Why Gingrich's Florida Challenge Won't Work
Anyone getting a sense of deja vu? For the Republican National Committee, the eerie feeling that they've lived this day before is exactly the reason why former Speaker Newt Gingrich won't be able to snag any delegates from Florida, even though the state broke party rules.
Remember, Florida was the catalyst for this year's rush to the front of the primary calendar. After both parties reached an agreement to begin the presidential nominating process in February instead of January, Florida Republican legislators threw a wrench in those best-laid plans by refusing to change their primary date, which is set by law, from January 31. That meant party officials in Iowa, New Hampshire and South Carolina all had to move their primary contests ahead of Florida and into January.
The RNC and their Democratic counterparts will never fix the primary process without a sufficient mix of carrots and sticks, and the stick Republicans tried this year -- penalizing Florida half its delegates -- wasn't enough.
But Florida broke two rules: Under the calendar agreement the RNC passed last year, no state that holds its nominating contest before the first Tuesday in April may award delegates on a winner-take-all basis. Every state that holds a contest before April 3 must award delegates on a proportional basis. If a state awards delegates on a winner-take-all basis before April 3, they are subject to -- you guessed it -- losing half their delegation.
But the RNC has already implemented every penalty they possibly can against Florida, according to the party's general counsel and the head of the RNC committee overseeing the presidential nominating process. In a memo to members sent last night, Bill Crocker, the RNC's top lawyer, and John Ryder, the Tennessee national committee member who chairs the presidential nominating committee, told RNC members that their hands are effectively tied.
"Florida is suffering the mandatory penalties under Rule 16: loss of fifty percent of its delegates and alternates, and the RNC members from Florida cannot serve as delegates. In addition, the RNC Rules Committee imposed every available discretionary penalty -- penalties related to convention seating, guest privileges and hotel location. Thus, all of the penalties authorized under the Rules have been imposed on Florida," they wrote in the memo.
Therefore, they wrote, there's nothing more the RNC can do. Party rules don't allow a second round of penalties, so the RNC won't cut Florida's delegation in half again, nor will they force the state to award its delegation proportionally (Which would have meant Gingrich getting a handful of delegates otherwise pledged to Romney). "The RNC does not have the authority to intervene in a state's primary plans beyond the imposition of the Rule 16 penalties," Crocker and Ryder wrote.
There's a process for challenging the validity of a delegation, but that process happens in the days leading up to a convention, when a proper challenge lands before the RNC's Committee on Contests. That means Gingrich's team won't be able to challenge any delegate count, or count any new delegates, until August at the earliest. And given the way party rules are written, it's extremely unlikely the RNC -- the ultimate arbiter of who actually gets to serve as a delegate -- would rule in Gingrich's favor.
What's more, taking the fight to court isn't likely to produce a favorable outcome for Gingrich. Courts have repeatedly held that control of the process by which a party nominates its candidates is protected by the First Amendment's right of association (Most recently, the Supreme Court decided, in California Democratic Party v. Jones, that even an open primary in which non-party members voted violated a party's rights). Good luck convincing a federal court to intervene in internal party rules.
We've said it before, we'll say it again: Knowledge of the rules of the game makes a big difference. It's why President Obama beat Hillary Clinton in 2008. It's why Gingrich isn't on the ballot in Virginia. And it's why Romney remains in control of this race.
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