Donald Trump, Frank Underwood & Open Political Party Conventions

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Just like the Underwood’s opened their political party convention to the floor so they could manipulate the First Lady’s nomination as Vice President in the current season of “House of Cards,” Donald Trump’s nomination is not secure.

For Republican’s who do not like Donald Trump or Ted Cruz there is some hope that they could, as Frank Underwood might say, “reset the table.” As we have seen several times in our nation’s history, the popular vote does not decide the outcome of the Presidential Primary elections any more than it decides the outcome of the Presidential election in November.

Presidential Conventions

The framers of the United States Constitution did not contemplate political parties and therefore did not include a procedure for nominating Presidential candidates when drafting the Constitution.  The Electoral College nominated George Washington for election in both 1789 and 1792.  After the rise of the Democratic-Republican party of Thomas Jefferson, and after the Twelfth Amendment, the process of candidate selection evolved.  Members of Congress selected a single candidate from their party to run for President.

In 1831, a political party known as the Anti-Masons held a convention of party supporters to decide their nominee because the party did not have any members in Congress. The idea of a convention gained traction and was later adopted by Democrats and Whigs. At national conventions, party leaders would meet and vote on a nominee.

Delegates, which were often influenced by party bosses, would cast ballots until a specified majority was reached, and the chosen nominee was then announced to the public. Some conventions required several ballots before one candidate emerged as the nominee. In 1924, it took delegates from the Democratic Party a record 17 days and 103 ballots to nominate John W. Davis. The last multi-ballot or “brokered” conventions were the 1948 Republican convention and the 1952 Democratic convention.

Today, the nominee is often clear months before the conventions, with delegates attending solely to officially ratify the primary results. Accordingly, the Democratic and Republican conventions largely serve as media events to kick off the general election and build enthusiasm for the nominee. However, given the controversy surrounding Donald Trump’s candidacy, there is speculation that 2016 could be the first brokered convention in decades.

Rise of Primaries

Primaries arose as a way to boost public participation in the nominating process. The first presidential primaries were held in 1912. However, due to high costs and low voter participation, the process never really caught on. As a result, candidates like Adlai Stevenson received the Presidential nomination without winning a single primary.

The modern primary evolved in response to the 1968 Democratic Convention, which turned violent. The majority of delegates supported Vice President Hubert Humphrey, even though he had not won a single primary. Meanwhile, 80 percent of primary voters cast ballots for anti-war candidates, Senators Eugene McCarthy and Robert F. Kennedy, who was assassinated just prior to the convention. Demonstrators, who believed Humphrey would continue President Lyndon Johnson’s involvement in the Vietnam War, protested both inside and outside the convention.

The turmoil resulted in the formation of the Commission on Party Structure and Delegate Selection, better known as the McGovern-Fraser Commission, which drafted new rules for the nomination process. To boost transparency, national convention delegates had to be selected in forums that were open to all party members and conducted during the same year as the Presidential election. Most notably, primaries could no longer be “advisory,” with the new rules mandating that convention delegates be distributed in proportion to the primary results.

The reforms are credited with significantly increasing the role of primary elections, with more than 40 states now holding them each year. In 1968, only 13 million Americans participated in the nominating process. By comparison, approximately 57 million eligible voters cast ballots in the 2008 nominating elections.

With both parties adopting recent reforms to avoid “front-loading” the election calendar, the 2016 primary election season is expected to continue well into the spring. Come June, New Jersey voters may still have a say in who is on the ballot in November.  The Republican Party convention may end up with higher ratings than “House of Cards.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Donald Trump, Frank Underwood & Open Political Party Conventions