Decision ‘08

Is Half A Loaf Better Than None?

That’s the question in today’s election news, as the lawyers weigh in:

Democratic Party lawyers have determined that no more than half the delegates from Florida and Michigan can be seated at the party’s August convention, dealing a blow to Senator Hillary Rodham Clinton’s efforts to seat the full delegations from those states.

The rules committee of the Democratic National Committee meets on Saturday to determine whether to seat the delegates from these states, which were penalized for holding early primaries.

In asking that the full delegations from these states be seated, Mrs. Clinton hopes to narrow Senator Barack Obama’s delegate edge and make the case that by including the votes from these states, she will have more of the popular vote in the nominating contests, an assertion that has come under some dispute. But the legal analysis, based on party rules and contained in a 38-page memo to the committee, says the committee can either seat only 50 percent of the delegates or seat them all but give them only half a vote, which amounts to the same thing.

Whatever the committee decides about the delegates may not be a big factor in Mrs. Clinton’s pursuit of the nomination. Even if she were awarded all the delegates in proportion to her popular vote in those states — her best-case scenario — she could not overtake Senator Obama’s delegate lead.

It is not entirely clear what the Obama campaign intends to ask for at the meeting but Mr. Obama has said he wants the delegates seated. His top aide, David Axelrod, has said that the campaign could go “half-way” on any compromise.

The important goal for the Clinton campaign is to include the popular votes from those two disputed states in its overall vote tally. The Clinton campaign is already doing this, but because Michigan and Florida have been stripped of their delegates, an air of illegitimacy hangs over their votes and her opponents do not recognize their popular vote.

If the rules committee seats even half the delegates from those states, that could confer some legitimacy on the Clinton’s inclusion of those votes in their overall tally, although a Clinton aide said that the campaign does not feel it needs the seating of the delegates to legitimize the popular vote. Those votes have been counted and certified by the secretaries of state in both states, the aide said, and the rules committee cannot alter that.

Truthfully, this changes nothing. Hillary was going to claim the meaningless ‘popular vote’ victory regardless of the ultimate decision in seating the delegates, and the full delegations of both states will not close the gap with Obama in the only count that matters.

Will it sway any superdelegates her way? Highly doubtful…I think the more likely reaction is continued annoyance at the sheer desperation and shamelessness of the Clinton camp…

11 Responses to “Is Half A Loaf Better Than None?”

1 Chris J. Breisch Says:
May 28th, 2008 at 9:11 pm
No blows have been dealt to Senator Clinton.

The viewpoint of the Dem lawyers is meaningless at this point.

As is the view of the Rules & Bylaws Committee this weekend.

The only thing that matters is the result of Florida’s pending lawsuit. If Florida wins, the delegates will be seated in full, and Michigan will no doubt follow suit.

See my blog post on the subject here:
http://chrisofrights.blogspot.com/2008/05/when-will-hillary-drop-out.html
2 Gulf Coast Bandit Says:
May 28th, 2008 at 10:13 pm
Chris: I love your blog name. It’s worth pointing out that the Florida Democratic Party’s lawsuit is based on the Voting Rights Act which requires pre-clearance from the Justice Dept. for changes to election procedures in certain states and localities with histories of racist behavior. The claim is that the DNC failed to get pre-clearance. So the argument from the Florida Democrats can’t be used by the Michigan Democrats, because Michigan isn’t a pre-clearance state.

As I see it, Florida Democrats have to prove three things. First, they have to prove that the VRA applies to the Democratic Party, a private organization. Second, they have to prove that the DNC was required to seek pre-clearance from the Justice Dept. Third, they have to prove that the DNC didn’t seek pre-clearance to strip the delegates.

If I were the defense lawyer for the DNC, I would first try to argue that the VRA doesn’t apply in a private election [which is what a primary is], only to governments. They would have to show that they never had to report to the Justice Dept. before, why should they have to now? Second, if they did have to do the pre-clearance thing, they would argue that the penalties and procedures were set forth in their rules (which presumably would have been pre-cleared), and they shouldn’t have to seek permission of DoJ to enforce the rules.

I don’t hold out much hope; but then, I have no idea if the DNC was required to seek pre-clearance. If they were, then I’d say Florida has a shot at getting seated. The point of all that was to say that Florida’s suit under the VRA doesn’t help Michigan at all.

Or maybe it does, just indirectly… Michigan Democrats could raise an Equal Protection challenge if Florida succeeds, saying that “Florida did the exact same thing we did, but they’re not getting punished for it and we are. We aren’t getting the same treatment that Florida is getting.” If a primary gets covered by the VRA, it would definitely get covered by Equal Protection. That’s even more tenuous though, and I think, unlikely to succeed.
3 Chris J. Breisch Says:
May 29th, 2008 at 7:32 am
Thanks, GCB. I agree with most of what you say, but I’m not sure that Florida has to prove anything at all. All they have to do is keep this case in the courts until August. At which point they have all the power they need to force the DNC to capitulate to their demands.

Imagine this conversation:

FL Dems: Are you planning on naming a nominee at the convention?

Howard Dean: Of course, that’s what the convention is for.

FL Dems: With this suit still going on?

Howard Dean: It doesn’t matter that the suit is still going on. You’re going to lose, and you know it.

FL Dems: Are you sure of that?

Howard Dean: Of course I’m sure. You have no shot.

FL Dems: Sure enough to bet on not being forced to change the nominee after the convention is over? That would be pretty embarrassing for the party, don’t you think?

Howard Dean: You and I both know that’s not going to happen.

FL Dems: Can you afford to take that chance?

The point here is that FL and MI have the power to wreck the party, if they chose to do so. Howard Dean can’t afford to let that happen. In the end, he’s going to have to give FL and MI pretty much whatever they ask for. He might be able to wiggle some sort of minor compromise, but in the end, this is going to go in favor of FL and MI and not in favor of the DNC. Incidentally, it’s also not going to go in favor of Obama.

Now, I read an article that says that no matter what happens with FL and MI, it’s not going to give Hillary enough delegates to claim the nomination. That is absolutely true. That is no longer her goal, though. She doesn’t have to have enough to claim the nomination. She just needs to make it so Obama can’t claim it either.

And thanks for the compliment on the name of the blog.
4 Ryan Says:
May 29th, 2008 at 8:16 am
Chris: What in the world are you on about? Obama will have more than enough delegates to win the nomination regardless of what Florida does. How does your “imagined conversation” even make sense? The party is manifestly not going to have to change its nominee after the convention because Obama is will have a majority no matter what. On top of that, Clinton is probably going to drop out by the end of next week and the whole thing will blow over. Why do you insist on seeing epic battles around every corner?

GCB: I’m, uh, pretty sure the Equal Protection Clause doesn’t protect states against federal action. In fact, it pretty explicitly only protects individuals against state actions.
5 Chris J. Breisch Says:
May 29th, 2008 at 9:00 am
Ryan, I already spelled out the math for you, but I’ll do it again.

With FL and MI included, Obama is currently 133 short.

There is very little chance of him picking those numbers up by June 3 (the date of the last primary).

If he doesn’t have the numbers on the morning of June 4, it’s unlikely he will have them by the time of the convention either. If you’re a superdelegate, and you haven’t committed by now, what possible incentive do you have to commit before the convention? Answer: None.
6 Chris J. Breisch Says:
May 29th, 2008 at 9:05 am
And Clinton won’t drop out next week. There’s no incentive for her to do so. She doesn’t need much money to keep the campaign rolling through the summer, so she can cover her debt by continuing to get donors to contribute.

As long as Obama is short the 133 he needs, FL and MI still can make the argument I just said. The obvious and simple answer is to get Obama over that threshold by getting uncommitted supers to commit to him. Then Dean can happily seat FL and MI in full and not worry. The chances of that happening soon are slim.
7 Gulf Coast Bandit Says:
May 29th, 2008 at 9:40 am
Ryan: Well, there’s got to be some argument they can make: Citizen M from Michigan is being treated differently than Citizen F from Florida because of the VRA. I don’t know, the lawyers are smart enough to come up with something. I’m not one.
8 Ryan Says:
May 29th, 2008 at 10:26 am
Chris: Your math is off. With Michigan and Florida, Obama is short 127 (according to DemConWatch). That’s still quite a few, as you say, but the Party will end this. Dean has been clear that this ends in June and he’ll be able to get everyone onboard once he has the support of the Party leadership. Which he’ll have shortly.

GCB: Well, perhaps they can. But it’s my guess here that the VRA can’t possibly apply to the nominating contests for a private entity. The Democratic Party isn’t required by anything other than its own rules to even hold primaries. And, even if they were, the Florida and Michigan situations are different in some pretty key ways.
9 Chris J. Breisch Says:
May 29th, 2008 at 10:52 am
Ryan, my math was correct when I posted it originally. Obama’s picked up 6 since then. Pardon me for not checking today’s #’s. And, apparently, you’re not listening to me. Dean may want to end this and can huff and puff all he wants, but it’s quite obvious that he’s being ignored and will continue to be. As long as the status of FL and MI are up in the air (which they will be due to the suit), then he won’t be “able to get everyone onboard”. Some will come after the RBC makes their “decision” this weekend, but unless FL and MI agree to accept the “decision” then the quotes around it are deserved, as it will be quite obvious that it won’t be the final word on the subject.

That’s Dean’s problem, which you apparently don’t get. He’s lost control. The DNC no longer has the last word on this subject, unless Obama can get a MI and FL proof majority. There’s little reason to believe that’s actually going to happen any time soon.

In the event that he does achieve the 2210 number, I do fully expect MI and FL to be seated fully (why not–Obama can be magnanimous in victory and will help party unity). Which was the point to my original rebuttal to Mark’s comments. The “half a loaf” argument is pointless. It ain’t gonna happen that way.

The options are:
Obama secures the number I keep mentioning, 2210, in which case MI and FL will most likely be seated fully.
Obama does not secure the number I keep mentioning, 2210, in which case the lawsuit(s) move forward until fully resolved, and a very possible outcome is that 2210 will be the number.

Regardless, it’s not 2026, and it’s not “half of FL/MI” either.

I’m not trying to create big battles. I’m just pointing out the realities of the numbers. And the reality is that until a court says otherwise, you’ve got to be thinking about 2210 if you’re Obama.

Now, your legal analysis may be correct. However, this is typically an area where our so-called “activist judges” step to the front. The legal argument is thin, I admit, but judges tend to rule on the side of the plaintiff in voter’s rights cases.

Tend to..I admit it’s not solid. Hence the argument in my second post. FL doesn’t have to prove anything, just keep the case going long enough to force Dean’s hand. Right now the game is five card stud, and FL is showing the King, Queen, Jack, and Ten of Spades. What’s their hole card? Is it the Ace of Spades? Or something useless like the Two of Clubs? Dean’s pretty sure it’s not the Ace (or even the Nine) of Spades, but how much is he willing to bet on that? The White House? His legacy as DNC Chair? The future of the party? In the end, if the situation isn’t resolved come August, Dean folds. He has no choice.

(actually, in retrospect it’s more appropriate to say that they’re showing the King and Queen, and the passage of June and July without a resolution will allow them to flip the Jack and Ten)
10 Ryan Says:
May 29th, 2008 at 12:35 pm
I don’t understand how you claim Dean has lost control. He manifestly has not. The DNC runs the Democratic Party’s primary contests. This is done when Dean (and presumably Reid and Pelosi, who he will probably need backing him up) says it is. The RBC will issue the rule on Florida and Michigan, the Clinton campaign will abide by the decision, and this will be over.

It isn’t really worth discussing the legal merits because the lawsuit won’t matter, but this isn’t about voters’ rights. Clinton is pretending it is, but there is no legal sense in which anyone is being disenfranchised here. No one has a right to vote in a primary, nor do they have a right to expect their vote to be counted. The DNC will muddy these waters by cutting the delegations in half in some way, but there is no legal argument to be made here.
11 Gulf Coast Bandit Says:
May 29th, 2008 at 8:15 pm
Ryan: I agree, and I believe the Court would find for the national party.