It’s not so difficult if we scrap it (updated 4/14/16)
In an interview with Hugh Hewitt on his radio show, on March 31, George W. Bush’s campaign strategist Karl Rove said Ted Cruz misinterprets Rule 40 about who can appear on the ballot during the convention. Mr. Cruz had said on March 30 that only the candidate with eight or more state victories – the majority of the delegates in those states – has the right to appear.
Rule 40B says that in order to have your name officially placed in nomination with a speech and seconding speeches, you have to have the majority of delegates in a certain number of states. I believe it’s eight states. But it does not say that those are the only candidates that you can vote for.
However, the plain reading of Rule 40, Paragraph B, the key one, supports Cruz. The paragraph says:
(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business.
It seems clear enough to me. You can’t appear on the ballot to be nominated without the majority of the delegates from at least eight states. Ted Cruz is right. So far, only Trump and Cruz are eligible.
However, Cruz had better reconsider what he wished for in a March 30 interview on the Hugh Hewitt Show, when he insisted that Rule 40B should stand.
If we read Rule 40 and paragraph B carefully and strictly (more carefully than I did here), it says the candidates qualified to appear on the nominating ballots must win a majority of delegates in at least eight states.
A plurality is different from a majority. States that have been winner-take-all can be more easily assessed as a majority (e.g. Florida, South Carolina, Ohio, and Arizona, so far). Cruz won proportional Utah by a clear majority. But what about the other states that award delegates proportionally and in which no one has won a majority outright, but a mere plurality?
For a rundown of the states and the distribution of the delegates, please click here: Election 2016 – Republican Delegate Count.
According to that source, no one has won an outright majority of delegates in eight states, and that might never happen if Kasich comes on strong in the East and Northeast in the winner-take-all states there. It seems that in a shared delegate vote count, Trump and Cruz would not qualify (so far) under a strict interpretation of 40B. To repeat, they have a plurality of delegates, not a majority, more often than not. So Therefore, it is essential that the GOP Rules Committee abandon Rule 40, which was written for 2012, just to block Ron Paul from raising a stink during Romney’s clear and clean primary victory. It’s an obsolete rule, written for a no longer existing context.
I believe it is in the interest of the convention and the most wide open nominating process to abolish Rule 40 in its entirety, in case Cruz or Trump does not reach 1,237 after several ballots (the rest of Rule 40 permits several ballot votes). It’s best for the GOP to keep all its options open, in order to get the best nominee.
It is a fact that currently, Trump and Cruz poll badly against Hillary (Kasich the moderate does better, and so did conservative Rubio, but the primary voters have said no to Rubio and are saying the same to Kasich). In light of the disconcerting showing of the two viable candidates against Hillary, if the convention has to reach out to another person who has not been a part of the entire grueling primary season, then so be it, despite Trump’s and Cruz’s hurt feelings. Trump and Cruz fatigue is setting in.
Scrap the rule and open up the convention.
Update: Could Trump be shut on the first ballot? The problem with that analysis is that Rule 40 says majority. Trump has won a majority in a few winner-take-all states like FL, but in most states he’s either lost or won only a plurality (the most delegates without getting over 50%).