifically- and, thereby, only- to (and I will here boldface) any General, Special or Primary election held solely or in part for the purpose of selecting or electing any such candidate [that is: for the office of President, Vice President... etc.]... the statute says nothing about its applying to the inner workings of National Conventions of Political Parties themselves!

Now, I suppose- doubtless, in fact!- that a reasonable legal argument might well be made that a Major Party National Convention itself flows from such Primary elections for the office of President as are certainly covered by 42 USC 1971(b), an argument that- if only theoretically (for reasons I will discuss shortly)- could bring a National Convention under the provisions of 42 USC 1971(b). Indeed, U.S. Supreme Court Justice Thurgood Marshall's dissent in the case of O'Brien v. Brown [409 U.S. 1 (1972)]- which I examined extensively in a piece of mine posted on this website more than four years ago now- itself hints at a justification for just such an argument (so long as we always keep in mind that this was in a dissent from the Court's per Curiam opinion denying Certiorari [thereby refusing to hear the case] in an action brought before the court based upon National Convention procedure):

To quote Justice Marshall yet again: The primary process was, by State law, the first step in a process designed to select a [Major Party's] candidate for President; the State will include [presidential] electors pledged to that candidate on the ballot in the general election; the State is intertwined in the process at every step, not only authorizing the primary but conducting it, and adopting its result for use in the general election. In these circumstances, the primary must be regarded as an integral part of the general election.

Marshall was here relying- as precedent- on the Court's previous decision in United States v. Classic [313 U.S. 299 (1941)], which I also discussed at length in an earlier companion piece to the one to which I have linked a few paragraphs back now.

Logically speaking: if the Primary (or, or so it could also be argued, a State or other sub-State Convention) that bound/pledged a Party's National Convention delegates to presidential contenders is (as Marshall claimed) an inherent element in (ultimately) the placing of the name of that very Party's presidential and vice-presidential nominees on the State's General Election ballot, then wouldn't the National Convention which a.) actually- officially, formally- so nominates a Party's candidates for President and Vice President and b.) does so through the votes cast by those very delegates bound/pledged by said Primary (or State or other Convention) also be an inherent part of that same process?

After all, you can't get from A (a Presidential Primary or other National Convention delegate-binding "event") to C (the name of the Party's presidential nominee appearing on the ballot come November) without B (the National Convention said delegates attend and which is also charged with so nominating the Party's candidate for President): and, if so, then the Party's National Convention (and all its officers and committees, rules and procedures [without which the Convention cannot even function]) would then come under color of a Federal statute such as 42 USC 1971(b) [for there would then be no way to separate the actions taken at a National Convention from either the General or Primary election(s) specifically mentioned in- and, therefore, intended to be covered by- that very statute!

The issue of moment, however, is not really whether such an argument as I have put forth- however hypothetically- in the preceding several paragraphs does- or does not- have real legal merit.

Rather, the actual issue at bar is two-fold:

1. would the courts even entertain such an argument to begin with?(the per Curiam opinion in O'Brien [as opposed to Justice Marshall's dissent in same] suggests that the answer would be "no"-- because...)

2. how could this argument even be brought before the courts to actually be adjudicated? (as the O'Brien per Curiam itself suggests:

for, in the instant case now in 2012, Ron Paul "stealth delegates" cannot claim they are being forced- against their will [presumably in violation of 42 USC 1971(b)]- to vote for a presidential contender they themselves do not, in fact, support until and unless they are so forced by the very process of the Convention itself [thus, this argument cannot be made, in a judicial setting, before the Convention itself has already convened and, indeed, even before the Roll Call of the States re: Presidential Nomination is already underway (during which, presumably, such forcing could even occur)] and then, once this Roll Call is itself completed and the presidential nominee is, thereby, already determined, any such argument by a "stealth delegate" after the fact would be, on its face, be moot [that is: it would no longer be a "live case or controversy"- to here use the constitutional language as mere description- which the courts could then at all entertain])--

and this is all apart from whether or not the courts would even want to get so tangled up in something that would so easily fall under the rubric of those "political questions" the courts are generally (though not always! [;-)]) so reluctant to at all touch.

Simply put: if the Convention itself takes actions (even through rulings by the Chair, if necessary [as I myself suggested might be something of a "last resort" back on 29 April]) that thwart the "stealth delegates" (here assuming, for sake of this argument, that what would be so thwarted is their own attempts to either cast votes for someone other than Romney [even though these are bound, by rule, to vote for him on at least the First Ballot] or abstain [which would also be a violation of that to which these are bound]), there appears to be no effective legal remedy for them to otherwise pursue [42 USC 1971(b) or no 42 USC 1971(b)]!

Not that I think that any of this kind of heavy-handedness on the part of Convention managers will prove to be at all necessary in the first place come the Convention in Tampa itself, mind you!

Having said this, however: Mitt Romney- despite his position as the presumptive 2012 Republican presidential nominee- is not completely "out of the woods" yet.

Granted, he now has (thanks to his having swept all the National Convention delegates being formally bound/pledged this past Tuesday [5 June]) 1329 delegates so bound/pledged to him-- 185 more than needed. Thus, right off the bat, the "stealth delegates" would have to (as of this typing) number more than 185 in order to keep Romney under the "magic number" of 1144 and this does not at all take into account that about which I wrote back on 7 May: for Romney is certainly going to gain the votes, on Roll Call of the States, of a healthy chunk of the 283 delegates we at The Green Papers are "hard counting" (again, as of this typing) as Uncommitted as well as a similar "healthy chunk" of the 394 total delegates that are already formally bound/pledged to either Newt Gingrich or Rick Santorum.

Governor Romney will- by the time the Convention actually meets- end up with a significant "cushion" to offset whatever the "stealthy" amongst delegates already bound/pledged to him might do on the Convention floor...

but this does not mean that Mitt Romney doesn't have something of a political problem-- one that, as I've already opined on this very website, he still has more than enough time to deal with (as the Republican National Convention is still 80 days away): he is the consensus nominee of the Grand Old Party yet only roughly half of the Republican voters in Presidential Primaries actually voted for him! In addition: just how the "stealth delegates" among those already formally bound/pledged to him (along with the 98 already "hard count"ed for Ron Paul directly) might divide along what I have called 'Accommodationist'/'Hard Core' lines is yet unknowable.

All in all, then: Romney still has a ways to go to, more or less, unify his Party behind his own presidential campaign come the Fall in any event (fortunately for him, however: President Obama faces many of the same issues on the Democratic Party side of things [what with a somewhat less-than-enthusiastic Left (even though Obama ended up not having to face a serious more liberal challenge to his renomination in the Primaries and Caucuses themselves) and, on the other hand, many a moderately conservative Democrat voting for convicts and other little known personages in at least some of these more recent Primaries (albeit in States Obama is highly unlikely to win in any event come November)]).

As a result (and besides what he might still have to do in order to gain the support of Gingrich and Santorum delegates and supporters): Romney may yet be forced to "make nice" with at least the 'Accommodationist' Paulites (while, clearly, the 'Hard Core' Paulite seems the proverbial "lost cause" to Romney) and how well- or not- he and his forces on the floor (as well as up on the dais) of the Convention itself treat at least some of the Ron Paul-supporting delegates (whether pledged to Congressman Paul or [if only formally] bound to himself) will be the surest test of Romney's overall handling of this pro-Ron Paul "insurgency"...

although this alone- for sure- is not at all going to "make or break" Romney's ultimate bid for the White House!

For most Americans do not want Ron Paul to be President of the United States-- indeed, most Republicans wouldn't want that! (I happen to live in a predominantly Republican neighborhood in a community/municipality politically dominated by Republicans, itself in a metropolitan suburban county that is a virtual "fiefdom" of my State's Republican Party: I can tell you- from recent experience- that, should one want to gain a chuckle- or even just a smirk worthy of whipping out one's cell phone in order to take a photo of the smirker- all one has to do is mention "Ron Paul" in a sentence whilst attending some recent neighborhood block party or community gathering [that is: where one's so mentioning the Texas Congressman's name doesn't engender the same kind of "cold shoulder"- where not even at least mild anger- that mentioning the name "Ralph Nader" at a similar gathering of ordinary Democrats itself engendered not all that long ago now!]). In other words: however the Ron Paul supporters- whether outside the Convention Hall or on the floor of the Convention itself- are, or are not, treated is, in the main, of little- if any- concern to most anyone outside of those who so strongly support Congressman Paul...

I'm not saying any of this is necessarily right: I'm just here stating the reality of at least portions of the political landscape now in early June of Anno Domini 2012!

Conspiracy theories already well abound in cyberspace about how the "MSM" (that is: Mainstream Media)- in cahoots with the leadership cadre (the "Establishment") of the Republican Party (or not, depending)- is largely, and purposely, ignoring the Ron Paul "insurgency" in order to marginalize it. Truth be told: many (but not necessarily most) of those within said "insurgency" have already been doing their own level best to marginalize themselves!...

also, truth be told, the ol' MSM isn't all that much interested in the Ron Paul "insurgency" because, right now, it isn't really all that interesting (although it is certainly all good fun to speculate about its efficacy as we get closer and closer to the Convention-- which is precisely why *I* am writing about it, at least)... but you can bet that, were the Ron Paul-supporting delegates to, come the Convention in Tampa, prove to be more 'Hard Core' than 'Accommodationist'- to the point where there might even be real disruption of what will otherwise be the "Mitt Romney Going-into-Labor Day Telethon" most everyone expects that Convention to actually be- the ol' MSM will, most certainly, not ignore it (of course, then the complaints would be about the Mainstream Media focusing all too much on the "bad stuff"-- such as [if only in this hypothetical] disunity within the Grand Old Party!)

For now, however, we can only merely wait--

no, not for the Conventions (one a week after the other more than 2 1/2 months from now): rather, we wait to see who Mitt Romney might pick to fill the vice-presidential slot on his Party's national ticket (yes, those very "Veepstakes" I mentioned near the beginning of this piece) and that choice will say quite a lot about how Romney himself intends to gain the support of those GOP factions/wings still less than enthusiastic about his having become the Party's presumptive nominee...

but a Ron Paul supporter- whether 'Accommodationist' or 'Hard Core'- shouldn't be holding his/her breath that Romney's choice of a running mate will necessarily be all that much to his/her particular liking!

Modified .