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What Is a Brokered Convention? GOP Rules Favor Trump

If Donald Trump fails to win a majority of delegates, some Republican insiders say the party could use a contested convention to deny him the nomination.
Image: Donald Trump
Republican presidential candidate Donald Trump speaks during a rally at Macomb Community College, Friday, March 4, 2016, in Warren, Mich. (AP Photo/Carlos Osorio)Carlos Osorio / AP

If Donald Trump fails to win a majority of delegates in the presidential race, some Republican insiders say the party could use a contested convention to deny him the nomination in July.

There’s just one problem: The rules for that scenario still favor Trump.

The Republican National Committee’s convention rules arm a front-runner with two silver bullets.

First, they lock in a candidate’s delegate lead on the first ballot.

That means even if party insiders force Trump into a floor vote, he could still clinch the nomination when voting begins, before any long fight on the floor.

Second, the party’s draft rules block virtually all other candidates from challenging the top candidates on that first ballot.

Under the RNC’s pending convention rules, the only candidate likely to be eligible to initially challenge Trump is Ted Cruz.

Rules can always be changed, but for many talking up a brokered convention, it appears these hurdles may not have sunk in yet.

The Argument for a Floor Fight

Anti-Trump Republicans emphasize that if the primary ends without any candidate holding a delegate majority, the nomination can still be settled by delegates voting at the convention.

That is certainly true.

Trump may not formally clinch the majority when voting ends in June, especially if he fails to win remaining states by large margins. And insiders hoping to stop Trump stress that if no candidate wins on the first ballot, then delegates can change their candidate preference and vote for an alternative at the convention.

If no candidate wins a majority on the first ballot, the rules do free up most delegates to vote for any eligible candidate.

Since those delegates tend to be party loyalists chosen by state parties, not by the campaigns, the GOP establishment hopes they might bolt — causing Trump’s plurality lead to dissolve into a loss, as the majority unites around an alternative.

That entire plan, however, hinges on getting past the first ballot.

The rules make that very hard.

Convention Rules Favor the Front-Runner

On the first ballot, every delegate Trump won in the primaries is strictly bound to back him. There is no other option. If a Trump delegate tries to bolt on the first ballot, RNC Rule 16 mandates the delegate has effectively “resigned,” and their “improper vote” is “null and void.”

So Trump is likely to begin with a high floor.

He has won 43 percent of the delegates awarded so far. Imagine Trump finishes the primaries in a similar position, with 45 percent of the total delegates — about 1,110 delegates. For a contested convention, the RNC can demand he win a majority at the convention, in the hopes of beating him in a contested floor fight.

Many assume that gambit would lead to a series of balloting to stop Trump.

He would only need 127 more delegates, however, to win outright on the first ballot.

Trump could not take them from active competitors, whose delegates are bound by the same rule that binds Trump’s delegates. But there are two other piles of delegates up for grabs on the first ballot.

First, the RNC has over 100 “unbound” delegates who can vote for anyone, a GOP version of superdelegates. (There are 112 who are not bound by state rules, and some other delegates may also fit that category.) Then there are all the open delegates who backed campaigns that ended. For example, 11 open delegates were pledged to Bush and Carson. If Rubio drops out, that frees up another 153 delegates, according to the NBC News delegate count.

If Trump won enough of those delegates to cover the margin, he would stop a convention fight before it started. Game over on the first ballot.

Convention Rules Can Block Challengers

Those open delegates would also have very few alternatives to Trump on that first ballot, under the RNC’s draft rules.

Which brings us to Trump’s other silver bullet: Rule 40.

This "temporary" rule, established at the 2012 convention, states that only candidates who have won a majority of delegates from eight states may run for President at the convention.

Right now, only Donald Trump is close to that requirement. He has won the majority in six states.

Ted Cruz has won a majority in three states. He could conceivably win five more by summer.

No other candidate comes close.

Translation: This rule makes the "never Trump" convention plan even more unlikely.

Many of the “unity” alternatives floated, like Paul Ryan, Mitt Romney and John Kasich, simply don’t qualify under the draft rule.

So, if Rule 40 is applied, the only way to defeat Trump on the first ballot would be for Cruz to win enough states and have delegates rally around him.

That edge for a frontunner is not accidental — it was the whole point of the rule.

Romney Rules

DePaul University Professor Nick Kachiroubas, a parliamentary expert, says the RNC passed Rule 40 “so there could be less room for someone on the floor to bring up some candidate from nowhere to be nominated.”

The man behind the rule concurs. Ben Ginsberg, the former general counsel for the Romney Campaign, explains that he pushed the rule to prevent Ron Paul getting his name nominated, which could have embarrassed Romney.

The RNC raised the minimum threshold from five to eight states, thwarting any attention for Paul. Ginsberg says this year, the bar for adding candidates can be lowered or raised.

“That’s a rule that each convention has to pass for itself,” he says, “so this convention can put any number of states it wants in there.” Ginsberg stresses it was a temporary formula, and each new convention has the authority to set its own rules.

That is exactly what the RNC rules say on paper. The current rules, adopted in 2012, are divided between permanent rules and “temporary rules” that govern the convention. Rule 40 is in the temporary section, so it can be changed or eliminated by the Rules Committee at this year’s convention, or by a majority vote on the floor. (A majority can change or suspend any rule.)

This year’s politics, however, make it more complicated.

A Rules Revolt?

Jeff Berkowitz, who worked three conventions as an RNC official, says there would be a revolt if the convention rules are changed simply to stop Trump.

Asked about Ginsberg’s description of the temporary rules, Berkowitz laughed, saying “that’s right from a legal standpoint, but there would be a huge eruption at anything seen as the establishment stealing it from the rightful winner.”

Another Republican operative working with the Trump campaign, who requested anonymity to discuss a contested convention, said a floor fight would depend on “how the rules end up getting interpreted.”

“Typically it’s the nominee that sets the rules, so Ben set the rules last time, after some spirited negotiation,” the operative said, “and I honestly don’t know whether Ben’s rules stick.”

That statement reflects the turning tables: Trump backers want the rules Ben Ginsburg drafted for Romney, since they protect the frontrunner. The Stop Trump crowd wants a new rulebook, which can immediately offer delegates an alternative to Trump.

Behind the scenes, Trump has already retained GOP insiders with a grasp on how the rules shape the convention. His campaign counsel, Don McGahn, is a former Federal Election Commissioner who spent almost 10 years as general counsel to the GOP’s House re-election committee. He is a partner in the political law practice at the same firm as Ben Ginsberg, Jones Day.

Trump’s pushback is already going public. The candidate said this week that any attempt to engineer a contested convention would be "unfair."

As for the weeds of party rules, Roger Stone, the veteran GOP operative and former Trump aide, wrote a detailed attack on insiders exploiting the party rules for the conservative site

Rush Limbaugh has also been warning his listeners that the RNC could use Rule 40 to ensure "all of this voting doesn’t mean anything." Citing Cruz, the radio host says using the rules to steal a nomination would cause "a revolt at that convention like you can't believe."

Cruz is walking a careful line. In a potential two-person race after March 15, he might overtake Trump in the overall delegate count, giving him reason to oppose a contested convention.

If neither candidate wins a majority in the primaries, however, Cruz could be positioned to excel under restrictive rules where he is initially the only challenger to Trump.

Cruz tried to thread that needle Wednesday, telling Fox News’ Megyn Kelly he is fine with a contested convention that pits him against Trump if neither won a delegate majority in the primaries.

“If nobody gets 1,237 and you’ve got two front-runners,” he said, then a floor fight is legitimate.

“You’re fighting with the candidates that have earned the votes of the people,” Cruz said, “and it’s the delegates at the convention who elected to do that — that’s the way the system works.”

It is technically possible to imagine a contested convention that doesn’t fracture the GOP — if delegates quickly settle a plurality tie between Trump and Cruz. Many point to the 1976 convention, when President Ford was short a delegate majority, but won it on the first ballot.

The other alternative some Republican insiders have outlined, where a Paul Ryan or John Kasich is nominated to “stop Trump,” is unfeasible based on the rules and perilous based on the politics.

It’s hard to see how the party could change the rules to stop not one but two leading candidates, from different wings of the party, and then rally the majority around a “unity” candidate yet to be named.

Based on delegate math and party rules, it’s a scenario that looks less like a brokered possibility and more like Establishment Fantasy Football.

Correction: An earlier version of this article referred to 298 GOP delegates being unbound, instead of the 112 who are unbound under state rules.