01 June 2008

A Guest Analyst Weighs In On the RBC Meeting

I frequent several political discourse websites, and have been practically living on them this weekend. The 80/20 rule applies on the internet, though, just like everywhere else - you have to slog through a lot of bullshit to get to the good stuff. My girl CarmenT, a member of the
DailyKos web community, went beyond the call of duty since last night to assemble a damn good argument against the positions Harold Ickes sought to promote on behalf of the Clinton campaign.

It's a lot of verbiage - for those of you who are allergic to that much reading, I've highlighted some key sections. Enjoy.

Brown Man

CarmenT's Commentary

In this diary, I will constrain my commentary on the outcome of yesterday’s RBC meeting to the controversial and inflammatory statements presented by Harold Ickes which by his own admission were made expressly on behalf of Senator Hillary Clinton and therefore in direct conflict with his role on the committee.

While there are numerous other diaries on this and related subjects, a cursory glance at my diary history will show that I have considered these issues on a number of occasions based on careful analysis, and hence feel justified in contributing a further response.

  1. The Constitution does NOT apply
  1. The Rules & Bylaws Committee did NOT determine the delegate allocation
  1. Any bias was in Hillary’s favor
  1. No votes were "stolen"
  1. The Principle of "Flawed Reflection"
  1. Credentials Committee Challenge
  1. Validity of the Election Sanction by the State of Florida
  1. Conflict of Interest

Analysis in full below:

1) Legal Precedent: The Constitution does NOT apply

First of all it is necessary to understand that the contest to determine the nominee of the Democratic Party is not bound by electoral voting provisions in the constitution.

In DiMaio v DNC, and Nelson, Hastings and Brown v DNC, the court determined that since the Democratic Party is a ‘private organization’, it has a right to determine and enforce its own rules. Specifically, although an ‘election’ took place, it does NOT come under the jurisdiction of a Federal Court.

As reported by Krissah Williams from the Washington Post - Florida Voter's Lawsuit Dismissed

A federal judge in Tampa has again tossed out a lawsuit filed by a Florida political consultant angry that his vote in the state's Democratic primary will not count. Victor DiMaio's lawsuit contended that the Democratic National Committee is discriminating against Florida voters. DiMaio argued that party leaders unfairly allowed Nevada and South Carolina to hold their presidential primaries prior to February 5, in part because of the sizable minority populations in both states, but punished Florida and Michigan for skirting the rules.
Judge Richard A. Lazzara agreed with the DNC, which said that it its practices are not discriminatory and political parties have a constitutional right to determine how delegates are selected in their nominating process.

Also in St Petersburg Times - Florida Democrats' lawsuit is tossed

Florida Democrats lost another effort on Wednesday to make Florida's Democratic primary more meaningful on Jan. 29.
The lawsuit was filed by Sen. Bill Nelson, Rep. Alcee Hastings and Rep. Corrine Brown, among other Democrats, against the Democratic National Committee and its chairman, Howard Dean.
Judge Hinkle was not convinced. He ruled that forcing the national party to break its own primary schedule rules by seating Florida delegates would violate the party's First Amendment right to assemble.

Any claim to equate FL & MI election compromise to voter disenfranchisement or slavery is nothing more than divisive politically motivated rhetoric and is not based on fact.

To illustrate what this means, it would be ‘legal’ (with respect to Federal Law) for the nominee to be chosen by a flip of a coin or for all the delegate names to be put into a hat and the first 2000 or so to be chosen.

The fact that the DNC provides for the individual states to determine who their delegates are, is a privilege, not a right.

2) The Rules & Bylaws Committee did NOT determine the delegate allocation

There is no provision in the Democratic Party Charter or Bylaws to enable party committees to determine the delegate allocation per nominee, even though it would be perfectly legal (see point 1 above) to do so if they wished.

The delegate allocation is decided by the STATE and presented to the DNC. In fact, in order to maintain parity with other states and historical precedent, the ONLY reasonable choice available to the RBC to fairly seat the delegates was to accept the allocation presented to them by the state party representatives for each state.

In the case of the RBC meeting held yesterday to determine the fate of MI & FL delegates, the RBC voted to accept the allocation presented by each state, having established (as they are required to do) that the state representatives have acted in good faith to determine an allocation that is fair and reasonable.

Furthermore, there is no precedent or provision to allow a candidate or their official representatives to determine the allocation process. Had the RBC chosen to follow the guidelines of a candidate over the recommendation by the state representatives, it would have set an irretrievably dangerous precedent.

Therefore, it is fair to argue that the RBC could NOT have chosen Clinton’s proposal in so much as it differed from the state’s recommendation even if they had wanted to.

3) Any bias was in Hillary’s favor

According to the DNC Selection Rules, the minimum mandatory punishment for violating the nomination contest timing rules is that the pledged delegate allocation should be cut in half.

There are at least two ways in which the allocation can be reduced, both of which are legal interpretations of the DNC Selection Rules:

a) The number of delegates is reduced by half

b) The vote per delegate is reduced by half

Reducing the number of total delegates by half has the result of narrowing the delegate margin. For example, in a 4 delegate district where Clinton received 3 out of 4 delegates, (a 2 delegate lead), would be reduced to 1 delegate each to Obama and Clinton (no delegate lead).

Thus, by choosing (b), the RBC allowed the relative delegate proportion to remain as current, rather than further narrowed. The RBC, acting within its rights to uphold the DNC rules, clearly sought to preserve a fair distribution, contrary to Ickes’ accusation of bias against the candidate he represents.

4) No votes were "stolen"

In his vociferous arguments, Ickes claimed that the RBC had "stolen" 4 delegates for Clinton and "given" them to Obama

However, in order for ANY delegates to be ‘stolen’, those delegates must have been approved in the first place.

According to the RBC ruling in effect during the period of the 2008 primary elections in MI & FL, no allocation of delegates whatsoever could be sanctioned.

Therefore, the only time that any delegate in either state could possibly be recognized as valid was AFTER yesterday’s acceptance of a majority vote by the RBC to amend its sanctions against MI & FL.

As has been shown in (2) above, the decision to allocate MI delegates in a ration of 69 to 59 in favor of Clinton was made by the state party officials, not by the RBC.

The RBC carefully considered the arguments placed before it by those officials as to their ‘best efforts’ attempt to deliver a representative (arguably a Fair Reflection) allocation of delegates according to the preferences of the members of the Democratic Party in MI.

According to the only measure that counts, the DNC rules & bylaws, Clinton never ‘had’ 73 delegates in Michigan to be taken away. Therefore any claim by Ickes that the allocation was altered can only be valid in the sense that the RBC voted to allow Clinton to receive 69 delegates more than she had before. Also, without an acknowledged ‘fair count’ in MI, since that figure is higher than the 59 to Obama, any concern over bias (given the invalidity of the election) would be in favor of Clinton, not Obama.

Furthermore, now that the delegate allocation has been sanctioned by an RBC majority vote, any adjustment of the allocation that might be considered by future committees could be considered as the very interference that Ickes decries.

5) The Principle of "Flawed Reflection"

On a number of occasions during yesterdays RBC meeting, Ickes raised the concept of "Fair Reflection". Though not a legal or factually provable measure, it is often cited as a standard to which an electoral process should aspire to.

It generally is taken for granted in a democracy that the outcome of an election is a fair reflection of the preferences expressed of the voters at the polls.


But this question is one of the foremost concerns of scholars of public choice. They have maintained for many years that the one thing most people counted on about elections – that the voters, however swayed or manipulated during the sound and fury of the campaign, did end up preferring the winning candidate to others – is open to question in many elections.

Excerpts from: John Haskell (1996) - Fundamentally Flawed – Understanding and Reforming Presidential Primaries, - Chapter 5 – An Introduction to Public Choice and Presidential Primaries

It is relevant to note that Ickes’ abandoned an early attempt to introduce the concept of "Fair Reflection" during the questioning of Wexler’s presentation. One can only surmise that he felt he had met his match against Wexler and pursuing the matter at the time would lead to a defeat of his argument.

Instead he pursued the argument later against what he presumed to be a less adversarial opponent, Levin, who in turn countered with the assertion that there can be no easily definable concept of "Fair Reflection" in a "Flawed Primary".

6) Credentials Committee Challenge

According to Ickes, the Clinton camp reserves the right to take their grievance to the Credentials Committee.

Since Ickes’ argues that the DNC does not have the power to determine the delegate allocations, then neither the RBC, nor the Credentials Committee would have the power to rule in his favor. Hence his case is moot.

Were Ickes/Clinton able to successfully argue the case with the Credentials Committee, the ONLY conceivable outcome that would satisfy his argument would be that 100% of MI & FL delegates be disqualified.

Since the RBC (including Ickes) voted to sanction MI & FL, they invalidated any subsequent election (whether sanctioned or not) by virtue of influencing some voters not to vote as "the election would not count".

Ickes’ and Clinton’s arguments rely on asserting the principles enshrined in the constitution. However, scholars of the constitution will be aware that there is no explicit "right to vote". The constitution does however explicitly assert that no-one should be prevented or influenced not to vote.

Hence, if the argument is that the validity of the MI & FL elections are determined by constitutional principles, the MI & FL elections must be invalid in their entirety. The only constitutionally valid alternative would be to hold a full revote.

7) Validity of the Election Sanction by the State of Florida

According to testimony presented at the RBC meeting, there were at least two reasons given that would legally invalidate any official sanction of the Florida election process.

Firstly, it was universally acknowledged that a significant proportion of voters were ‘discouraged’ from voting at that election. Indeed, Florida State Senator Arthenia Joyner, as an official representative of the Clinton campaign, acknowledged that perhaps 3M voters could reasonably have been expected to turn out for the election had it not been pre-determined that the votes would not count.

Secondly, it was acknowledged that a significant factor that led to the substantial turnout at the Florida election was that a Florida State Constitutional Amendment related to "Property Tax" was also on the ballot. Thus it is reasonable to assume that the demographic of the voters who did participate was unfairly biased towards homeowners to the detriment of those who do not own their own homes.

In both cases, the principles in the constitution and the DNC charter and bylaws, assert the preeminence of equitable representation. Unless those responsible for sanctioning the validity of Florida election are able to prove that no bias existed by virtue of the nature of the items on the ballot, the validity of the sanction is in question.

8) Conflict of Interest

Statements made by Ickes asserted that he was at least in part acting as an official spokesperson and representative for Clinton whilst simultaneously participating in a voting process as a member of the RBC.

While nothing in the DNC rules prevents members of the RBC to hold a private or publicly expressed preference for a candidate, the appointed members of the RBC are required as a matter of course to act solely in the interests of the DNC with respect to upholding the letter and intent of the rules and bylaws so stated. Any alternative agenda could be reasonably considered to be a conflict of interest.

If it had been the intention of the RBC to allow direct representation by candidates on the committee, the rules would have so provided. Furthermore in order to preserve fairness, any such candidate advocate would have to be formally declared as such and potentially be barred from certain votes.

The precedent for this was clear in yesterday’s meeting, as representatives from MI & FL were barred from voting on issues relating to their own state.

As such, Ickes explicit assertion that he is an authorized representative of a candidate, and his use of an independent forum to promote that candidate’s agenda regardless of the views of the majority, as expressed by his threat to dismiss the majority RBC decision and appeal to Credentials Committee is at best disingenuous, and at worst a blatant abuse of privilege for which he must tender his resignation.

The worst thing about all of these "events" which are seen as the next "game changer" for Camp Clinton, like the credentials committee at the convention, is that many of them are not inherently dramatic - they are mostly procedural activities that offer very little leeway to either candidate based on the rules, tests and standards already in place.

I feel as deeply for the Obama campaign as Clintonites do for their candidate, but its the knowledge of the process that helps me put my admiration into context.

Again, I thank CarmenT for taking the time to rebut many of the specious assertions that colored the air around the RBC committee meeting, and for allowing me to share her thoughts on my blog.

Brown Man

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