May 12, 2012
We noted last week that it’s still possible for Ron Paul to score an upset win over Mitt Romney.
Indeed, the nonpartisan Center for Voting and Democracy (CVAD) reported last December that the the legal counsel for the Republican National Convention said delegates can vote for whoever they want at the National Convention:
As set out in the Rules of the Republican Party, delegates have the ability to vote according to the delegates’ preference, even if that is contrary to the outcome of each state’s primary. According to one source, the legal counsel for the Republican National Convention in 2008 stated: “[The] RNC does not recognize a state’s binding of national delegates, but considers each delegate a free agent who can vote for whoever they choose.” Thus, if a delegate were to challenge his or her ability to vote as a free agent, he or she would have grounds under Rule 38.
Ironically, the legal counsel rendered her opinion when a Utah delegate wanted to vote for Mitt Romneyin the face of the Utah delegation as a whole going for John McCain.
For further clarification on the meaning of Rule 38, it is instructive to look to the debate in 1964 when the RNC debated whether to strike the Rule 38 language from a proposed amendment that was adopted that year. The debate begins on page 64 of this source. The RNC voted 59 to 41 to keep the rule in the amendment, noting that it helped to clarify a longstanding practice that a delegate was free to take exception to the roll call, and was free to vote his or her preference. Those who sought to strike the rule feared that its inclusion in the rules would give delegates freedom from both a non-existent legal obligation and a moral obligation to vote according to instructions from their state. However, even these opponents of the rule admitted that there never has been any legal obligation for a delegate to do so.
In other words, all Republican delegates – no matter what state they are in – can vote their conscience … even if someone tells them they have to vote for a particular candidate.