Abstention and Voting Present: Brokered Convention Guaranteed?

[DanK22]

If Paul delegates in bound states can abstain or vote present AND if their action does not reduce the 1,144 number... isn't a brokered convention guaranteed? I've been looking around here, DP, and elsewhere, but haven't been able to find a definitive answer on whether or not bound delegates can abstain or vote present and, if so, whether or not either action reduces the 50% +1 number needed, which for this year is 1,144. I've found past examples of voters abstaining, but since convention rules aren't decided on until they're voted on at the convention, I've been looking at the 2008 rules. (2008 Rules pdf: http://www.gop.com/images/legal/2008_RULES_Adopted.pdf)

Here are two contradictory arguments from the DP
http://www.dailypaul.com/229263/boun...cannot-abstain
http://www.dailypaul.com/229408/yes-you-can-abstain

Is it possible to know the answer to this question before the convention? If 2012 follows Robert's Rules, do we have the numbers to adjust the rules to make bound delegates unbound or at least give them the ability to abstain/vote present?

Does the campaign have a definitive answer?

Side note:
While reading, Rule 15.b.2. caught my attention... it says if a state holds its election before April 1st, then its delegates must be proportional. My state, Florida, was penalized half of its delegate number for scheduling too early, but it's sending winner-take-all delegates... how is that possible? I heard Newt's team was going to sue to change from winner-take-all to proportional, did anything come of that effort?

[PaulSoHard]

It doesn't say in the rules that you can't abstain...in fact it doesn't say anything regarding abstaining.

I think it's a question we'd all love to know the answer to.

[Titus]

DanK, that is my understanding of the rules in Florida and Arizona I think as well. If we don't hear anything, our national delegates should object to the count by stating "division".

Unfortunately, bound is probably means abstention is near impossible unless there is a prior act to the contrary. Normally, you would look at caselaw to determine the definition of bound there. If there is no caselaw, you would look at prior acts. Abstentions may have occurred prior. If the revelant rule has not changed since 1976 (or the last abstention of record), then a legal argument could be made that abstention is possible.

Yet, there is probably little to no case law regarding "bound" in the context of voting except for maybe securities law and proxy voting. Even then, bound delegates are more of a social, public contract versus proxy voting and private contracts. Instead, we'll look at Black's Law Dictionary.

There are three definitions of "bound" in Black's Law Dictionary. One is an adjective, one is a noun and one is a verb. The adjective says "constrained by a contractual or other obligation" or "constrained to follow precedent". The second does not apply. The first would mean that similar to a contract, a voter could not abstain.

The second definition, a noun, is "a limitation or restriction on action" Ex: Within the bounds of the law.

The last one is a verb. "To delineate a property boundary". That definition is clearly irrelevant.

The adjective is the most likely definition. When discussing delegates the word "bind" is used as a verb. Bind is defined as "To impose one or more legal duties on (a person or institution)".

The context is clear, the bound delegates are part of a social contract. I wish we could abstain but without some sort of clear precedent, I would have to say no.

That being said, we may not need to. If we can make sure the Santorum stays in (with five states), we can make sure Romney gets none of his delegates. If we absolutely kill it, we can also ensure Gingrich stays in on the ballot. Then, we keep voting that way until all delegates are unbound, then we can do a free for all. It's a big harder if people agree with me but not impossible. Because I want to be wrong, I specifically welcome examples of where people can abstain or other evidence to help me change my mind.

[sailingaway]

The campaign may have a definitive answer and may not want to discuss it.

I don't even think they will ask bound delegates for a vote on the first vote, I think they will just mark them as having voted the way they are bound to vote.

[DanK22]

Found this gem posted shortly after I started the thread. http://www.thegreenpapers.com/PCom/?20120429-0

"The scuttlebutt- "water cooler talk", if you will- is that there will be- where there are not already- those who can only be termed "stealth delegates" (the term is not original with me, by the way) out there who will be on the floor of the Republican National Convention in Tampa late this coming Summer: although bound by Party rules to vote for former Massachusetts Governor Mitt Romney on the First Ballot of Roll Call of the States re: Presidential Nomination, these will- instead- abstain on that ballot... if enough abstentions are registered (that is: if there happen to be more abstentions than the number of delegates above the "magic" number 'necessary to nominate' at the Convention [currently 1144- a majority of the current total of 2286 delegates to the 2012 Republican National Convention]) on Roll Call, Governor Romney would, thereby, be denied the GOP nomination for President on the First Ballot and, if so... well... anything can then happen on a Second (or, if necessary, a further) Ballot, can't it?

The theory under which such "stealth delegates" seem to be operating is that- while Party rules require National Convention delegates, at least on the First Ballot, to vote for the presidential contender to which they are bound and/or pledged based on the results of the votes cast by "rank-and-file" voters in their jurisdiction's Presidential Primary (thus, they cannot vote for any other presidential contender)- their abstentions would still be acceptable because these abstainers would not, in fact, be voting for any presidential contender other than (in the case of Massachusetts, already cited above) Governor Romney...

of course, this is an altogether cockeyed interpretation of the Party rules re: National Convention delegate selection, since abstaining on the First Ballot is also not voting for the presidential contender to which said "stealth delegate" is already bound/pledged (and there are sanctions, within the Party rules, to handle just such contingencies: such as replacing a National Convention delegate who refuses to vote for the presidential candidate to which he/she is bound or pledged with an alternate who will, etc. [keep in mind here that National Convention delegates actually vote in caucus prior to their votes being announced on the floor of the Convention- by the chairman of the jurisdiction's delegation- during Roll Call of the States, so it's not as if any such abstentions would, in reality, be taking place during Roll Call itself... in other words: it is not as if the Roll Call itself is one of delegates casting their votes therein as individuals (such as one might see while watching a vote in the United States Senate on C-SPAN 2)!])

But, if only as the proverbial "hypothetical" here, might such a "stealth delegate" scenario- one denying a seemingly presumptive presidential nominee his/her prize via a plethora of abstentions on the First Ballot by delegates otherwise bound/pledged to support him/her on the First Ballot- be at all allowed to play itself out on the floor of a Major Party's National Convention in any event?

Answer: a resounding No!"

...so it's not impossible, but it looks like we'll need a money bomb in order to hire all the best parliamentarians in the country for Tampa.

The question of whether or not bound delegates can abstain wasn't, to my taste, a definitive 'yes' since it sounds like we'd need to twist ourselves into pretzels arguing that not voting doesn't violate the 'vote only for' requirement of bound delegates. Also, the question of whether or not abstentions would reduce the 1,144 votes needed isn't a definitive 'no', but it's implied that abstentions during roll call would not reduce the magic number.

@ Titus, this my sound extremely naive, but is anything that happens in these primaries/caucuses/etc justiciable? I mean, aren't they the equivalent of country clubs? That said, I poked around for previous examples and found examples of abstention (1 abstention in Iowa in 2008), which seems to counter what the green paper commentary said about removing an abstaining delegate and replacing with an alternate willing to vote, and many states 'passing'. I don't know yet what it means when entire states are listed as "passing", does anyone know or at least know where I might find an answer?

If bound delegates are allowed to abstain and their doing so doesn't reduce the number needed to reach plurality... then isn't a brokered convention guaranteed? I'm surprised so few have commented since this seems like a game-changer if abstention is allowed and doesn't affect plurality.

The campaign may have a definitive answer and may not want to discuss it.

@sailingaway, I have a gut feeling that that's the case and this is something being played close to their chest. It would explain why, even with the threat of R-Money getting to 1,144, the campaign seems to be spending most of its money on delegate training and not on attack ads.

[Titus]

@ Titus, this my sound extremely naive, but is anything that happens in these primaries/caucuses/etc justiciable? I mean, aren't they the equivalent of country clubs? That said, I poked around for previous examples and found examples of abstention (1 abstention in Iowa in 2008), which seems to counter what the green paper commentary said about removing an abstaining delegate and replacing with an alternate willing to vote, and many states 'passing'. I don't know yet what it means when entire states are listed as "passing", does anyone know or at least know where I might find an answer?

If bound delegates are allowed to abstain and their doing so doesn't reduce the number needed to reach plurality... then isn't a brokered convention guaranteed? I'm surprised so few have commented since this seems like a game-changer if abstention is allowed and doesn't affect plurality.

For the first question, is anything capable of being litigated (I'm assuming that is what you mean by "justiciable"), the answer is it depends. The biggest hurdle is the "case and controversy" requirement. The courts in the United States do not answer "What if?" questions. Rather, they only answer when someone has an injury or will have an injury if an action isn't stopped (i.e. injunction to stop bulldozer from tearing down a building). Here, there is no certainty Ron Paul will attempt to have delegates abstain and even if the delegates did, that is not certain to stop Romney from having 1,144.

However, some cases (like North Dakota) might be litigated. That is the decision of the campaign. The biggest hurdle is proving state action. Some have the assumption of the fact that these procedures cannot be challenged based on state action. That isn't always true but it is not always wrong either. If the State implicitly gives its powers to the Republican Party by rubber stamping whatever procedure they use, then it could be argued that the action is state action. This happened a bit with the so-called white primaries in history. It has also happened a few times in recent history. However, such challenges require a defect in procedure, not just who won. Even then, the standard to analyze such defects isn't clear. So, the short version is yes. The long version is winning such a case is the equivalent to this Ron Paul campaign. It is likely to be long, hard, drawn-out and complicated.

As to the second question, "passing" at least in my legal circles is the equivalent to a temporary abstention. It means the issue will be discussed later. It means I'll vote but not right now.

If delegates can abstain, the RNC will likely interpret the rules as fifty percent plus one of voting delegates. This is for ease of understanding and to effectuate the penalties for early voting states and not make it harder to get the nomination. It makes sense to me.

Regarding the campaign having a definite answer, I would expect so.

[PaulSoHard]

I'm dreaming of a scene where the Ron Paul campaign gathers every single delegate they know is theirs to a private meeting/rally after the final primary telling them that they can abstain on the first vote. Man I wish it comes true