Newt Opens A Can Of Worms

Mitt Romney won the Florida primary by a healthy margin, and walked away with all the Florida delegates under the winner-take-all system. Or did he? Contender Newt Gingrich says "not so fast." The Republican National Committee (RNC), in an attempt to keep primaries from being held too long before the general election, imposed Rule 15(b)(2) in 2008. That rule provided that with named exceptions, delegates chosen before March 1 must be allocated proportionately.

Rule 16 provides that any state that does not conform with the "early primary" rules must lose half its delegates at the nominating convention. But neither Rule 15 nor 16 provides for an immediate enforcement mechanism regarding proportional allocation of delegates. What Rule 16 does is leave the issue open, unless and until a "proper contest is brought." In that case, the Committee on Contests of the RNC may hear the contest, then decide on the proper course of action. Well, Newt Gingrich has launched a "proper contest."

The RNC enforcement provisions did not stop Florida from moving its primary to a date before March 1, and it seems unlikely that it will be any more successful in telling the states what to do by attempting to proportionalize the results of the recent primary. Case law favors a state's right to choose its own rules for picking delegates. As recently as California Democratic Party v. Jones (530 US 567, 2000) the US Supreme Court held that a state political party has the inherent right to choose its own method of electing and apportioning delegates. The Court specifically said that in matters of state political party organization, "any outside attempt to preempt the right of a [state] party to choose its own leaders is functionally both severe and unnecessary."

The Court followed a long line of precedent establishing that the First Amendment right of freedom of association protects the integrity of state political procedures. Gingrich will be fighting an uphill battle, even if the RNC should hear the contest and decide that Florida must affirm its convention delegation proportionately. Florida is highly unlikely to give up its winner-take-all system because of a nebulous and muddy RNC rule with wide-open enforcement provisions.

The issue seems to come down to that old philosophical question: Just because you can do a thing, does that mean you ought to do that thing? Gingrich has every right to launch his contest of the winner-take-all primary. But should he? My personal opinion is that he should not. Not only does it further divide a party which can only win in November with strong unity, but it slaps a major swing state in the face. It seems like just another chapter in Gingrich's peckishness and increasingly personal vendetta against Mitt Romney. Ron Paul, Rick Santorum and Gingrich himself would benefit somewhat from a proportioned delegation, but the cost seems far too high.

Not only does the contest potentially cause problems in a swing state which has already lost half its delegates to the convention, but it would also likely cause dissension and disarray within the RNC as well. The likelihood that the contest will benefit Gingrich in the long run is also in doubt. Republicans don't like sore losers, and at a time when the Party is attempting to resolve its conservative/moderate dichotomy, this action just muddies the waters even more. This will just be another sideshow in an already-contentious candidate selection process.

Thoughts?