Can Gingrich’s challenge in Florida succeed?

Newt Gingrich wants Florida to apportion its delegates proportionally, not winner-take-all.  So does the RNC, at least officially.  Rule 15(b)(2), adopted in 2008, says that any primary or caucus that takes place before March 1st with the exceptions of Iowa, New Hampshire, Nevada, and South Carolina, “shall provide for the allocation of delegates on a proportional basis.”  However, can the RNC actually enforce this rule?  Even the RNC doesn’t think it can, as its top attorney, Bill Crocker, and one of its subcommittee chairs, John Ryder, explain:

With regard to proportionality, the RNC does not have the authority to intervene in a state’s primary plans beyond the imposition of the Rule 16 penalties.  A contest procedure exists for challenges to a state’s delegation or delegates.  The RNC cannot consider any issue regarding Florida’s delegation unless and until a proper contest is brought.  If a contest is properly and timely filed, the Committee on Contests and the RNC will have the opportunity to hear the contest and determine if there are any further steps to be taken beyond the penalties that have already been imposed.

Reid Wilson at the National Journal says that Rule 16 is as far as the RNC can go, which involved the loss of delegates to the convention, as well as a number of other perks and privileges.  Case law favors the state GOP on its decision to stick with winner-take-all:

What’s more, taking the fight to court isn’t likely to produce a favorable outcome for Gingrich. Courts have repeatedly held that control of the process by which a party nominates its candidates is protected by the First Amendment’s right of association (Most recently, the Supreme Court decided, in California Democratic Party v. Jones, that even an open primary in which non-party members voted violated a party’s rights). Good luck convincing a federal court to intervene in internal party rules.

We’ve said it before, we’ll say it again: Knowledge of the rules of the game makes a big difference. It’s why President Obama beat Hillary Clinton in 2008. It’s why Gingrich isn’t on the ballot in Virginia. And it’s why Romney remains in control of this race.

The key difference is that the RNC has the authority to dictate the terms of its own convention.  It does not have the authority to dictate to state Republican Parties how to choose their delegates, or how to allocate them, regardless of Rule 15(b)(2).  One can actually see this in the chaotic mess of the last two nominating cycles.  Just as the RNC could not directly prevent states from rescheduling their primaries and caucuses, they cannot dictate the outcomes except to limit their overall participation at the convention.  As an inducement to stay in the schedule, that turned out to be less effective than the RNC hoped.

In short, it’s up to Florida, not the RNC, whether it goes with a winner-take-all or proportional allocation to fill its truncated delegate allowance.  Gingrich can fume — and with some justification — but the RNC can’t enforce that rule, and now say they won’t bother to try.

Slate takes a closer look at the problems that led to Gingrich’s loss and the issue being raised at all:

Romney’s consultant-driven campaign was in a less theoretically minded phase. It had already developed micro-targeting scores that predicted the likelihood that every Republican in the state would support Romney, a substitute for the reams of individual data that state parties would have compiled from their past interactions with voters.  The micro-targeting models offered early confirmation to Romney’s advisers that the candidate was appealing to an entirely different segment of the electorate than he had in 2008, when the former Massachusetts governor positioned himself to the right of John McCain and Rudy Giuliani. But the micro-targeting scores also helped Romney’s campaign develop tactics for managing early and absentee votes, which together ended up providing one-third of the total cast in the state. When ballots were sent out beginning Dec. 28, Romney’s campaign was able to chase those sent to likely supporters or those his system had classified as pesuadable.

By the time Gingrich opened his Central Florida office in Orlando on Jan. 13, Romney had been diligently accumulating votes for weeks.  Gingrich’s campaign had no micro-targeting program, relying on its automated survey calls to identify Republican voters in the state and pinpoint their first and second choice candidates in the race. Those who had marked themselves undecided were put in a queue to receive a live call from a volunteer.  Their scripts had a simple message for voters who affirmed they were still undecided: Watch the debates. Callers recited times and channels—“It’s on CNN tomorrow night at 8”—as though they were reciting broadcast promos for the cable networks.

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