FLASHREPORT

Legislature Should Forget About Changing Republican Presidential Delegate Selection Rules

An exclusive column penned for the FlashReport by Political Law Attorney Chuck Bell.

[Publisher's Note:  As part of an ongoing effort to bring original, thoughtful commentary to you here at the FlashReport, I am pleased to present this column from Chuck Bell.  Bell,  who is considered to be one of the nation's foremost experts on political law issues, is a Senior Partner with the firm of Bell, McAndrews, and Hiltachk.  The opinions expressed in this column are his own, and not necessarily those of any of his clients, including the California Republican Party, for whom Bell serves as General Counsel - Flash]

If you are new to the FlashReport, please check out the main site and the acclaimed FlashReport Weblog on California politics.

The press reports that Governor Schwarzenegger and legislative leaders are negotiating to move the California Presidential Primary from its June date to February 5, 2008, at least for the upcoming Presidential election cycle. Several press reports also indicated that these discussions included possible changes to the Presidential delegate selection rules.

There’s no need for the Legislature to change state law to provide for "statewide winner take all" rules, because that’s what the current  law provides. More importantly, there’s no reason for the Legislature to do so, because the Supreme Court, the RNC rules and another provision of state law provide that political parties as a matter of constitutional right can disregard state law concerning the selection of Presidential delegates which conflicts with the Republican Party’s own rules that provide for delegate selection.

Prior to 1999, for Republican Presidential delegate selection, California state law provided for a “statewide winner take all” process, in which the winner of the Republican Presidential primary election would receive all the delegates to which California Republicans were entitled. Elections Code sections 6421, 6460 and 6461. Until then, the California Republican Party had no rule that addressed such delegate selection. The party accepted by deference the state law formulation. The “statewide winner take all” rule had been favored for decades, because California always had a potential Presidential candidate – or a governor who could claim “favorite son” status and a leading role at Republican Presidential Nominating Conventions, from Earl Warren, to Richard Nixon, Ronald Reagan, George Deukmejian and Pete Wilson. Statewide winner take all meant controlling a solid 170 to190 delegate votes or nearly 20% of the delegate votes needed to secure the Republican Presidential nomination. 

In five separate U.S. Supreme Court decisions from 1974 to 2000, the U.S. Supreme Court made clear that state party rules and self –governance trumped state law rules to the contrary.  In Cousins v. Wigoda, a 1974 decision, and later in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, in 1981, the high court held that national party rules governed Presidential delegate selection.  In 1989, the high court affirmed the political parties’ right of self-governance prevailed against contrary state laws, striking down state laws governing party organization and the state law ban on political party endorsements of candidates in contested partisan primary elections. Eu v. San Francisco Democratic Central Committee.  In 1986 and 2000, in Tashjian v. Connecticut in California Democratic Party v. Jones, the high court further upheld the rights of political parties to determine whether to permit or exclude voters registered with other parties or those not affiliated with a political party to vote in the parties’ primaries, against conflicting state laws.

In 1999, the California Republican Party abandoned its deference to state law and the “statewide winner take all” statutes for Presidential delegate selection in favor of a party rule providing for “winner take all by Congressional District,” for California’s 53 Congressional Districts. This rule affects 159 of the approximately 166 delegates allowed California by the Republican National Committee (“RNC”). California’s remaining “at large bonus delegates” are apportioned under state party rules to the Presidential candidate who wins the statewide primary vote. However, these bonus delegates are few in number, because under RNC rules, these bonus delegates are awarded based on winning statewide elections for President and U.S. Senate, and California has lost delegates since 1992 as the Golden State has become solid blue in national politics. 

Consistent with the Supreme Court cases, RNC Rule 15 provides that a state party’s Presidential delegate selection rules trump state laws to the contrary.  Although Elections Code sections 6421, 6460 and 6461 remain on the books, Elections Code section 6300(b) also recognizes the primacy of state and national party rules over conflicting state law.  Therefore, the State Legislature’s attempt to reinstate a “statewide winner-take-all” rule for the Republican Presidential delegate selection process will be of no avail, because the current California Republican Party rules trump such legislation, and current state law recognizes the legal supremacy of party rules.  Thus, new legislation is actually unnecessary but would be meaningless if enacted, because the state and national parties are free to ignore it. 

Finally, under RNC rules, a state may not change its Presidential delegate selection rules after June 30, 2007, the deadline for such state rule changes for the 2008 Presidential nomination cycle. Thus, it is very likely that the California Republican Party’s “winner take all by Congressional District” apportionment will remain in place for the 2008 Presidential election cycle, absent a party rule change or party abstention on the Presidential delegate selection issue before June 30.
_____________________________________________________

You can e-mail Bell, via the FR, here.

BIOGRAPHY OF CHUCK BELL
Mr. Bell has practiced political and election law exclusively since 1980. He is one of the leading experts on the California Political Reform Act and federal and state election laws. Mr. Bell was the founding Chairman of the California Political Attorneys Association.

Mr. Bell is the General Counsel to the California Republican Party, and also served in that position from 1982 to 1993. He has provided legal advice to candidates and officeholders including Governor Pete Wilson, Attorney General Dan Lungren, Secretary of State Bill Jones, former Governor George Deukmejian, former U. S. Senator John Seymour numerous Congressional, State Senate and Assembly leaders, state and national political party and legislative caucus organizations. He also has served as counsel to political action committees, lobbyists, corporations, trade associations and state and local ballot measure committees.

Mr. Bell served as a consultant to the American Bar Association's committee on election laws and is Vice Chairman of The Federalist Society's free speech and election law practice group. He served as an advisor to the California Election Law Recodification Project, as a member of the transition team of Secretary of State Bill Jones and as an advisor to political parties in the 1994 South African election.

Mr. Bell is a graduate of Stanford University and Stanford Law School. He served as counsel in the Office of General Counsel, Federal Communications Commission, prior to beginning private practice.