Legal Beagle by Graeme Edgeler


Hillary Marches fourth

Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.

If Hillary Clinton or Barack Obama wins 100% of the delegates in 100% of the remaining primaries and caucuses, they'll net the Democratic Party nomination. Much short of that – or a concession – and the Democratic nominee won't be decided until the August convention.

I don't discount the prospect of a concession, if one candidate does particularly well in the remaining races (Obama taking Texas could clinch it for him) a concession may even be likely, but absent this – or some major scandal – the elected delegates aren't going to be enough to decide the race.

Which brings us to the rules. And to attempts by both Obama and Clinton to reshape the rules to help their chances.

For her part, Clinton wants to allow delegates selected in Florida and Michigan primaries to vote at the convention. These states – stripped of their delegates when they held their primaries in breach of national rules (and knowing in advance the consequences of such a breach) – voted overwhelmingly for Clinton. Behind Obama, she'd like all the delegates she could get, and Florida and Michigan would narrow the gap.

The democratic candidates weren't permitted to campaign in these states (if they did they wouldn't get any delegates ever), and in Michigan Obama's name didn't even appear on the ballot. Every vote should count ... you can't change the rules to suit you after the game has started ... the voters of Florida played by the rules ... ad infinitum.

It's insoluble – the view of anyone with insight into the situation seems so bound up with their view on the nomination (I don't doubt that, were the situation reversed, the arguments the two camps are making would be too). For myself, I'd say that the delegates selected should not be able to vote at the convention, but that the moral victory Clinton can claim, and the effect the votes cast would have on the nationwide popular vote, should be factors the super-delegates consider if they get to determine the victor.

You can't help but wonder if the Democrats bought themselves a whole bunch of trouble with so strong a penalty for this breach of the rules. The Republicans faced a similar problem – and punished states holding contests too early by removing half their delegates, and no-one – not the voters in those states, nor the candidates seeking their votes, seems to have a problem with it. The democratic punishment applied only to primaries (caucuses elect people to state-wide conventions, which chose the actual delegates during the permissible time)

For his part, Obama isn't trying to change the rules, so much as get people to ignore them – pushing the idea that superdelegates are there to confirm the choice of the elected delegates, and that it is not their place to exercise independent judgement or over-rule the will of the voters. Except that's exactly their role. A role they played in 1984, when they gave the nomination to insider Walter Mondale over insurgent Gary Hart. Maybe it shouldn't be their role, but they're there – as people with a long association with the Party, and a lot invested in its future – and they act as guardians, to prevent a candidate in a close race from securing the nomination if it's not in the interests of the party.

The role of the superdelegate is to question “is this the best person for the job?”, “does this person – popular within the democratic party – actually have the better chance of taking the White House?”, “will this person do damage to our chance of holding or taking Congress, or Governor's mansions, in the election?”, or “will the leadership of this person damage the party into the future?”.

Superdelegates are not rubber stamps. In the words that preceded this post, they owe not just their industry, but their judgement. That judgement will take account of the view of the democratic primary voters, and caucus-goers – if the view is clear, but not quite overwhelming enough to win without some superdelegate votes, they won't go against it. And the superdelegates who are members of Congress may consider it political suicide to vote against the overwhelming wishes of their constituents (some African-American Representatives, for example, who publicly came out for Clinton early, have subsequently seen their congressional districts come out 70% or 80% in favour of Obama). There will be numerous matters taken into account, but ultimately the question is a matter for the super-delegate, and those who argue that their role is perfunctory are dissembling.

The race is not over – if Clinton does well in the remaining races, and makes a close contest in the elected delegates – or a close contest in the popular vote – then she may be able to make the case that she is best for the party, and best for the country. If she can convince enough superdelegates of that, then she deserves the nomination – whether she has a slight lead or a slight deficit in the elected delegate count.

Maybe she'll pull something else out of the 1984 primary season, and gain traction over Obamania with “where's the beef?”.

But maybe Obama knows the answer.

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