Lesser evils

In July 1960 in Los Angeles, Charles Springer was facing a choice. As a delegate to the Democratic National Convention, the future Nevada attorney general and state supreme court justice was being tugged in two directions over the presidential nomination.

He was a close ally of Nevada’s governor, Grant Sawyer, who was the chief John Kennedy booster in the Silver State. But both of the state’s U.S. senators, Howard Cannon and Alan Bible, were pushing for their majority leader in the Senate, Lyndon Johnson.

Every vote was precious. Kennedy was believed to be achingly close to a majority—so close that the roll call reached W and Wyoming before he closed the deal. So Springer’s vote was zealously sought. He surprised a lot of people by endorsing Johnson.

That was the way delegates made up their minds then, by considering all views before making up their minds. It was the kind of courtship that’s more difficult today. Springer was a free agent. Today’s delegates are much less so.

The current notion that the delegates should represent the results of their state primaries or caucuses is relatively new. Until the 1960s and later, delegates were expected to use their own judgment to decide the best and most electable nominee for the party. These were the people who were closest to the grass roots, the real experts at running campaigns. Their judgment was well regarded.

But the notion that they were supposed to pick the best and most electable candidates was a nuanced one. Best meant not just capable or skilled but also being good for the party. More than once, party leaders have sacrificed electability to get a candidate they were comfortable with.

Presidential primaries were a 20th century creation, invented by Oregon in 1910. They did not actually have an official part in the delegate selection process for the national nominating conventions, and candidates dabbled in them mainly from necessity. In 1912, Republican Theodore Roosevelt—opposing incumbent Republican President William Howard Taft and progressive Republican Robert La Follette—knew that Taft as an incumbent had the delegate selection process locked up unless he could show party leaders that he could best the president. Roosevelt won nine primaries, La Follette two, and Taft one, and the leaders gave the nomination to Taft, who came in third in the election.

That became common. Party leaders had other agendas than just winning, and in that particular case, keeping Roosevelt from returning to the presidency was one of them. Later leaders, in both Republican and Democratic parties, had other reasons for ignoring primaries.

In 1948 on the Republican side, in 1952 in both parties, in 1956 on the Democratic side, the national conventions rejected the winner of the primaries in favor of other candidates, even when U.S. Sen. Estes Kefauver trounced incumbent President Harry Truman in the 1952 presidential primary—Truman then dropped out of the race—and then swept a dozen more primaries, losing only to favorite sons or unpledged slates.

While all these things were going on, most delegates were still selected as they always had been—in precinct meetings, also called caucuses. A few states held primaries, which got lots of attention, but most states had caucuses, which had a bigger role in the selection of the presidential nominee. Primaries were beauty contests.

In 1960, it was John Kennedy’s turn to use primaries to try to convince party leaders. In his case, they doubted the chances of a Catholic candidate. For the first time, the primaries made a difference for a presidential candidate—Kennedy won every presidential primary he contested and the nomination. He believed delegates should vote as they were pledged but did not call for binding them to candidates.

The 1968 Democratic convention was a turning point. In that troubled year, the Vietnam War haunted the campaign trail. Antiwar candidate Eugene McCarthy came so close to defeating incumbent President Lyndon Johnson in the New Hampshire primary that Johnson dropped out of the race. Robert Kennedy and Hubert Humphrey then entered. Kennedy and McCarthy won all the primaries after New Hampshire and the convention gave the nomination to Humphrey, who carefully stayed out of the primaries.

There had been unhappiness when Kefauver was denied the nomination after winning the primaries in 1952—his followers had a slogan: “No one likes him but the people”—but now there was outrage. McCarthy and Kennedy had made the case against the war, and a war supporter had been nominated. That focused attention on the delegate selection process as never before, and the 1968 convention approved creation of a commission to “aid” state parties in guaranteeing a “full, meaningful and timely” opportunity to participate in delegate selection.

The reform commission, chaired by U.S. Sen. George McGovern, who had stepped in as a late antiwar candidate after Kennedy's murder, found appalling conduct of the process in 1968. In one state, two men selected the state's delegates. Some delegates had been selected well before the issues of the year had emerged. “In Hawaii … proxies were voted at the state convention from unorganized precincts. One such precinct consisted of an urban renewal area comprised largely of vacant lots. In another case, a Missouri party official cast 492 unwritten proxies in a township caucus.” New York had a law forbidding candidates for delegate from disclosing their presidential preferences. Some precinct meetings were simply secret.

In April 1970, the McGovern Commission released its report containing guidelines that were adopted by the Democratic National Committee. (Pat Potter of Carson City was Nevada’s liaison to the commission.) They eliminated practices like instructing delegates, awarding ex-officio delegate seats, and using the unit rule—all guidelines that diluted the power of party leaders. Some of the rules were simple common sense that should have been used all along, such as adequate notice for meetings. The Democratic National Committee had already mandated elimination of racial discrimination, but the commission reemphasized it.

The Democratic National Committee endorsed the guidelines, making them binding on state parties. But two subsequent Democratic presidential nominees were McGovern himself and Walter Mondale, both of whom lost by substantial margins. Party insiders blamed the reforms and convinced the Democratic National Committee to revive ex-officio delegates. These are delegates who, because they hold elective or party office, are automatically national convention delegates, do not need to be elected through the primaries or caucuses, and are not bound to any candidate. Basically, they are party bosses. The notion was that they would stand back, observe the primaries and caucuses, and step in if the party seemed to be choosing someone unacceptable.

The number of primaries had begun to grow, with more than half the states creating them. But even states with primaries have precinct meetings, or caucuses, because caucuses are the way the delegates are selected.

And the process has become much more bureaucratic—paperwork, rules to observe, marks to toe. Some of these are suspected—including in Nevada—of being used by party leaders to work their will and screen out delegates.

The practice of binding delegates to candidates who won in primaries and caucuses increased. In 1980, Edward Kennedy called for releasing delegates as part of his drive for the presidential nomination. CBS News hauled out an old tape of John Kennedy talking about how delegates should abide by their commitments and portrayed it as JFK taking a different posture on bound delegates than his brother, which was false.

The unelected delegates were a problem from the time they were created in 1982, generating suspicion of highhandedness and undemocratic process.

In 1988, their function seemed to be to keep a black man down—Jesse Jackson. In July of that year, shortly before the national convention, columnist William Schneider pointed out that Jackson got 28 percent of the vote in the Pennsylvania primary but got only eight percent of the state’s delegates. With primary results like those plus the fact that the unelected delegates were running 365 to 55 against Jackson, there was little wonder that he wanted the number of unelected delegates reduced.

The Democrats promised Jackson, the second-place finisher in the nominating contest that year, that it would reduce the number of superdelegates from 15.5 percent to 10 percent. The number is now 14.94 percent—30 percent of the total needed to nominate. (It was at 20 percent in 2008.)

The unelected delegates caused other problems. It is little remembered now, but after Bill Clinton locked up the nomination in 1992, a couple of hundred unelected delegates withheld their support, unconvinced that he should be the nominee. For instance, former New Mexico governor Tony Anaya said, “I just didn't find a candidate I felt I could really get passionate about.” He faulted Clinton's association with the Democratic Leadership Council, a group formed to make the party more conservative.

Republicans tended to follow the Democratic process. Some of these changes required changes in state laws, and there’s no way of distinguishing between the political parties in law, so Republicans had to go along. Locally, when Nevada got an early berth in the caucus process, the Republicans grudgingly went along, but more recently have been trying to torpedo it.

The Republicans have their own superdelegates. Each state’s national committeewoman and national committeeman is automatically a national convention delegate.

All along, supporters of Bernie Sanders have been suspicious of the unelected delegates, suspecting that they would try to defeat their candidate. They seem not to be aware that is their job. The whole reason unelected delegates were created was to override primary and caucus voters.

On the other hand, the unelected delegates have slowly been evolving into something far from super. For years after they were created, they held off their decisions on who to support to see if they would be needed to avert some disastrous selection by the voters. But in more recent years, they have been endorsing early, before it is clear where the race is going.

McGovern Commission research director Ken Bode told us in 2008, “I mean, the idea was that they are ballast. They have the right to commit themselves, but the idea was that they would be the kind of people who would be there because of their position, their judgment, their experience, their wisdom, what have you. And if they’re committed early that kind of takes away the original motive for them.”

This year, Bode told the Charlotte Observer, “There is plenty of talk about the Republican convention being rigged. The fact is that the Democratic convention is more clearly rigged. If the GOP had a similar system, you can imagine Jeb Bush getting the lion’s share of the superdelegates before the primaries ever began. Imagine the bellowing we would have heard from Cruz, Trump and the other 14 candidates.”

In 2015, Clinton was piling up unelected delegates long before Iowa, New Hampshire or any state had voted. That rupture of process may have been why Sanders in March said he would go after unelected delegates even if Clinton was winning.

Now, in June, the process has produced two nominees—Donald Trump for the Republicans and Hillary Clinton for the Democrats. It’s a matchup that seems tailor-made for superdelegates. For the first time in public opinion polling history, the two parties have produced two very unpopular candidates for president, both of whom have horrendously high negative ratings in public opinion surveys. If they weren’t facing each other, it would be hard to imagine either winning. The latest NBC survey: “Traditionally a fair number of partisans on either side of the aisle express negative opinions about the other party’s candidate, but the latest poll found that a majority of voters express negative feelings about both leading candidates. Nearly six in 10 Americans said they either ’dislike’ or ’hate’ Clinton, while slightly more—63 percent—expressed negative opinions about Trump. Four in 10 voters said they ’admire’ or ’like’ Clinton, and 36 percent said they ’admire’ or ’like’ Trump.”

That pretty well eliminates the tactic of defining the opponent—both candidates are already defined. Not in the memory of anyone living has there been such a contest of unlikable presidential candidates.

It’s the kind of thing that unelected delegates were created to avert—candidates who turn off the voters. This is the point at which the superdelegates are supposed to jump in and save their parties. But in the Democratic Party, the unelected delegates committed themselves so early they are disinclined to take action now. This is a breach of the original plan for the unelected delegates, but their early commitments have painted them into a corner.

In Nevada in 2008, when Hillary Clinton ran against Barack Obama, all of Nevada's unelected delegates but one—Steven Horsford—supported Clinton, though they began weakening after Obama nailed down the delegates to win. This year, every delegate but one—Erin Bilbray—is again supporting Clinton. (Harry Reid waited until after the caucuses to endorse Clinton.) One of them, Dina Titus, endorsed Clinton before the echo of her announcement of candidacy had faded. Artie Blanco, Ruben Kihuen, Roberta Lange, Andres Ramirez, Chris Wicker—they're not going to do anything to stop Clinton. Democrats are bound by party rules for at least the first ballot but also by their own quixotic loyalties.

In the Republican Party, there is considerably more talk of doing something about Trump. But there is always talk in presidential years about bringing back brokered conventions.

“There is growing speculation that the Republican convention in San Diego this August may turn out to be that rarest of all birds, a brokered convention,” wrote columnist William Rusher about the 1996 convention that nominated Robert Dole on the first ballot. In 1987, columnist Tom Wicker wrote that the Democratic Party’s numerous presidential candidates appeared “to be moving them to a contested and brokered convention.” The ended in another first ballot victory, for Michael Dukakis. The last time a convention nominating contest went beyond one ballot was 1956—and that was for vice president.

To be sure, the Dump Trump effort has gotten further than most of these efforts such as the Anybody but McGovern (ABM) and Anybody but Carter (ABC) efforts on the Democratic side. With Republican leaders like Lindsey Graham and Mark Kirk abandoning Trump, Republicans like Brian Sandoval and Paul Ryan dipping toes in the abandonment pool, conservative radio hosts like Hugh Hewitt blasting Trump, Trump-supporting corporate executives like Carl Icahn and Ken Langone blasting his racial views, and the billionaire’s post-Orlando behavior further inciting his critics, the situation is unpredictable.

But unelected Republican delegates are smaller in number than on the Democratic side, and they would have to be the first line of GOP defense against Trump. In addition, the super status of Republican superdelegates has been undercut by a new party rule providing for them to be pledged to a candidate at least for the first ballot.

One of the unelected Nevada Republican delegates, Lee Hoffman of Elko, is indeed a superdelegate—and a rare one. He is not bound to any candidate. He holds down a delegate slot that was pledged to candidate Ben Carson, who has released his delegates to vote as they wish. But that doesn’t mean Hoffman’s planning to join any anti-Trump effort. This is all the more remarkable because he has been a Trump skeptic all along.

“Personally, I liked Scott Walker, then Ben Carson, then Ted Cruz,” he told the Las Vegas Sun at the Nevada Republican Convention last month.

But now he says he’s not going to try to impede a candidate who played by the rules and won.

“I think Mr. Trump has secured enough delegates to win the nomination, he did it under the rules in all the states, so as far as I am concerned he is the nominee,” he said. “I believe in process as much as I believe in individuals and since that is where the process has gotten us, I am not going to support any attempt to manipulate rules or to create any new candidate.”

Republican National Committeewoman Diana Orrock was not available for comment.

If this year’s choice is the outcome of more and more primaries, it’s difficult to make the case that the process today works better than it once did. There was a time when party leaders would have stepped in to stop candidates with such high antipathy ratings, but that protective fuse has melted. The country is facing a campaign in which both parties are going to have to urge their own supporters to vote for someone they really don’t want, using the argument that the other side is worse, not an exploration of issues. It will likely be, even by U.S. standards, record breaking in its negative tone. As Mort Sahl would say, Darwin was wrong.

The Democratic Party’s dilemma is of its own making. The outcome of the Republican quandry is yet to unfold. Remarkably, given how distasteful and destructive they find his racial views, a lot of Clinton’s supporters are hoping the Dump Trump folks fail. It’s her best hope of winning—though if GOP leaders succeed in displacing Trump, they will have to deal with the rage of his followers.