Newt's Florida challenge and the GOP's sloppy rules

Newt Gingrich is challenging the plurality-takes-all allocation of Florida's 50 delegates to the Republican National Convention. Mitt Romney finished first in the January 31st primary with 46% of the vote, which means, according to rules adopted by the Florida state party rules, Romney gets all 50.

Republicans in Florida and from other states were complaining about the rule violation long before last Tuesday's primary. From January 25, in the Tampa Bay Times:

All it takes is a registered Florida Republican to file a protest with the RNC, and the party's contest committee would have to consider the issue when it meets in August just before the convention.

"August is going to be a very tense month for those of us on the committee on contests. We could be the group that everybody loves or everybody hates," said Fredi Simpson, an RNC member from Washington state who sits on that committee and also helped write the rules.

Like other RNC members, Simpson thinks the rules clearly bar Florida from being winner-take-all. At an RNC meeting in August, members of the Presidential Nominating and Selection Committee passed a resolution calling for the RNC to enforce its rules for proportional delegates on states like Florida that set primaries earlier than April.

"Florida ought to be proportional, and it is up to the RNC legal office to figure out how they do that. That was absolutely the intention when we wrote that rule," said Pete Ricketts, an RNC member from Nebraska who served on the RNC committee appointed in 2008 to draw up delegate selection rules for 2012....

Marc Cross, a GOP state committeeman from Osceola County, has already written to the RNC, urging it to review the matter, but the RNC has taken no action.

If Florida were allocated proportionally, Gingrich would be leading in delegates, by a big margin, and that lead would be guaranteed all the way to February 28, even if Romney got every single delegate in Nevada.

What's more likely to happen is a big mess that won't get cleaned up until right before the national convention in Tampa, and maybe not even then. The rules adopted by the RNC for the 2012 presidential primary process have succeeded in slowing down and lengthening the primary season, but the new rules failed to cover a number of scenarios, and the result could be a pre-convention mess involving a key swing state.

So let's explain the numbers first and then the rules mess.

In a statewide proportional allocation, Romney would have 30 Florida delegates, Gingrich would have 20, as Romney received roughly 60% of the combined Romney-Gingrich total. I'm assuming here the use of the typical 15% threshold, which a candidate would have to exceed in order to receive any delegates at all. Under that scenario, Santorum, Paul, et al., would not receive any delegates.

It should be noted that RNC rules don't mandate a maximum threshold to be considered proportional. Democratic Party rules mandate 15%, and many state Republican parties (including Oklahoma) have followed suit. New Hampshire uses 10%. Theoretically, Florida could've set 40% as the threshold; Romney would have received all the delegates under that scenario.

The two states combined, under the Florida GOP's existing rule: Romney 52, Gingrich 23. (Romney won 2 South Carolina delegates by winning a single congressional district.)

The two states combined, under a proportional rule for Florida: Gingrich 53, Romney 22.

Add in the New Hampshire results, and the revised total would be Gingrich 53, Romney 29, Paul 3, Huntsman 2.

(A combination of proportional allocation statewide and proportional allocation by congressional district would give yet a different total, but without results by congressional district, it's impossible to calculate.)

Florida has already been penalized for holding a primary prior to March 1. According to the rules of the Republican National Committee that govern the 2012 presidential nomination process, a state that binds delegates in any way prior to the March 1 loses half their allotted delegates, and their RNC members (state chairman, national committeeman, national committeewoman) won't be seated at the convention.

Florida's rules originally called for some of its delegation to be allocated winner-take-all by congressional district, and the remaining delegates winner-take-all based on the statewide primary result. But they also approved a rule that said, essentially, that if the RNC takes away half our delegation because of our early primary, we'll treat the remaining delegates as "at large" and will give them all to the statewide winner.

But there's also a rule requiring any state (except the four "carve-out" states) binding delegates prior to April 1 to allocate delegates proportionally. The rule doesn't specify how that should be done.

The four "carve-out" states are Iowa, New Hampshire, South Carolina, and Nevada. They're allowed to bind delegates as early as February 1, and they're not subject to the proportionality rule. That's why Newt's challenge to the Florida allocation won't cost him any delegates in South Carolina, which was allocated winner-take-all statewide and by congressional district. Two of the carve-out states, New Hampshire and South Carolina, lost half of their delegates by going before February 1. (Iowa lost nothing, because they didn't allocate any delegates as a result of the caucus night straw poll. The real Iowa delegate decisions are made at the June state convention.)

The response by the RNC's general counsel to the question about Florida says, in effect, there's not much more we can do to them:

By holding its primary on January 31, Florida has violated Rule 15(b). Like the other states in violation, Florida is suffering the mandatory penalties under Rule 16: loss of fifty percent of its delegates and alternates, and the RNC members from Florida cannot serve as delegates. In addition, the RNC Rules Committee imposed every available discretionary penalty - penalties related to convention seating, guest privileges and hotel location. Thus, all of the penalties authorized under the Rules have been imposed on Florida.

The rules governing the 2012 process were the product of a committee appointed after the 2008 convention. Rather than have a fight at the 2008 convention over a new primary calendar, the convention rules committee rejected the recommended plan by the RNC rules committee, approved a rule creating a special committee to present a proposal for an up-or-down vote by the Republican National Committee.

Here is the rule change recommended by the Temporary Delegate Selection Committee in June 2010 and approved by the RNC in August 2010:

Rule No. 15: Election, Selection, Allocation, or Binding of Delegates and Alternate Delegates

(b) Timing.

(1) No primary, caucus, or convention to elect, select, allocate, or bind delegates to the national convention shall occur prior to the first Tuesday in March in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may begin their processes at any time on or after February 1 in the year in which a national convention is held and shall not be subject to the provisions of paragraph (b)(2) of this rule.

(2) Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held, shall provide for the allocation of the delegates selected on a proportional basis.

(3) If the Democratic National Committee fails to adopt a presidential primary schedule with the dates set forth in Rule 15(b)(1) of these Rules (February 1 and first Tuesday in March) by December 31, 2010, then the dates in Rule 15(b) shall revert to the dates set forth in the Rules as adopted by the 2008 Republican National Convention.

You'll notice that they don't define the term "proportional basis."

The enforcement clause is Rule 16, which calls for the 50% penalty, loss of automatic seats for RNC members, and other potential penalties to be imposed by the RNC's standing committee on rules. That rule doesn't negate the "proportional basis" rule, but it also doesn't provide for additional penalties in the event a state violates both the proportional basis and calendar rules.

(You can read the complete Rules of the Republican Party here.)

Newt Gingrich is right to say that Florida has violated the proportionality rule. We'll see whether the Committee on Contests has the guts to enforce it.