Rule 40 is widely understood to mean that you can’t be considered for the nomination at the convention unless you’ve won a majority of delegates in eight states. Trump’s already met that threshold; Cruz, I believe, is right on the cusp of it and should get there next month. But … that’s not exactly what the rule says. This is what it says:
(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business
In order to satisfy Rule 40, you don’t get to point to the vote totals of each primary. You need to present written support from a majority of delegates in eight different states. In a normal year like 2012, when most of the delegates were personally loyal to the candidate who clinched a majority during the primaries, that’s no sweat. This year is not normal. Thanks to Cruz’s delegate-wrangling wizardry, many delegates who are pledged to Trump on the first ballot aren’t personally loyal to him. One stark example is South Carolina, where Trump won all 50 delegates by winning the primary in February but where Cruz has been quietly recruiting his own loyalists to fill South Carolina’s delegate slots. What you’re destined to see at the convention is Trump getting all 50 SC votes on the first ballot and then dozens of that state’s delegates defecting to Cruz on the second. The rules require them to cast that initial vote for Trump — but the rules are ambiguous about whether they’re required to sign a written statement affirming a majority for Trump for Rule 40 purposes. What if a South Carolina delegate who’s personally loyal to Cruz refuses to sign a statement for Trump before the first ballot? In theory, despite winning dozens of states, Team Trump could be blocked from being nominated even on the first ballot because they can’t find majorities in eight different state delegations who are willing to sign. In fact, theoretically, Trump could clinch 1,237 delegates before the convention and still be thwarted on the first ballot because he can’t find enough written support, thanks to the many, many Cruz loyalists who’ll be filling delegate slots coast to coast.
Tennessee is iffy (state party dels are anti-Trump) and Trump could fall below the 8 without majorities in one of MD, CA, WV, RI.
— Patrick Ruffini (@PatrickRuffini) April 13, 2016
Now, let’s be realistic. It’s unlikely that delegates who are bound to vote for Trump on the first ballot would try to block him from the nomination by refusing to sign a Rule 40 written statement (especially if he’s clinched 1,237 delegates). If they’re that adamantly opposed to him, they could always bug out during the floor vote on the first ballot and withhold their support that way. No need for a big squabble over the meaning of Rule 40. Another possibility is that Rule 40 will be read so that someone other than the delegates themselves is empowered to provide a written statement attesting to majority support — at least on the first ballot. You could reason that since Trump’s delegates are bound to him for that ballot, there’s no need for them to personally attest to their support in writing. Reince Priebus or the head of their state’s Republican Party could sign something stating that Trump won a majority of delegates in the state according to the party’s rules for the primary and therefore he’s satisfied Rule 40 — again, at least on the first ballot. Where this starts to become a major problem for Trump, though, is on subsequent ballots, when the delegates are no longer bound. In that case, he really will need to produce written support from a majority in eight different state delegations. If he can’t do it, he can’t be formally nominated. Which means it’s at least possible that Ted Cruz will be the only candidate whose name is placed in nomination on the second ballot. Team Cruz may argue at that point that since he’s the only candidate eligible to be nominated, he should be nominated by acclamation, without needing proof of 1,237 delegates. Even if that argument fails, it’ll be a double blow to Trump’s viability to have him not only losing hundreds of delegates to Cruz on the second ballot but failing to even meet the threshold for nomination. This is where we’re headed, I think.
Unless, that is, Rule 40 gets rewritten at the convention. Remember this post when the debate begins, because Cruz’s delegates on the Rules Committee will obviously be trying to rewrite the rule to require as much personal, written support from individual delegates as possible while Trump’s delegates will be trying to eliminate that requirement altogether. Who wins?