Reforming the Contested Convention: Rethinking the Presidential Nomination Process

26 Pages Posted: 21 Sep 2016 Last revised: 22 Sep 2016

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: September 18, 2016

Abstract

The presidential nomination process used by the Democrat and Republican Parties is an ill-considered, unstable pastiche of competing components that generally operate in fundamentally different manners: the selection of delegates to the national convention (generally through state and district party conventions or other intraparty processes), and the determination of the presidential candidates for whom those delegates will vote (generally through state-by-state primaries and caucuses).

The ritual of holding primary elections and caucuses across the nation creates the widespread public expectation that the results of those proceedings — the will of the voters — will determine who wins each party’s nomination. Yet the national convention need not nominate the presidential candidate who received the most votes nationwide, won the most delegates, or prevailed in the most primaries or caucuses. The system gives delegates substantial power over both the rules of the convention and the choice of nominee that, were it ever used, could lead to the collapse of a party. And the mere existence of this power leads to suspicion of the party establishment, intraparty intrigue and discord, and uncertainty throughout the primary process that is unhealthy for both the party and the country.

The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and reduce friction among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes — perhaps a figure between 12 and 20 — to be placed into nomination.

Third, state parties should tie the various components of the presidential nomination process more closely together by adopting a blend of the Democratic and Republican Parties’ current approaches. The candidate(s) who prevail in a primary or caucus should be permitted to veto any delegates who may be pledged or bound to them under state party rules or state law as a result. Moreover, delegates allocated to a presidential candidate based on the results of a primary or caucus should be bound to vote for that candidate, at least in the first round or two of voting at the national convention. Votes cast in violation of a delegate’s binding should be treated as if they had been cast for the proper candidate.

Keywords: President, Presidential Nomination, Political Party, Primary, Caucus, Presidential Preference, Convention, Party Convention, National Convention, Political Convention, Nomination, Candidate, Pledge, Bind, Bound, Delegate

Suggested Citation

Morley, Michael, Reforming the Contested Convention: Rethinking the Presidential Nomination Process (September 18, 2016). Fordham Law Review, Vol. 87, 2016. Available at SSRN: https://ssrn.com/abstract=2840497

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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