by Quin Hillyer

As reported earlier at this site today, Dr. Tom Coburn, the former U.S. Senator from Oklahoma, is open to being drafted as the Republican nominee at the party’s national convention this week.

The question arises, how could this happen, at this late date?

Two steps: 1) Delegate petitions to put his name in nomination. 2) Delegate abstentions on the first ballot.

Here are the applicable rules and procedures.

First, Republican National Convention rules state (quite absurdly, but that’s an argument for another day) that no candidate’s name may officially be placed under consideration for the presidential nomination, and no votes for a candidate for the presidential nomination may be officially tallied, unless a plurality of the delegations of five states signs a petition supporting the official consideration of that candidate. But, note: Even a delegate officially bound by party rules to vote for another candidate may still sign a petition supporting the placement in nomination of another name.

Therefore, if enough delegates from at least five states sign a petition asking that Coburn’s name be put in nomination, then he will clear the first hurdle of being allowed to have votes cast for him.

Once he clears that hurdle, Coburn can attract more and more votes on the second or third ballots of a contested convention even if he receives few votes the first go-round. Remember: Most states “unbind” their delegates after the convention’s first ballot, and even more unbind them after a second ballot — making almost all delegates free agents if no candidate gets the absolute majority of delegates (1,237) required to secure the nomination.

coburn

Remember that of 2,473 delegates to the convention, around 1,000 are officially uncommitted or were elected as pledged to other candidates such as Ted Cruz, Marco Rubio, or John Kasich. And of the delegates officially counted in Donald Trump’s corner, some of them arguably remain unbound to him even after the party hacks passed a rule through the convention Rules Committee Thursday night that purports to strengthen state party provisions “binding” delegates’ votes. If all the unbound delegates vote against Trump on the first ballot, Trump’s margin of error shrinks to about 100-vote margin (above the magic number of 1,237).

Still, the strengthened binding rules would appear to keep Trump in control… unless… unless delegates abstain.

Trump

Second: Yes, abstain. Not even a delegate “bound” to vote for Trump as opposed to any other candidate is required to cast a vote for any candidate at all. An abstention, or a vote of “present,” is an affirmative vote NOT to approve of a candidate currently under consideration. Because an absolute majority, rather than a simple majority, is required for the nomination to be secured, every abstention effectively lowers Trump’s available number of votes while still leaving intact the high bar of 1,237 votes needed for the nomination.

The right of abstention is an absolute right. It is a right recognized by Robert’s Rules of Order; it is a right recognized in the U.S. Congress; it is, indeed, a right that any free man has — the right not to be compelled to cast a vote at all or, put another way, the right not to participate.

Robert’s Rules notes: “While it is the duty of every member who has an opinion on the question to express it by his vote, yet he cannot be compelled to do so. He may prefer to abstain from voting.”

Granted, the Republican convention does not operate under Robert’s, but rather under the procedural rules of the U.S. House of Representatives. Those rules — as is evident on every C-Span vote tally — always allow for someone to vote “present” (the equivalent of an abstention) rather than “yea” or “nay.”

tusk

Moreover, even the GOP’s own rules on the binding of delegates does not disallow abstentions. Here is the standing rule: “If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized.”

In other words, if your state’s primary would require than any vote cast by a delegate be cast for Trump, that delegate may not (on the first ballot) vote for Cruz, or Rubio, or anybody else. But note that while it precludes a vote “for any person other than the candidate to whom he or she is bound,” it does not preclude a decision not to vote at all.

This is both common sense and a basic tenet of representative government. There is no known theory of small-‘r’ republican government that allows an organization to count a vote as cast when it hasn’t been cast at all. There is no known way, under any understanding of voting rights, for a person to be forced to cast a vote against his will. (Even those few countries that have “mandatory” voting allow the voter, once at the polling place, to enter a blank ballot — an abstention. The requirement is to show up, not to contradict one’s conscience by casting a vote one does not desire to cast.)

This is arguably a First Amendment issue: Just as everyone has a right to free speech, everyone has a right not to speak at all. Compulsory speech — and voting is indeed a form of speech — is absolutely prohibited in these United States.

Now, it is true that the national Republican Party is a private organization. Courts are loathe to interfere in the internal rules of a private organization — and for good reason. But if a private organization counts as cast a vote that was not cast at all, it quite arguably commits fraud. Even a private organization is subject to laws prohibiting fraud.

It might be a tough case to convince courts to consider, but Republican National Committee Chairman Reince Preibus and all the party officials at the convention should understand that if they try to count an abstention as if it is a vote that has been cast for a particular candidate, they open the party, and the Trump campaign, to a messy court challenge that would probably be politically fatal regardless of the court’s actual, eventual decision.

Really, how politically tenable would it be to explain to the American public that it is fighting in court against the right of delegates to exercise what in a general election contest would be an absolute right not to vote? How tenable would it be to explain why their nominee, Trump, couldn’t even secure a majority at the party’s convention without resorting to the strong-arm tactics of compelling a vote rather than an abstention?

There is precedent for this interpretation, from the Republican National Convention just four years ago. There, a rule was in effect that did not allow the counting of votes for candidates who did not enjoy majority support for consideration in at least eight state delegations. But when some delegates voted either for other candidates anyway, or else chose to abstain, their votes were not counted for eventual nominee Mitt Romney, but rather were not counted at all.

One more point: If the convention chair does try to count an abstention as a vote cast for Trump, any delegate who abstained and who can get to a microphone has an absolute right to raise a Point of Order. A Point of Order absolutely must be recognized. If a Point of Order has been raised, no other business can be conducted at the meeting until the Point has been ruled upon. And any rule of the chair on a Point of Order can be challenged with a non-negotiable demand for a vote on the ruling.

Conclusion: If 1,237 duly seated convention delegates refuse to vote for Trump on the first ballot, either by voting for another candidate they were originally pledged to or by abstaining, then the party has no right to name Trump the nominee unless and until he receives 1,237 on a subsequent ballot.

Further note: It remains to be explained, perhaps, why delegates indeed ought to exercise their right to abstain until, once “unbound” on subsequent ballots, they can vote for Coburn or Cruz or somebody other than Trump. (And yes, Cruz fans and Rubio fans and Kasich fans could also see their man emerge from this scenario. Once the delegates are unbound, almost anything good can happen.) A few days ago, a coalition of anti-Trump groups and individuals, in a unified voice, released a column making a strong moral, ethical, and political case against Trump. It is well worth a read, right here, to see why “Donald Trump is no lover of liberty. Donald Trump is no respecter of the law. And Donald Trump is certainly no man of character.”

Trump must be stopped. As this analysis shows, he still can be stopped. And a fine replacement candidate can emerge, in the form of Dr. Tom Coburn.

 

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