an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As the prospects for a contested Republican National Convention grow (floor fights, delegate credential challenges, minority platform planks, multiple vice-presidential nominees--think of the possibilities!), a political process guy like me is delighted. One thing that is especially interesting in this race, as it was in the 2008 Democratic primary, is the strange way that the parties choose their convention delegates. Some states use caucuses. Some use closed primaries. Some use open primaries. Some are winner-take all. Some are proportional. Territories that cannot vote for President get delegates. Ex-pats get delegates. There are party officials who are unelected delegates. And so on and so on.
The most peculiar feature to me is that the GOP does not award delegates on a one-person, one-vote basis as between states. Instead, the party gives bonus delegates to states that vote Republican more reliably in general elections. The party also takes away delegates from states (this cycle from Florida) that do not follow the agreed-upon schedule
Here's my question. The Supreme Court held in 1944 that a state political party may not exclude African-Americans from voting in its primaries. In other words, a political party can be a state actor under the Equal Protection Clause. If so, could the current rules for allocating convention delegates violate the Supreme Court's cases on "one-person, one-vote?"
There are several possible grounds for saying no. The state action doctrine is relaxed when racial discrimination is at issue, so maybe political parties should be free to allocate votes unequally in other ways. Maybe a national party is distinguishable from a state party in a meaningful way. Since the reapportionment cases do not apply to interstate disparities in voting weight (neither the Senate nor the House of Representatives comply with "one-person, one-vote" as between states), maybe that bars such a claim for interstate convention delegate disparities. Or (and this may be the most intriguing thought) perhaps decisions by a national convention are final and not subject to judicial review at all--it's a political question. Posted
by Gerard N. Magliocca [link]
The House and Senate as between states is not covered by the cases basically because the Constitution sets that up as the rule. Not sure if that would help the party here.
It might be different if the only reason for the discrepancy was that it was patterned after what states received in the Electoral College.
Taking away delegates from states that break the rules seems arguably okay. We have something like that nationally (Am 14, sec.2; republican government clause as applied during Reconstruction).
Morse v. Republican Party of Va is a statutory case but suggests that limits aren't only for race; there some concern about "poll taxes" were referenced, which is also by class. Broader concern for equality.
But, Rick Hasen raised a form of this question four years ago and explained "probably not"