Bernie Sanders wants to lead a political revolution — at the Democratic National Convention. As Republicans debate the possibility of a brokered convention disrupting Donald Trump's march toward the GOP presidential nomination, Sanders is hoping to keep Hillary Clinton from becoming the Democratic nominee with a new effort to win over delegates who are already pledged to her campaign.
Despite being trounced by Clinton in five states Tuesday, the Sanders campaign told reporters this week that not only do they expect the second half of the primary to add to their delegate count, they also believe Clinton’s pledged delegate lead might start to erode if pledged delegates see Sanders doing well and decide to support him instead of Clinton. But the odds of this new strategy working out, election law experts say, are about as likely as a Republican-led Congress embracing Sanders’ socialist vision for America.
“It’s not a realistic strategy. It’s a sign of desperation on the part of the Sanders campaign,” said Daniel Tokaji, an election law expert and professor at the Ohio State University. “Given the results of Tuesday, it is practically impossible to prevent Hillary Clinton from getting the majority of the pledged delegates.”
Sanders senior strategist Tad Devine made the case Wednesday on a call with reporters that, despite pledged delegates getting their spots based on Democratic votes in primaries and caucuses, they are free to switch which candidate they represent based on personal preference. He pointed to the Jimmy Carter campaign in 1980 and said that before Carter won the Democratic nomination, the campaign was “deeply concerned about the defection of pledged delegates.”
“We don’t have a plan at the moment to be calling all the Clinton delegates, you know, once they get selected and try to persuade them individually to be for Bernie Sanders,” Devine said when pressed by a reporter. “But we do believe that if we can succeed in the second half of the process as much as Hillary did or even more so, that there will be enormous pressure on people who are going to be delegates at this convention to do the right, responsible thing.”
This might sound confusing, but here's how the nomination process works: Typically, people think of superdelegates, who are party leaders or elected officials, as the ones who can choose which candidate to support based on personal preference. On the Republican side, pledged delegates are bound to vote for the candidate they represent through the first round of voting at the party’s summer convention. Only if voting continues for multiple rounds can those delegates switch their allegiance and make deals with other candidates. That's how GOP leaders hope to keep Trump off the ballot in November.
On the Democratic side, it's a little different. Election law experts said the Sanders campaign is correct that Democratic delegates are “pledged” and not “bound” like Republican delegates. But they added that the scenario of pledged delegates switching sides is extremely unrealistic.
“Technically they're not bound on any ballot. The rules say they are selected ‘in good conscience,’” said Joe Sandler, an expert on election law who served as general counsel for the Democratic National Committee for 15 years and was general counsel to several Democratic National Conventions. “The idea being that delegates are selected to fill a slot that’s representative of how the state voted.”
The official wording in the DNC’s 2016 delegate selection rules handbook is: “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.”
Each state has its own process for selecting pledged delegates, but there are three categories of Democratic delegates that apply everywhere: those selected at the Congressional district level, those selected at the statewide level and delegates who are party leaders or elected officials. All these are separate from superdelegates, who are automatically delegates based on their status.
— Hillary Clinton (@HillaryClinton) March 6, 2016
Sandler said the Democratic delegate selection process is set up so that delegates are inherently loyal to a particular presidential candidate.
“The practical reality is that not only do these folks sign a pledge to support a candidate, but we have candidates’ right of approval,” Sandler said. “In all of those systems, the presidential candidates get a list of those seeking to be delegates, and they can disapprove of those they’re not sure are committed to them.”
This means that before delegates are finalized in each state, both Clinton and Sanders will be able to look over the list and make sure their delegates are people who have worked for their campaigns, donated to them or otherwise shown they will be loyal. Sandler added that because Clinton and Sanders each have plenty of supporters, he expects them to have no problems filling their delegate spots with people who are overwhelmingly friendly to their cause.
Another hurdle to the Sanders’ campaign plan is that some Democratic state parties put delegates on the ballot, meaning those people have to work hard and campaign to win their spot.
“When you’re going through the process to run for a delegate, whether its for Bernie or Hillary, it takes a lot of time and effort to run as a delegate, to bring hundreds of people to vote for you,” said Matt Fenlon, executive director of the Massachusetts Democratic Party, where delegates are elected. “You’re going to be committed to your candidate.”
As of this week, Clinton holds a 300-delegate lead over Sanders and has won twice as many nominating contests. Many have said it will now be very difficult for the Vermont senator to overtake the former secretary of state — he would need to go from losing the average state by double digits to winning the average state by that margin, according to a FiveThirtyEight analysis.
Once Clinton gets a majority of the delegates, both Tokaji and Sandler said they could not imagine pledged delegates would switch allegiances to vote for Sanders. But ahead of contests Tuesday in Arizona, Idaho and Utah, where Sanders could do well, his campaign is looking forward.
“Our process is dynamic; it is not a static process,” Devine, the Sanders strategist said. “You have to understand it, and you have to try to take advantage of the opportunities.”