The GOP's "Perfect" Storm

On August 11, I outlined the dilemma in which the Republican Party now finds itself.  For anyone interested, below is an annotated version, in light of yesterday’s election results:

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There will be 2,470 voting delegates at the Convention -- or 1,236 to win the nomination... 49% of those delegates will be selected before March 15 -- the time period during which the states MUST use a proportional formula for delegate allocation.  So let's say that Trump secures 25% of those delegates -- and is running in "first place."  In Trump World (and, to be honest about it, in Media World) that would mean he is "winning" even if most of the other 75% desperately wants someone else.   So on March 14, let's say he has 302 delegates (25% of the total). [Indeed, he has 315 delegates after yesterday’s results.]  He would need to get 934 [actually, now 921] of the remaining 1,262 delegates to win.  Sounds daunting, no?

Well, it is not daunting at all, under the present rules. The Republican National Committee allows state parties selecting their delegates beginning on March 15 to use a winner-take-all approach:  In other words, whoever come in first, regardless of the percentage of votes secured, gets ALL the delegates. [Nearly all of those states have opted for the winner-take-all approach.]  

 
So even if a number of candidates drop out, it is not at all inconceivable that Trump will continue to role up pluralities; except that from March 15 onward, a 25% [or, as things seem to be playing out, a 35% plurality] translates to 100% of the delegates.  If Trump gets pluralities in states with 74% of the remaining delegates, he wins the nomination.

Of course, the state parties could easily deprive Trump of such a triumphant march to the nomination by changing their rules to mandate proportional representation (as is required in the pre-March 15 states).  Indeed, such an approach certainly would be more democratic.  But, in Trump World, that would be "unfair" because he would be deprived of so many delegates even though he is "winning" -- i.e., coming in first in a multi-candidate field.  If he loses the nomination because he is not treated "fairly," he has made it clear he will run as a third-party candidate, thus probably assuring a Democratic Party victory in November.  So the party leaders likely will not change their formulas.

[But if the party leaders did seek to change the formula, Trump could (and likely would) file a lawsuit.  A similar 1972 lawsuit is discussed on pp. 14-15 of a law review article I co-authored with Joe Rauh and Ken Bode in 1973.  Here is what happened:  In June 1972, George McGovern seemed to seal the Democratic nomination by winning the then-winner-take-all primary in California with 43% of the vote; the Democratic Party rules then allowed winner-take-all primaries.  When the anti-McGovern forces on the Convention’s Credentials Committee voted to strip McGovern of 57% of his California delegates – thus depriving him of a majority on the floor of the Convention – McGovern sued, and a panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit agreed that it would be illegal for the Convention to change its rules at the end of the game.  The Supreme Court issued a stay of the ruling, and the Convention eventually awarded McGovern all of the California delegates, thus assuring his nomination and making the lawsuit moot.  But the chaos created at the Convention doomed the McGovern candidacy in the general election. See this previous post for more on this.]

Now if, by Spring, there is a one-on-one matchup with Trump, one would think that Trump would lose.  But who would that one candidate be?  Is there any party leadership that could clear out the field for a one-on-one matchup?  It is hard to see, for example, the Koch Brothers being able to push out Jeb Bush in favor of Scott Walker; and it is hard to see Scott Walker bowing out in favor of Bush.

[The lineup of candidates is even more difficult for the party Establishment than the one I posited last August.  Bush and Walker are gone; just about everyone in the Establishment can’t stand Cruz, and Rubio is a lightweight; Kasich has yet to come in first anywhere. The process will drag on (with the accompanying embarrassing attacks by the candidates on each other), at least through March 15 -- and beyond, particularly if Rubio or Kasich are able to win their home states. There are no good choices for the Republican Party, and they realize that.]