Wednesday, May 28, 2008

DNC Lawyers: Can't fully seat FL and MI

WE'VE MOVED! Democratic Convention Watch is now at

DNC lawyers have weighed in on the FL & MI debacle:

A Democratic Party rules committee has the authority to restore delegates from Michigan and Florida but not fully seat the two states at the convention as Hillary Rodham Clinton wants, according to a party analysis.

Party rules require that the two states lose at least half of their convention delegates for holding elections too early, Democratic National Committee lawyers wrote in a 38-page memo.

The memo was sent late Tuesday to the 30 members of the party's Rules and Bylaws Committee, which plans to meet Saturday to consider the fate of convention delegates from the two states. The party is considering plans to restore at least some of the delegates to make sure the two important general election battlegrounds will be included at the nominating convention in August.

The analysis lays out merits on all sides of the argument of how many delegates should be seated and how they should be divided. And it underscores a prickly problem — if the Rules and Bylaws Committee decides to restore any of the states' delegates, there is not a simple way to divide them between Clinton and Barack Obama. - AP
A couple of things. First, there are lots of simple ways to divide the delegates.

Second, I haven't seen the analysis, but I thought the RBC was free to come up with any solution they wanted. And I'm curious - if the RBC comes up with a solution that the DNC lawyers don't like - what is the DNC going to do? Sue its own RBC committee?

Update: TPM has the memo.

Al Giordano at The Field has the analysis.

Update: Here's a full PDF of the memo.

Update: A judge has ruled that the Democratic National Committee has the right to determine whether to seat Florida delegates. This is the case that Vincent DiMaio filed in 2007 and then filed for a Motion for Summary Judgment after the case was dismissed.

Previous posts on the RBC and MI/FL:
The Michigan 36
RBC Meeting is open to the public
Florida and Michigan Delegate Status
FL & MI By The Numbers
Florida and Michigan superdelegates
RBC Member predicts Florida will be seated at 50%
Rules and Bylaws Committee membership
DNC to hear MI and FL challenges on May 31st


Unknown said...

If the DNC's lawyers are like any other organization's legal team, then their opinion on the rules of the organization is simply their legal interpretation of the rules, and no court will necessarily defer to it in a civil suit.

The purpose of the lawyers is to make sound legal suggestions to the non-legally trained decision makers. There's no guarantee a court would agree with them if, say, michigan or florida filed suit against the DNC.

Its not likely that the DNC lawyers would sue their own RBC, as the lawyers are simply on staff to advice the RBC.

However it is likely that the RBC would take what their lawyers recommend seriously.

Unknown said...

The RBC isn't strictly bound by the DNC legal ruling, but they will likely pay close attention to it so as to minimize legal challenges from the campaigns.

The RBC makes the rules and the rulings; they stripped the FL and MI delegations and waivered the NH, SC, and IA violations - they could do just about anything on the 31st. However, changing the rules after the contests are over will open the doors to challenges from the campaigns (should they choose to do so); I'd say the DNC ruling effectively limits how far they should go.

CathyNYC said...

Now I have a question: following Les, if the RBC does anything other than leave FL/MI stripped, it counts as a change post-contest. For its own reasons, the party has as a goal the seating of the FL/MI delegations. If that change hurts one party and helps another, can the party who is *helped* complain (legally, plausibly) about the form or the substance of the *help* as a post-contest change?

zemog13 said...

This post is from "A Democratic Party rules committee has the authority to restore delegates from Michigan and Florida but not fully seat the two states at the convention as Hillary Rodham Clinton wants, according to a party analysis.

Party rules require that the two states lose at least half of their convention delegates for holding elections too early, Democratic National Committee lawyers wrote in a 38-page memo.

The memo was sent late Tuesday to the 30 members of the party's Rules and Bylaws Committee, which plans to meet Saturday to consider the fate of convention delegates from the two states. "

If this is true, where did the DNC get the audacity in the first place to say they were stripping all delegates from MI and FL. Are they just making up the rules as they see fit?!?!

Amot said...

When it comes to the prickly problem I don't think DNC lawyers meant simple division. I think they referred to any solution that includes redistribution of the pledged delegates. In fact all FL pledged delegates were named, but MI has still to name its statewide delegates. And since no one expects redistribution in FL, the 'prickly' problem is not that prickly. If any redistribution is proposed and accepted and/or part or all of the uncommitted delegates are assigned to Obama, this is what can be done:

- Obama gets allowed to withdraw any CD pledged delegate, assigned to the uncommitted, and propose new names, loyal to him (I don't think he will use this at all since only few delegates seem not real supporters);

- Statewide delegates are redistributed. For example, if 69/59 plan is approved, Clinton will receive 2 PLEOs and 2 at-large less and they will go Obama. Those delegates are not named yet, so it is easy thing to be done.

About the legal issues - RBC is allowed to denounce any penalty and in the case of FL it is tricky but they can be actually seated as is. It is legal; the question is 'is it good for the party and fair to the 48 states'. I believe the state party will be pleased with 100% super votes and 50% pledged delegates (half vote). In that case regarding FL there will be no open legal issues.

MI is a state where any seating above 50% will be troublesome. The rules really give no back door for less than the minimal penalty of 50%. However RBC can totally erase primary results in MI and seat the delegation at full according to their own allocation. 69/59 is such a solution. It also solves the problem of how the uncommitted go to Obama. All RBC has to claim is that any formula they apply is fair toward voters' preferences. Here they can use poll data, political analysis or any other meaningful method. The other positive if MI primary results are neglected is that RBC can seat MI delegation according to the voters' preferences now. And, finally, if RBC use their own formula, legal issues concerning redistribution or allocation of uncommitted to Obama don't exists (or are extra weak). BTW rules never say that any decision must be fair to the candidates - it only has to be fair to the voters!

Summary: IMHO RBC will decide to apply minimal 50% penalty to FL pledged. They will rule that superdelegates must have full vote in both states. And they will announce MI primary results are illegal (and only advisory) and seat the delegation according their own formula, acceptable for both camps. I believe that will be 69/59. One thing both candidates can't do is attack such decision. I am sure Hillary will disagree but the chance to successfully appeal it is ZERO.

Finally, I believe that between June 7th and June 10th Obama will have the magic number of 2209 delegates if we count FL and MI.

CathyNYC said...

"lose at least half" = lose half or more up to whole.

Amot said...

this is the answer of your question - RBC/DNC are due to judge fair to the voters. Maybe it will be not fair to one or more candidates, but there is no ultimate fair decision. The only people that can really protest are the voters - and so far voters are the ones that start legal issues. And it is not really post-contest change. Believe me or not, it turns out that the primary season is the only game when rules can be changes after everything is over!

GDB said...

Amot, I appreciate your detailed analysis, but it doesn't fit with the AP story. The story claims that the DNC lawyers insist that "the two states lose at least half of their convention delegates for holding elections too early." Note it says "the two states," so it is referring to both MI and FL. And it says lose half of their CONVENTION delegates, which seems to mean supers and pledged. How could this allow them to seat the supers from either state in full, or to adopt the 69-59 idea in MI? I think perhaps the Rules committee can't do that kind of thing, but then after Obama is the nominee he can decide to be more forgiving later on. (Control of the convention shifts to the nominee in July).

If this is right, then the FL decision is easy - cut the delegates in half, which means Hillary gains 18 pledged and maybe 5 supers net. That's 23, but then Obama will get at least some Edwards delegates, so Hllary will net about 20 in FL. In MI the spread is 18, so if everything is cut in half it goes to 9. Hillary may net 2 or three supers, but Obama will get some Dodd/Kucinich delegates. So, Hillary will gain about 10 in MI for a total net gain of about 30 for the two states combined. That puts Obama about 77 away from the eventual magic number. He'll get 40 from the primaries and then will need about 35-40 superdelegates out of the 200 remaining. That will be no problem.

Hollywood Dodger Mark said...

So it looks like with the new Magic number being 2210, both candidates will be far short of the number needed to nominate. I guess it will go to the convention to one or two ballots and anyone can win. Weird. But Hillary will have the popular vote and that may sway many supers. Yikes!

GDB said...

Hollywood --- no. 2210 is the one number we KNOW it won't be. 2118 is the most likely number.

Jeremy Burton said...

Agree with Amot...The Delegate selection rules very clearly give the RBC a lot of flexibility for both more severe penalties beyond the automatic 50% penalty and creative solutions to craft new delegations.

I wouldn't read too much into the specific language of the AP article, the AP is not exactly the word of God.

One thing that boggles the mind is the constant threat/specter of legal action if parties are not happy with how this turns out. The Supreme Court has pretty consistently ruled (on first amendment grounds) that, as private organizations, the DNC and the RNC can pretty much conduct their nominating processes in any way they see fit without interference by the state parties and the states themselves. That's not to say that the DNC, for example, has the right to force a state to hold a primary (or a state party to hold a caucus) on a certain date, but they have a pretty established right to just ignore the results of such a primary, and stripping delegates is really the only leverage the DNC has over the state parties. If the DNC chose pick its nominee out of of a hat of names, it could legally do so (of course this is contingent on the willingness of state parties to sponsor such an arbitrarily picked national candidate for general election ballot placement, but you get the picture).

Hollywood Dodger Mark said...

The only number I am hearing is 2210.

Hollywood Dodger Mark said...

Wait, I see what you mean, the so-called "Republican option" as CNN is calling it. I get it.

Tim Fry said...

The only number I am hearing is 2210.

2210 would only happen if all FL and MI delegates are seated. It is highly unlikely that happens. Most likely some punishment is given, so the magic # will be smaller. What that is, we have to wait till Saturday.

Amot said...

First, rules state there is a minimal automatic penalty of 50% for timing violation. But they also state this penalty can be reduced. So full seating is possible for FL and MI, though I believe FL will get half vote each.

Second, the penalty is about timing violation. If MI results are ruled illegal, than RBC/DNC will allocate delegates according to 'virtual' primary. But this primary will not be time violation - it will be virtual and up to date. So they can skip the penalty.

I don't have the exact memo of the lawyers, but 30 pages doesn't sound like 'seat them 50% or less'. What AP wrote are partial quotes if not paraphrase and I wouldn't trust that much.

Jeremy Burton said...

Amot - While I agree with your point that creating a new MI allocation would technically cure the violation of the Feb. 5 - June window and would therefore not require a 50% cut, I think it would be cosmetically and politically difficult to assess a penalty to Florida, where the state party was at the mercy of the Republicans (not that the Dems didn't go along, but they really had no power to correct the situation later since the state GOP was comfortable with a 50% penalty), and there was no recent experience with party-sponsored caucuses in the state, while giving no penalty to Michigan, where Sen. Levin, the Dingells and Mark Brewer have been involved in a long battle with the DNC over the window exemption for NH and IA, where there has been a long history of party-sponsored caucus/primaries, and where the state party orchestrated this entire situation. Maybe it will happen, but it's difficult to imagine if you put the current dispute in the context of the greater battle over the structure of the nominating process that has been going on for years and will most likely continue for several election cycles.

Amot said...

the problem with FL, as many other fellow bloggers have stated, is that local Dem PL didn't try hard enough to change the date. The record shows that all Dem state senators and representatives voted for the early date and only two from GOP voted against. The other thing is that we could have party run primary, expensive decision but possible one. The only strong point in the claim penalty should be reduced is the turnout was really big and results were similar to the polls. But the rules say turnout must be ignored and only efforts to move the date considered. They were weak... And if MI is seated at full according to virtual primary, someone has to be punished after all - therefore 50% pledged and 100% supers FL (would be fun if the supers get the half vote and the pledged - full, but do you believe that will happen?).

Jeremy Burton said...

I'm not calling for no penalty for Florida, but I think that regardless of the rules technicalities, the RBC will not penalize Florida more than Michigan in terms of number of delegates. At the end of the day, the RBC can pretty much do what it wants, obviously subject to overrule by the standing credentials committee and then the convention itself.

I don't disagree that the Florida Dems supported the original move, and I don't disagree that they didn't make a full effort to change the law once their selection plan was rejected.

But there's a big difference between spearheading the effort and going along with the majority party. Does it really matter that the Florida Dems went along with the GOP-led effort? If they had fought it, would it have mattered? I think you have to take political reality into account. It's not like the Florida legislature is just barely dominated by the GOP, it's not even close.

This was not the case in Michigan. Carl Levin (senior senator from MI), John Dingell (senior rep from MI and the dean of the entire house) and his wife Debbie and Mark Brewer (state party chair and DNC Vice-Chair) spearheaded this entire effort going back to 2004, when Terry McAuliffe essentially talked them down from the ledge with a promise that after the convention, a committee would review the timing structure of the nominating process. This was done, and SC and NV were sanctioned as early primaries. The Michigan Dems were not happy with the outcome, so they moved up their primary for 2008. Whether you agree with them on principle or not (and I do agree that the position of NH and IA is unfair), it is difficult to argue that they are not significantly more culpable than the Florida Dems.

Also, a late party-run primary/caucus was a much more practical solution in MI vs. FL, given that they conducted one in 2004 and (I believe) a few cycles just prior. Running a party-sponsored process in a state as large as Florida where both the party and the voters are inexperienced with such a process is a recipe for a bigger disaster.

At then end of the day, I'm pretty confident that both states will be penalized 50% pledged and add-ons, but with full votes for unpledged PLEOs. Some allocation will be made up for MI and Obama will get to approve all delegates there (I'm sure they'll be encouraged to accept as many of the already chosen delegates as is practical). And this is not because this is the right solution, or the fair solution, but because it's the politically expedient solution for almost every party involved. And we'll repeat the whole debate in a year or two once rules are drawn up for 2012.

The funny thing is, I'm sure no one expected any of this to matter, as no one really expected the race to go this long. In 2004, when the GOP had the 50% penalty in place, did they actually penalize anyone? Of course not, because there was no meaningful nomination contest.

p smith said...

This legal analysis is a red herring, it is nothing more than interpretation as to what should happen. That said, it accords nicely with what would appear to be the inevitable outcome here.

The RBC and DNC have three priorities; (1) to seat the FL and MI delegates in some way so as to avoid damage to the nominee's chances in November (2) to find a solution that Obama and Clinton cannot reasonably object to and (3) to find a solution that punishes FL and MI in some way to ensure that the DNC's rules retain at least some influence going forward and avoid other states repeating the feat in 2012.

By seating half the delegates in accordance with how they actually voted and by giving Obama the uncommitteds, they comfortably achieve the first and third objectives. As for the second objective, this is an outcome that Obama's camp will accept even though it will mean meeting Clinton more than halfway. The only issue is Clinton who will be left arguing that the delegations should be seated in full and that Obama should not get the uncommitteds. Such an argument defies not only her previous statements on the issue (and McAuliffe, Ickes and others) but is also so palpably unreasonable that every objective news organisation, journalist and blogger who is independent of her camp, will reject her position.

People will say that if she is so concerned with ensuring that the two states are represented and their votes are respected then why is she now standing in the way of a solution that is more generous than what she herself was prepared to allow earlier this year.

To me, this whole exercise is a no brainer. They will be seated 50%. That is her best day in the office. The target will then be set and with another 30-40 superdelegates, this thing will be done.

p smith said...

For those who are interested, here is an extract from Politico who have interviewed members of the RBC ahead of the meeting this weekend. Reading between the lines, I see the 50/50 split as the clear favourite although I have a slight worry that by openly considering the 50/50 split at this stage, the Obama camp will allow the Clinton camp to use that as the starting point for negotiations.

From Politico:

"DON FOWLER, South Carolina, committed to Clinton: “A solution I think acceptable to both states is to seat the full delegations, with each delegate getting a half-vote.

“I would be inclined to go for it. I would listen very carefully to what the Clinton campaign wants, but I do not turn over my heart and soul to them. I observe some limitations.

“There are a lot of questions that go beyond the mere politics of whether this helps Hillary or does this hurt Obama. The integrity of the process is involved here. If we meet this weekend and we act like a bunch of Katzenjammer Kids and throw things at each other, even if we reach a solution, that is going to make us look bad.

“I am told the place [the Marriott Wardman Park Hotel in Washington, DC] is going to be packed with supporters of the two campaigns. I have a great apprehension that we are going to look like a bunch of people who can only holler and scream and can’t do what is right for the party.”

RALPH C. DAWSON, New York, uncommitted: “We’ve got to try to fashion a solution that takes into account not only the people who voted in Florida and Michigan, but the people in the states that followed the rules.

“By and large the Clinton people say they are for seating all the delegates based on the beauty contests that were held in Florida and Michigan. The people representing Sen. Obama have indicated they believe the fair way to do this under the circumstances is to split the delegations 50-50, since those weren’t real races.

“I am not prejudging the matter. We have to have a solution where the integrity of the process remains. We have to have a process in which all of the states feel the rules have been fairly administered.”

ALICE GERMOND, West Virginia, uncommitted: “Unfortunately, we have been brought to seeming chaos, but I am not sure that the situation is as chaotic as some would like to make it. There are some thoughtful people here who believe what we do Saturday will impact whether we have real chaos in 2012.

“We are grappling with a solution that is fair to both candidates and to the 48 states that abided by the rules. We also want to reach out to the voters of Florida and Michigan who did not cause these troubles. I anticipate that we will have a convention that seats all 50 states.

“What is really unfortunate is that here it is the end of May, and we are talking about the process instead of John McCain.”

ALLAN KATZ, Florida, committed to Obama: “I think there will be some kind of compromise that seats Florida and Michigan in the 50 percent range. Florida and Michigan both violated the rules, that is a fact and because of that there has to be some kind of penalty.

“I think a 50-50 split of the delegates would be fair. The contests were beauty contests and not about selecting delegates. However, having said that, the reality is that we live in a political world and so there may be some apportionment of delegates that favors Clinton over Obama, but not one that changes the outcome of the race.

“Whatever happens Saturday, I think everybody will be a little unhappy. Which probably means it will be the right solution.”

Unknown said...

One question--why does seating all of the supers and half of the pledge seem likely? Am I right that this is the original (pre-2007 RBC decision) rule? And am I right in saying that it takes away half the pledged delegates and all of the supers from the defiant state?

Finally, if the intent is to reflect the will of the voters but to exact a punishment for violating the rules, what sense does it make to increase the relative role of the supers?

I'm not trying to make an argument here either way; I'm just trying to understand the rules and the logic.

Amot said...

you have the correct information. The problem is RBC members are party insiders as most supers are. Therefore it is unlikely they strip the right to vote of the fellow supers. Not fair, but most probable scenario.

Susan said...

I believe that the RBC will jump at the chance to blame a 50% reduction in delegates on the lawyers. That gets them half way to their decision with someone else to blame.

What I'm envisioning is the MI proposed 69/59 split, BUT with each of those delegates only getting 1/2 vote (so Clinton gains 5 on Obama in MI). Florida would be seated as voted at 1/2 vote per delegate.

What I am not clear on is if the lawyers say the 50% rule must stand, then doesn't the complete elimination of superdelegates also have to stand by the same legal logic? Yes, they are party insiders, but they are largely the exact same people who caused this problem in the first place. Other than the Clinton campaign's faux outrage, I don't think anyone would have a problem with punishing the insiders who set up this debacle.

kitchin said...

The rules say the minimal penalty is to _remove_:

* 1/2 the pledged delegates, rounded up
* all the normal superdelegates (26FL, 23MI)
* none of the Add-on superdelegates (3FL, 2MI)

I haven't read the entire rules, but I did see parts about adjusting for equity and fairness. Also, it states that the above penalties are _minimal_. But then waivers must be possible too, as mentioned above. Maybe those are pre-election waivers.

kitchin said...


* 1/2 the pledged delegates, rounded up
* all the normal superdelegates (23FL, 27MI)
* none of the Add-on superdelegates (3FL, 2MI)

Dan Werner said...

If the new magic number is 2118 (most likely), then Obama will reach it on or before June 7.

Thus, there is only one crucial question, as far as I am concerned: will the Clinton campaign actually accept the RBC ruling as legitimate, and as the final word? Will they come out and say--in unequivocal terms--that they will NOT take it to the convention? Will they post some sort of statement on their website so as to sooth their supporters? That's what I'm going to be looking for this weekend: some indication from the Clinton folks that, yes, we are about the reach the end-point in this primary process. (I'm going to keep a close ear out for McAuliffe, who has said repeatedly that "we will have a nominee in June".)

Remember, as Rahm Emmanuel said, that it is very important HOW the loser loses. This weekend will be a crucial test to see how much (if at all) Clinton cares about party unity. Any statement other than "we accept the RBC ruling as fair" will be an encouragement to her supporters to continue being bitter and to regard the nomination as being "stolen".

Pelaton said...

Dan: ....Will Obama?

Unknown said...

It doesn't matter what's the original rules or what's the laws. The only rule that matters is the one that all the candidates agreed with before the start of the contest.
If such rule changes at the end of the contest to change the result, how can anyone say this is a fair game?
Isn't it as simple as that?

Dan Werner said...

No question about it, pelaton! I expect to see a swift response from the Obama campaign (in media interviews, on the BO website, in an email to supporters). Something along the lines of, "We thank the RBC for their work...we accept this decision as fair...and we are now XX delegates away from the nomination."

Privately, of course, the Obama folks may resent having to make a compromise on this matter; but publicly they're going to present a unified front.

The proof is in the pudding, too: already, the Obama campaign is explicitly discouraging supporters from protesting at the RBC meeting. I think that's a classy move, attempting to restore a little calmness to this process. By contrast, actively encouraging protests (as Clinton surrogates are doing) is not a good way to promote party unity.

Susan said...

Since the bulk of the race now is for super delegates, Obama has once again seriously outmaneuvered the Clinton campaign.

She sent tout calls for protesters who will disrupt and embarrass the DNC committee meeting. After she had done this and had gotten quite a bit of publicity for it, Obama called for his supporters to NOT show up or protest.

Which one do you think DNC insiders will appreciate?

DocJess said...

And Florida just lost another court case against the DNC.

Unknown said...

According to the DNC rules, the minimum penalty should be a 50% loss of pledged delegates and a 100% loss of unpledged delegates... until you recognize the glaring typo in both instances of the document ( and

Rule 20.C.1.a:
"the number of pledged delegates elected in each category allocated to the state pursuant to the Call for the National Convention shall be reduced by fifty (50%) percent, and the number of alternates shall also be reduced by fifty (50%) percent. In addition, none of the members of the Democratic National Committee and no other unpledged delegate allocated pursuant to Rule 8.A. from that state shall be permitted to vote as members of the state’s delegation."

That's fantastic. Except for the fact that unpledged delegate allocations are handled in Rule 9.A (Rule 8 deals with pledged delegates). This may be why the DNC lawyers are not mentioning it - that typo in the rule reference creates 3 seating scenarios for superdelegates:

1. Remove all superdelegates except add-ons (i.e. enforce removal of all "9.A" delegates).
2. Seat all superdelegates (ignore the reference completely due to the typo).
3. Sanction only the "members of the Democratic National Committee", since they are mentioned specifically by name.

Scenarios 1 and 2 have already been looked at. Scenario 3 would leave us with:
FL: 11 unpledged superdelegates
MI: 11 unpledged superdelegates

I think that this bit of minutiae (that being the typo) will likely be ignored in either case - this really seems to be a question about making the voters in FL and MI happy enough to vote Democrat in the fall. Giving a Governor or Representative a superdelegate vote doesn't accomplish that in any case.

Ray said...

So, what we have so far is a Florida court ruling that the DNC can seat NO delegates from Florida if it so chooses, and legal advice, given after thorough analysis by the DNC's attorneys, saying that the committee is legally unable to seat more than half of either state, absent a prolonged process that would end no sooner than the convention.

Pretty clear-cut stuff to me.

Matt said...

A link to the memo has been added to the post. What does everyone think?

DocJess said...

I think that the DNC is comprised of people who have political careers, and don't wish to look for a new line of work.

Therefore, I think that they will look for ways that split the loaf in ways that offend the fewest number of people.

For Michigan -- they can use the State Committee percentage distribution for pledged delegates, and use the half-count. Alternately, seat the whole delegation with half a vote each. Then, allow all the Supers to vote. That should mollify Michigan, and hopefully they will be properly chastised. Remember, the enabling legislation for their primary was found invalid by the court a few months back -- and while the case was specific, and didn't directly address election validity, the judge specifically pointed out the non-severability clause in the enabling legislation.

As for Florida -- there is nothing that the DNC can do that will make Florida happy. NOTHING. (Especially since it's their own damn fault...)

I've looked at the GE map, and Obama doesn't need Florida to win. Not even close.

Therefore, strip their Supers (the elected members of which were IN FAVOUR of early voting), half their delegates, and tell them to go away.

As an aside -- I'm betting that as we credentialed Obama Nation members are going into the hotel in our business attire, we'll be facing all of those "hardworking white Americans" protesting for Clinton outside. I'm bringing a camera.....

Minerva S said...

VoteNazis - No Votes for You!

Reallocating our votes to fit what they want to have happened is not having our votes count. Why not just send delegates proportional to how we actually voted?

MI Dem chair told us to vote 'uncommitted' if our candidate (flipped us off and) took his name off the ballot.

DNC now wants to give Obama more delegates than if all the 'uncommitted' went to him (when many were for Edwards, etc.)

First Superdelegates exist in case we're not smarts enough to vote for the right one (notice how they always point out how stoopid and unedjakated Hillary voters are).

Now DNC wants to 'count' the votes by making up numbers.

Giving 1/2 of what is earned is fair. Giving more than might have possibly could have been earned is a complete disregard for the voter, and if they do that it's worse than FL '00 ... and we should wake up look for a party that represents the people instead of it's own interest!

Dink Singer said...

I'm not sure what was else was contained in the "38-page memo", but analyzing the seven-page RBC "Staff Analysis" for which a link was provided, I am in complete agreement on the first point where they conclude "it seems clear that while the RBC could revoke its additional sanctions, leaving in place the automatic sanctions of Rule 20(C)(1), it does not have the authority to reverse or prevent the imposition of those automatic sanctions." The Delegate Selection Rules are binding and they automatically strip Michigan and Florida of 50% of their pledged delegates and all of their unpledged (super) delegates.

Amot says that the automatic penalty can be reduced by the RBC, but neither the staff nor I could find that in the rules.

The staff did mention the Ausman challenge based on a provision of party Charter that may not allow the DNC members to be deprived of their Unpledged Delegate status. That question was not raised in the Michigan challenge, but the staff found merit in arguments both for and against Ausman.

If the RBC decides to revoke the additional sanction, the question of how to allocate the remaining delegates is very, very difficult. Matt says there are many simple ways to do this, but remember the rules require "Fair Reflection of Presidential Preferences". How can that be achieved in a state that held a questionable primary with only some candidates on the ballot? For example, we know from exit polling that a significant number of primary voters who voted for Clinton would have voted for Obama or Edwards if they had been on the ballot. The staff lists this as an open question, but offers no alternative other than using the January 15 results.

If it is decided to allow the results of the primary to stand the staff rejects awarding the Undecided delegates to Obama but has a very interesting suggestion about what to do about the uncommitted delegates: "the RBC could grant to those candidates -- the ones who withdrew their names from the January 15 primary ballot [Obama, Edwards, Biden and Richardson] -- collectively the right to exercise candidate right of approval with respect to the eligibility of persons to be considered to fill the "Uncommitted" pledged delegate slots."

My guess is that the RBC will follow the staff's advice and the battle will continue to the credentials committee.

Dan Werner said...

Dink said, "My guess is that the RBC will follow the staff's advice and the battle will continue to the credentials committee."

I do hope you're wrong about this. While the credentials committee can meet in July to consider this, its conclusions would have to be voted on at the convention in August. At that point, we'd be talking about serious, irreparable divisions in the party and massive protests on the streets of Denver. I remember hearing at one point that Clinton herself was not inclined to bring this to a floor fight. I hope that's true, and that she will gracefully exit at the end of next week.

Barry Scott said...

I think we're all agreed that "hearing at one point that Clinton herself was not inclined to bring this to a floor fight" in no indication of what she'll do.

I take solace in knowing that the majority of elected superdels support her, that they do NOT want this to go on to Denver, and that they will do whatever it take to have it done sooner rather than later.

I think she'll push her luck further and to the point of even greater embarrassment, but will have to consider maintaining some thread of dignity and promise for a political future. Short of that is career suicide. Not that she wouldn't go there. Just hoping.

edscottwy said...

I hate to be a pessimist, but the words and actions coming out of the Clinton campaign clearly indicate that she will accept only the full seating of delegates according to the non binding MI and FL primaries. Unless her super delegates abandon their support for her, this is going to the convention floor. Next week we will truly know whether she is pursuing the "ALL IN" strategy.

I personally do not want this to happen, because I feel it is clear that she lost the delegate race that she and all the candidates agreed upon. It troubles me to think that someone with such poor integrity and management skills could hi-jack the POTUS.

DocJess said...

I have no doubt that Hillary has every intention of undertaking a floor fight.

So, instead of thinking about what the DNC can do, let's think about what WE can do to circumvent that.

First -- this is not 2004 or any year before that -- we have the progressive left wing blogosphere, and we are strong, and communicative.

We must learn to operate instead of nameless, faceless, strangers with similar opinions as a true force of action.

CALL and WRITE your local DNC reps, CALL and WRITE your Congressional Reps and Senators (if they're Dems) and explain that allowing a floor fight can spell the end of the Democratic Party. The splintering would be irrevocable.

Include a note or two to Howard, Nancy, Harry and the other so-called leaders to GET OFF THE POT.

Tell them you VOTE and you CONTRIBUTE and they need to get behind our candidate.

The SOLE AND ONLY thing that prevents a successful floor fight in August is if the Obama count is so high as to prevent Hillary from approaching it. And then, when she says "but people can change their minds", the pledged and super delegates all say "But we shall not -- we are standing with our party."

We need to get off the blogosphere, and get on our phones -- tell them WE ELECT THEM, we financially support the party, and WE ARE WATCHING.

Use the power of the many, harnessed together. Assume the worst, that Hillary would rather destroy the party than anything else.

Dink Singer said...

I found more of the RBC staff analysis here.

The analysis of the first Florida challenge (DNC Unpledged Delegates) gives plenty of room to justify a rejection of the challenge. For example "it can be argued that taken as a whole, the language of the Charter cannot fairly be read to require that any category of delegates actually be seated at the Convention if that category is chosen under a Delegate Selection Plan which itself violates the Delegate Selection Rules."

In discussing Florida delegate selection if half the Pledged Delegates are to be seated the staff points out that "reportedly the Obama campaign did not participate at all in the selection process, including the candidate right of approval process, because the campaign did not recognize the legitimacy of the primary." and suggest the Delegates would have to be selected again.

I agree with you, but so far I find little reason to hope the Clinton camp will be reasonable. When everyone (including the DNC chair) was telling Jerry Brown to get out in 1992, he went all the way to the convention and somehow Bill Clinton has decided this is payback.

Hollywood Dodger Mark said...

Dan: I am a little confused, how does Obama get to 2118 by June 7th exactly?

Amot said...

I read the full MI memo.
The lawyers say:
1 - RBC can not efectively restore the delegations to full voting power. 50% is the maximum allowed. Only Credential Committee can rule otherwise
2 - Lawyers have no clear opinion if Jan 15 results are fair representation of the voters preferences thought they hint 'NO'
3 - There is legal way for Obama to gain control of the uncommitted slate
4 - 'halve the numbers and allocate' is more legal than 'allocate and halve the votes' but both are applicable
5 - the process of chosing the CD delegates must be repeated so they can be vetted
6 - supers can and must be stripped according to the Rules and cannot according to the Call, and it is not clear which is the strongest

Summary: 59/69 can be applied but with 50% for the pledged delegates. If Obama makes agreement with Edwards and the other withdrawed form the ballot candidates, he can take all uncommitted and replace some of the chosen if he wants to. Supers can be restored to full power but CC will have to verify it probably.

The decision will be final only if Clinton's campaign agree. But they will not, of course!

Dan Werner said...

Hollywood Mark:

Here's how Obama gets to 2118 in short order.

Right now, he has 1980 total delegates.

He will get approximately 40 more pledged delegates from PR, SD, and MT.

Assume that the RBC decides to apply the 50% penalty to FL and MI (and to give Obama all the uncommitteds from MI). That gives Obama another 61 pledged delegates, and 5 supers.

Add all this up: 1980 + 40 + 61 + 5 = 2086. In other words, he will be just 32 supers short of the 2118 magic number. Can Obama muster up 32 supers in the next seven days? You bet.

And my analysis does not even factor in the Edwards delegates from FL.

kitchin said...

Dave it is a typo, I was really surprised to find it too, and posted about it here a few weeks ago. But typos do not make "law" (or whatever this is) when the meaning as a whole is clear. Then the 5 Add-on superdelegates should *not* be removed.

Ray said...
This comment has been removed by a blog administrator.
tmess2 said...

Actually read both challenges and the full staff memo in response.

The seat the automatic unpledged delegates in full argument is based on the Charter of the Democratic Party (think of it as the Constitution). The Delegate Selection Plan would be the equivalent of a statute. The staff analysis gives reasons to interpret the Charter as being absolute (in the way that Florida suggests) and also reasons why the Charter is not that absolute.

As to the pledged being seated at 50%, the Florida argument is based on reading the various provisions of Rule 20C. Subdivision 1 of rule 20C is the minimum timing penalty of 50%. Subdivision 5 authorizes additional penalties but referes to subdivision 6. Subdivision 6 in talking about penalties cross-references back to subdivision 1 in a way that Florida claims precludes additional penalties if the only violation is "timing."

Michigan's challenge is mostly a political argument rather than a legal argument (essentially we have been punished enough by the candidates not being allowed to campaign here and we are too important to sanction).

The essence of the memo in full leaves the ball in the court of Obama and to a lesser extent Edwards, Richardson, and Biden. If Obama waives any right to a new selection process for Florida and all four candidates waive any right to a new selection for the Michigan 36 and can agree on a process for reviewing the last 19, the road is clear to go back to a 50% penalty.

Galois said...

Based on the staff analysis I think it looks like MI/FL getting half their number of pledged delegates (based on their primaries) and no unpledged delegates. The "candidate approval" rights of the uncommitted delegates is given to Obama, Edwards, Richardson, and Biden. (As Edwards and Richardson are supporting Obama, this gives effective control to Obama). This solution allows MI/FL to have seated delegations. It allows the voter preferences to be reflected (as much as possible). However, it causes the least amount of goalpost movement. It has the added advantage of being exactly what the Republicans have done not just to MI and FL but also to a couple of other states (WY, NH). This blunts the argument that the DNC is being unfair to MI/FL which somehow disadvantages the Democrats chances there.

The biggest question is the details of how such a plan would be implemented. It seems the staff would prefer a new delegate selection plan based on the primary results. This might take awhile. (The state parties have to meet, approve a plan, submit it to the RBC, etc.) I wonder if it is possible to let them choose their delegates according to the current plan, but then allow the candidates (and effectively Obama for the uncommitted) choose which half of their pledged delegates get seated. This would allow a quick resolution and allow Obama to choose those delegates from MI and FL that seem most committed to him (remember that otherwise even in FL there is some question since the candidates did not review the proposed pledged delegates). Whatever they decide (other than status quo) seems to have headaches in the actual implementation.

Unknown said...
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Unknown said...

tmess2 -

I find your analogy of the DNC Charter == to the Constitution, and the DNC Delegate Selection Plan == to statutes very interesting.

On purely a legal analysis side of things, statutes LIMIT constitutional rights all the time. Often the statues are the ruling authority over the strict wording of the Constitution. It is only when a statute is in violation of the Constitution that the Constitution is the ruling authority.

For example, the Constitution talks about the right to vote, bear arms, etc. But it has been held Constitutional that criminals who violate the law can have their right to vote and bear arms taken away from them by state statutes.

So a thief can lose his/her Constitutional right to vote because she/he broke the state statutes.

In the same way, so can a state's superdelegates can lose their DNC Charter right to vote because the state broke the Delegate Selection Plan rules.

(corrected for glaring statue typos)

Matt said...

Added a link to a full PDF of the meeting materials.

Dink Singer said...


You have summarized the second Florida challenge well. It is worth noting that the staff analysis rejected the argument, concluding "it seems clear that the RBC had authority to further reduce the pledged delegation of the Florida Democratic Party which had already become subject to the automatic sanctions of Rule 20(C)(1)."

If the RBC decides to revert the Florida penalty to 50% of the pledged and 100% of the unpledged PLEO delegates (but not the unpledged add-ons), the staff asserts "In this case, it can be argued, there is no basis for ensuring 'fair reflection' of presidential preference other than to use the results of the January 29 primary." The offer no alternative argument. Since Rule 11 requires that any replacement primary or caucus would have to be held on or before June 10, it is obvious that there is no way to implement a "do-over" now in either Florida or Michigan.

Dink Singer said...


Excellent analysis! Thanks.

tmess2 said...

Paul, I would take credit for the analogy but that is pretty much the essence of the Florida argument. I also think most judges and lawyers would disagree with the theory that statutes can limit constitutional rights, instead they would merely note that the rights are not absolute and the constitutional provisions permit reasonable regulations of those rights. Essentially, that type of analysis is the one being used by the DNC lawyers in arguing for why the rules could limit the right of DNC members to be delegates -- namely that the right is conditional on a proper delegate selection process which Florida and Michigan are currently lacking.

THuff said...

Thanks for this discussion. It has me glued to this blog for all the intelligent assessment without the bluster.

Is there a link available to the list of members of the RBC? I would like to contact any member who may be representing my local Democratic party, but their homepage doesn't provide that information.


Oreo said...

I have added links to our previous RBC and MI/FL stories to the post.
You'll find a list of the RBC members there.


Robert in MN said...

For whatever it is worth, as this lawyer sees it, the DNC lawyers had their marching orders to justify a compromise solution that would end this thing, which the memo does. After the dust settles on Saturday, the RBC will blame the lawyers and the rules for some form of a ½ solution and Obama will have clinched the majority of the pledged delegates. Pelosi and the other fence sitters will then have political cover to end this thing in a forceful (significant numbers of SD endorsements) way. If I got it right, I hope everyone will tell nice lawyer jokes for a week.

Oreo said...

Just posted some new info here

Letter from 4 MI Dem Leaders to RBC co-chairs asking for full seating of the MI delegation

Dink Singer said...


Could you please replace the link to the full memo with this one at C-SPAN

It's the same document, but with the addresses and telephone numbers of individuals redacted.


Oreo said...

Thanks Dink...
I changed the link.