Document Type

Article

Publication Date

12-2016

Publication Title

Fordham Law Review

Publication Title (Abbreviation)

Fordham L. Rev.

Volume

85

Issue

3

First Page

1073

Last Page

1096

Abstract

The presidential nomination process used by the Democratic and Republican Parties is an ill-considered, unstable pastiche of competing components that generally operate in fundamentally different manners. The process is comprised of three main elements: the selection of delegates to the national convention (generally through state and district party conventions or other intraparty processes), the determination of the presidential candidates for whom those delegates will vote (generally through state-by-state primaries and caucuses), and the national convention itself.

The ritual of holding primary elections and caucuses across the nation creates the widespread public expectation that the results of those proceedings—the will of the voters—will determine who wins each party’s nomination. Yet, the national convention need not nominate the presidential candidate who received the most votes nationwide, won the most delegates, or prevailed in the most primaries or caucuses. The system gives delegates substantial power over both the rules of the convention and the choice of nominee that, were it ever used, could lead to the collapse of a party. And the mere existence of this power leads to suspicion of the party establishment, intraparty intrigue and discord, and uncertainty throughout the primary process, which are unhealthy for both the party and the country.

The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, state parties should tie the various components of the presidential nomination process more closely together by adopting a blend of the Democratic and Republican Parties’ current approaches. When a candidate is allotted national convention delegates based on the results of a presidential preference vote, the candidate should have a voice in selecting those delegates, and those delegates in turn should be bound to vote for that candidate, at least during the first round of voting at the national convention.

Rights

© 2016 Michael Morley.

Comments

Originally in Fordham Law Review.

Faculty Biography

https://law.fsu.edu/faculty-staff/michael-morley

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