Could the Democratic Convention Nominate Someone Who Didn't Run In the Primary?

Richard J. Daley, legendary boss of the Democratic Party machine in Chicago (source: Chicago Sun Times)

by Thomas Neuburger

We're still more than half a year from the 2020 Democratic National Convention with the entire voting part of the primary race ahead of us, yet fears of a dramatic, brokered and broken nomination process are already entering the conversation. "It’s hard to ignore the potential for a first-round deadlock at the Democratic National Committee (DNC) convention next July," writes CNN, and they are not alone.

Those fears are likely to be confirmed; it's improbably in the extreme that one candidate will enter the convention with a majority of pledged delegates, which means that some later round of voting, which will add in the superdelegates and a lot of horse-trading, will pick the nominee. What happens then, and how the outcome is viewed by voters, may well determine which party occupies the White House in 20201.

Most game-theory analyses see these as the branches to consider, assuming no majority winner in round one:

1. What happens if Biden is the round one plurality winner?
2. What happens if Warren is the round one plurality winner?
3. What happens if Sanders is the round one plurality winner?

Given that Party leaders would much prefer Biden to Warren, appear to find Warren acceptable (but we may find out otherwise), and will never allow Sanders to hold Party power if they can possibly avoid it, the alternatives seem clear.

If Biden wins round one with a plurality, the superdelegates, who will vote in every round afterward, will support him. Biden will then be the nominee.

If Warren wins the first round with a plurality, will the superdelegates and Party movers and shakers put their money where their mouths have been and support her in round two? The jury's out on that. Warren may be the nominee, or Party leaders may balk and look elsewhere.

And if Sanders is the round one plurality winner, will superdelegates and Party leaders dare nominate someone else instead, a "unity candidate" (who could do anything but unify Sanders supporters with the Party base)?

They might, but I doubt it. The Party hates Sanders and will tank him at the convention if they can, just as they and their media ecosystem have done throughout the whole of the rest of process. On the media's contribution to the "stop Sanders" effort, see Ryan Grim's comment at 2:29 in the embedded clip on what he calls the widespread Sanders "media blackout" and I call its conspiracy of silence.

But that route is risky, both in fact and perception. If Sanders enters round two with the most pledged delegates, would they dare support someone else?

The Smell of Outright Theft

All of the analyses so far suggest that if Sanders leads in round one but doesn't win the nomination, Democratic Party leaders are faced with just two choices — confirm the will of the people and nominate Sanders anyway, or reach down into the candidate pool to nominate someone who received fewer votes.

They can do this, of course, and perhaps even try to sell it. Let's say that Biden, Buttigieg and Harris together have a delegate count that's greater than Sanders' total, with Biden in the lead. Party leaders could then "convince" enough Biden, Buttigieg and Harris delegates to support Biden in round two and declare him the "unity candidate." This allows superdelegates enough logical cover to give Biden the nomination with their added votes.

"Convince" in this case is a euphemism for a deal no one who wants a future in the non-Sanders Party can refuse, as Ryan Grim explains below:

Interesting. @RyanGrim at abt 5:00 in the clip re campaign staffing:

“You’re not supposed to work for Sanders if you want a future in the Democratic Party.”https://t.co/7btnFXA3EC

— Thomas Neuburger's errant politics (@Gaius_Publius) October 22, 2019

But the stink of corruption, the smell of outright theft, would be all over that deal, since Biden (or whoever) would not alone have had a delegate total greater than Sanders' total, and that person would immediately lose the claim of legitimacy in the eyes of most Sanders supporters, regardless of Party leaders logic.

A Biden or Buttigieg nomination, even if majority-supported, already has the look of general election failure painted on it. The same nomination, if stolen from Sanders by Party leaders, would sink like a twenty-pound stone, weighed down by the anger of millions of potential, now lost, Sanders supporters.

What's an entrenched political elite to do? There seems no easy answer.

The Party's Knight on a White Neoliberal Horse

This leads us to an unexplored possibility — that Party leaders might coalesce around, and nominate, someone who didn't run in the primary. The list of these people is great; there are far more people in fact who didn't run in the primary than did, unlikely as that may have seemed while watching the debates.

I've seen every name from Michael Bloomberg to John Kerry to Oprah Winfrey to Hillary Clinton (also here) and more suggested as the Party's Knight on a Great White Horse. Of course, the person they choose would have to be both credible as a potential president and garner enough enthusiastic support — genuine support, not purchased or threatened — to actually look like the "unity candidate" she or he would be claimed to be.

The obvious choice, of course, is Barack Obama. The neoliberal majority of the Democratic Party — and even many who call themselves progressives — would support him in a instant if they could.

Unfortunately, they can't; he's constitutionally ineligible, so I'll leave it to others to populate the list of alternatives.

My own candidate for the next obvious choice is his wife, Michelle. (For more, see here: "Poll: Michelle Obama Would Be Frontrunner in 2020 If She Ran.") Reporting has said for years that she doesn't want to run, which is likely why she's never included in these lists. But if the Party were desperate enough, would they sell her hard on the idea? And if they do, would she accede for the "good of the nation"? We'll have to see.

In any case, it's not beyond Sanders' reach to place first the first round of voting and put Party leaders in a deep existential bind. And it's not beyond thinking that Michelle Obama might actually win in against Trump.

Is It Legal For the Party to Nominate Someone Who Didn't Run In the Primary?

Yet even if the Party wanted to nominate an outside-the-primary candidate, could they do it? The DNC rules are ambiguous on that. Of course, we already know what the DNC thinks of their rules, but this may be a special case given how public the choice will necessarily be.

Thanks to a friend who did this research, these are the applicable paragraphs from the DNC rulebook (pdf):

Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination. Any vote cast other than a vote for a presidential candidate meeting the requirements of Article VI of this Call and Rule 13.K. of the 2020 Delegate Selection Rules shall be considered a vote for “Present.” [Page 16]

This appears to say that delegates may vote for anyone, even if the name has not been placed in nomination, so long as the candidate meets the "requirements of Article VI of this Call and Rule 13.K."

Here is Article VI (emphasis and square brackets mine):

VI. Presidential Candidates

The term “presidential candidate” herein shall mean any person [1] who, as determined by the National Chairperson of the Democratic National Committee, has accrued delegates in the nominating process and plans to seek the nomination, [2] has established substantial support for their nomination as the Democratic candidate for the Office of the President of the United States, [3] is a bona fide Democrat whose record of public service, accomplishment, public writings and/or public statements affirmatively demonstrates that the candidate is faithful to the interests, welfare and success of the Democratic Party of the United States, and [4] will participate in the Convention in good faith. [...]

The key words here are "and" and "delegates". If my reading is correct, the first sentences lists four "and" conditions, all of which must be met. That's a fair reading of this complex sentence, though I have seen it disputed. Does the "and" highlighted above join only conditions [3] and [4], with the [1] and [2] stating OR-conditions instead? It would be really picky (and violently ungrammatical) if Party leaders were to argue this way, but I've seen worse done.

The other key word, though, offers more hope for Party neoliberals. Does "any person who as accrued delegates in the nominating process" include only those who have accrued pledged delegates — or does "accruing" superdelegates count as well?

If the latter, accruing superdelegates, is all it takes to make a person eligible for nomination, all bets are off and the list of potential "unity" (i.e., non-Sanders) candidates widens far beyond the primary field.

The Station This Train Is Headed For

This is speculation, of course, but we're headed straight toward that station, straight to the moment when supersdelegates have to decide whom to back and how to sell their decision. Do they send Sanders to defeat even if he has a first-round plurality? Do they really like Elizabeth Warren enough to nominate her if she has a first-round plurality, or will they look elsewhere after all? Do they really trust Biden or Buttigieg with their electoral hopes against a vigorous and vicious Trumpian campaign?

Is Hillary Clinton (she's obviously eager to run) worth a second go?

And more critically for the Party and the nation: If the chips don't fall their way, what matters most to them? Could it possibly be true that their number one goal is simply that Sanders not win, and the rest will be left to chance, the gods, and their next best efforts after that?

It's a reasonable question. After all, given the construction of our rural-favoring electoral process, a party that doesn't have a plan to save left-behind America — and doesn't nominate a candidate with appeal beyond the bicoastal professional class — may not be playing its strongest cards for a reason.