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Thursday, February 2, 2012

Gingrich Challenge To Florida’s Winner Take All Primary Is Ill-Fated

Gingrich Challenge To Florida’s Winner Take All Primary Is Ill-Fated

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.



By Dell Hill

It’s about the same as passing a law that you know is unconstitutional from the very start.  That’s what the Republican National Committee did when it adopted Rule 15(b)(2) four years ago.  The intent was to penalize a state’s party committee in the event of rules violations regarding primary and caucus dates, specifically.  But a legal precedent had long-since been set which caused that rule to become instantly unenforceable.

Here’s the back-story from Ed Morrissey.

“Newt Gingrich wants Florida to apportion its delegates proportionally, not winner-take-all.  So does the RNC, at least officially.  Rule 15(b)(2), adopted in 2008, says that any primary or caucus that takes place before March 1st with the exceptions of Iowa, New Hampshire, Nevada, and South Carolina, “shall provide for the allocation of delegates on a proportional basis.”  However, can the RNC actually enforce this rule?  Even the RNC doesn’t think it can, as its top attorney, Bill Crocker, and one of its subcommittee chairs, John Ryder, explain:

With regard to proportionality, the RNC does not have the authority to intervene in a state’s primary plans beyond the imposition of the Rule 16 penalties.  A contest procedure exists for challenges to a state’s delegation or delegates.  The RNC cannot consider any issue regarding Florida’s delegation unless and until a proper contest is brought.  If a contest is properly and timely filed, the Committee on Contests and the RNC will have the opportunity to hear the contest and determine if there are any further steps to be taken beyond the penalties that have already been imposed.

Reid Wilson at the National Journal says that Rule 16 is as far as the RNC can go, which involved the loss of delegates to the convention, as well as a number of other perks and privileges.  Case law favors the state GOP on its decision to stick with winner-take-all:

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.”

Read Ed’s entire post by clicking right here.

Dell’s Bottom Line:

There’s no joy in Gingrichville tonight.  Mighty Newt has struck out.

What’s rather confusing is the fact that the legal advisers to the Gingrich campaign failed to research this issue and reach the exact same conclusions prior to letting their candidate issue a blustery public statement indicating a challenge to the winner take all provision.  Twenty-four hours later, Gingrich looks the fool for not doing his legal homework.

What this means is that Gingrich can challenge the decision, but stacks of case law - to and including Supreme Court decisions - indicate it would be a total waste of time.

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