A Possibly Super Problem

How likely is it that the Democrats are in for a bitter nomination fight, even on the floor of their convention in Denver in late August? Perhaps not very. After Barack Obama’s victory over Hillary Clinton in Maryland, Virginia, and the District of Columbia on February 12, he assumed a lead in the count of pledged delegates (those apportioned according to votes won) that seemed suddenly almost insurmountable.

NBC’s Chuck Todd and Tim Russert, for example, estimated after Obama’s trifecta that Clinton would need to win 55 percent of pledged delegates—which, because of the complex and varied ways in which delegates are awarded, would require winning more than 55 percent of the vote in most states—in all seventeen remaining contests to draw even in the delegate count. For a candidate who to that point had won only ten of thirty-three contests, that seems a virtual impossibility; certain of the remaining states appear to be Obama strongholds (Mississippi on March 11, North Carolina on May 6, Oregon on May 20).

Obama’s astounding wins on February 19 in Hawaii and especially Wisconsin, where, according to exit polls, he defeated Clinton across all income and education groups among an electorate that was 87 percent white, left Clinton with few options. She now must not only win Texas and Ohio (March 4) and Pennsylvania (April 22), but she must also win all three by substantial margins to make a persuasive claim on staying in the race. No less fervent a Clinton supporter than James Carville, speaking the day after the so-called Potomac primaries at a homebuilders’ trade show in Orlando, said that “if she loses either Texas or Ohio, this thing is done.” If Carville says so, it will likely congeal into conventional wisdom.

After Wisconsin it was difficult to imagine how, short of all-out attack that risks severe backlash, Clinton could regain momentum. But Ohio and Pennsylvania remain potentially friendly territory, and she still has a strong ground organization in Texas. So suppose she does well enough in those three states, and some others, to come within, say, one hundred delegates of Obama. Both camps seemed to agree that a one hundred-delegate margin constitutes a fair definition of competitive.¹ In that case, we will have a fight, and potentially a very ugly one, involving both the superdelegates—the 795 party and elected officials who get to cast their votes as late as the convention, after studying the prevailing winds—and the disputed Florida and Michigan delegations, which include 366 delegates.² In both cases, especially the latter one, it is worth examining how the fight was started, and by whom.

Every four years, both parties establish rules under which the upcoming presidential race will be fought. For this election cycle, the Democratic National Committee (DNC), headed by Howard Dean, established a Rules and Bylaws Committee (RBC), chaired by former Clinton secretary of labor Alexis Herman and James Roosevelt Jr., grandson of Franklin Roosevelt, to formulate the rules under which states were to select their delegates. The committee presented rules that, in August 2006, were adopted by the DNC; various sections dealt with matters such as compliance with affirmative-action requirements. But the most important had to do with the calendar.

The RBC was the obscure forum in which the much-publicized battle over which states would join Iowa and New Hampshire in early voting—the “pre-window period,” in the argot—was fought. The RBC added South Carolina and Nevada and ruled that no other state could hold its primary or caucus before February 5. (This is how February 5 came to be “Super-Duper” Tuesday, as more than a dozen states pushed forward their primaries to the first legally permissible day.)

Other states were unhappy with this decision, notably Florida and Michigan, which have long sought to increase their influence over the nomination. On May 3, 2007, Florida voted to defy the RBC and hold its primary on January 29. In mid-August, Michigan followed suit, moving its primary to January 15.

Leaders in both states were warned repeatedly that continued defiance of the DNC could result in at least 50 percent or even 100 percent of any delegates awarded from a primary held in violation of the calendar being “stripped,” i.e., excluded from voting at the convention. Not quite believing that the DNC would follow through, neither budged. Then, on August 25, 2007, the RBC found Florida in noncompliance of its rules. The state was given thirty days to amend its decision, but again did nothing. Since other states were at the time angling to get in on the early voting—you may recall that Iowa and New Hampshire threatened to move theirs to December 2007 in order to remain first—the RBC decided to make an example of Florida. It ruled that all its elected delegates would be voided. The vote of the thirty-member committee had only one dissent.³ Florida could go ahead with a primary if it wished, but its voting would constitute a mere “beauty contest”; as far as the DNC was concerned, it would be as if the Florida primary didn’t exist. Florida sued in a federal court and lost. The same process ensued later with respect to Michigan.

All of the Democratic campaigns were notified that Florida and Michigan would not count. As far as is known, none protested at the time. On August 31, all campaigns received a letter from various officials in the four early-voting states asking them to sign a pledge not to campaign in Florida and Michigan. Within a day, all campaigns agreed. Patti Solis Doyle, the recently fired Clinton campaign manager, said at the time:

We believe Iowa, New Hampshire, Nevada and South Carolina play a unique and special role in the nominating process…. We believe the DNC’s rules and its calendar provide the necessary structure to respect and honor that role. Thus, we will be signing the pledge to adhere to the DNC approved nominating calendar.

People in Florida and Michigan were unhappy, but everyone else was in agreement.

So things remained, until January 25, 2008. That day, seemingly out of nowhere, the Clinton campaign released a statement announcing that she now supported the seating of the Florida and Michigan delegates. What changed? The answer is obvious. In September 2007, Clinton was the front-runner and the all-but-inevitable nominee. By late January 2008, she was in trouble. She’d lost Iowa, won narrowly in New Hampshire and Nevada, and was about to lose South Carolina the next day by a two-to-one margin. She knew now she had a fight on her hands; she had to scramble for all the delegates she could.

Transparent as that conclusion seems, the Clinton legal case is not without merit. Harold Ickes, who works for the Clinton campaign and is a member of the RBC, stressed to me that “the campaigns were not party to the decision that stripped the delegates” and that they agreed only not to campaign in the states. The Clinton team says that it was Obama who broke the no-campaigning pledge by running nationwide television ads that were shown in Florida. The Clinton campaign did not agree that all the states’ delegates should be stripped.

This is true, and it’s also true that in November Michigan and Florida will be important states whose voters should be given consideration and not be offended, which is the moral claim that Clinton has used to justify her arguments. But it’s odd that it didn’t occur to the Clinton team to dispute the RBC’s treatment of the two states until after she saw she wasn’t invincible, rather than in August 2007.⁴ When the elections took place, Clinton won Michigan 55 percent to 40 percent over “uncommitted” (Obama and John Edwards had their names removed from the ballot) and Florida 50 percent to 33 percent over Obama. So it was only after it was clear that they were voting for her, and that significant portions of other states were not, that Clinton began demanding that the voices of the voters of Florida and Michigan be heard.

The stakes are enormous. There are no official counts of what Clinton’s wins in Florida and Michigan might have been worth in delegates; remember, as far as the DNC is concerned, the primaries didn’t take place, and in effect they didn’t since we can’t know what the outcome would have been if Obama and Clinton had campaigned in those states. But one Web site that tracks these matters reckons from the votes cast that Clinton would have won 192 delegates from the two states and Obama 72—a combined swing in Clinton’s favor of 120 pledged delegates (the estimate doesn’t include superdelegates).⁵ This would put Clinton in or near the lead, even after her disastrous run of eight straight defeats on February 9, 10, and 12. Much that Chuck Todd and Tim Russert calculated with regard to obstacles facing Clinton would be true of Obama. Even if he had an edge in the popular vote, his back would be against the wall.

What are the remedies? There are two possible ones. First, a negotiated settlement between the states and the DNC could take place (the campaigns would have no role in such negotiations, although their partisans in the state delegations would of course see to their interests). Democratic Party officials I spoke with indicated that negotiations were underway and a solution could consist of basically anything the two states and the DNC could agree on. For example, half the delegates could be seated according to the January 15 and January 29 votes, and half according to the overall popular vote across the entire primary season (as of February 21, Obama led the popular vote roughly 10.3 million to 9.4 million, not including Florida and Michigan). DNC Chairman Howard Dean is working on such a settlement; some feel he could do more to persuade the two states to negotiate.

Alternatively, the two states could decide to rerun their elections, probably as caucuses, sometime between now and early June. This is the outcome preferred by many officials in the DNC hierarchy, but it seems very unlikely. Both states engaged in negligent and blatant rule-breaking. But political leaders in the two states have indicated very clearly that they expect that their political muscle will win the day, and that the DNC will eventually cave in. Mark Brewer, the Michigan Democratic Party chairman, who is also a member of the RBC, said in mid-February that rerunning the vote would not happen. Florida officials have said much the same.

The RBC, which has jurisdiction over this situation until June 29, would have to approve any plans for a re-vote. The committee has thirty members. One co-chair, as noted, is Alexis Herman, a former official in Bill Clinton’s cabinet. Brewer is also a member. Of the other members, twelve have pledged their support to Clinton as superdelegates.⁶ Only four are supporting Obama. It seems unlikely, given the committee’s membership, that if the race were close enough, it would buck Clinton’s wishes at a crucial moment on a sensitive matter.

If the matter isn’t resolved by June 29, then it will fall under the jurisdiction of the credentials committee, which will be a committee of the Democratic National Convention. That committee, which hasn’t been formed, will consist of 186 members, 25 of whom have been named by Howard Dean. The remaining 161 have not yet been named and will be apportioned according to vote totals in the states’ primaries and caucuses. According to the formula, the larger states will be slightly overrepresented.

And this, finally, brings us back to Denver. Depending on how the rest of the voting shakes out, the possibility exists of a convention floor fight over the seating of these delegates. And 120 delegates, the estimate of Clinton’s gain that I cited above, could prove decisive. So imagine this situation. Clinton trails Obama by, say, eighty or ninety delegates. Her campaign has already said it will fight if she is within one hundred. If she has won more large states—so far she has won New York and California and she might possibly win Ohio, Texas, and Pennsylvania—her forces might be overrepresented on the credentials committee. Interestingly, it, too, is chaired by Alexis Herman and James Roosevelt Jr. (as well as Eliseo Roques-Arroyo). So we will have a circumstance in which the candidate who is behind but who has a functional advantage on the committee handling credentials might be able to muscle through a vote that gives her a sufficient number of delegates to vault from second place to first.

Would the Clinton campaign do that, risking the fury of millions of Obama backers—on national television no less? Democratic leaders have started warning her against that course. “It would be a problem for the party if the verdict would be something different than the public has decided,” House Speaker Nancy Pelosi said on February 15. But the Clinton team’s aggressive exhortations in behalf of seating the delegates, issued by spokesmen and the candidate herself repeatedly since January 25, do not suggest that if the time arrives to show her hand, she will meekly fold it.

The odds in favor of such an outcome are slim. One way or another, the super-delegates will probably seal the nomination in such a way that an acrimonious floor fight can be avoided.

The superdelegates were created after the 1980 election to give some influence to party officials, who had been essentially written out of the nominating process by the liberal reforms of the previous fifteen years.⁷ They can commit themselves to a candidate early (to help him or her establish momentum) or late (to help conclude matters); the fact that they don’t have to commit themselves until late in the process maximizes their influence, and in the first election in which they were a factor, they were instrumental in helping Walter Mondale stave off the insurgent Gary Hart in 1984. Ever since, the assumption among politicians has been that the superdelegates rescue the candidate favored by the Party establishment, as represented largely by the superdelegates, some other prominent Democrats, and big donors. To be sure, as I write, Clinton leads Obama by about 80 superdelegates (different news organizations offer different counts). But only about 380 have committed themselves, leaving 400 or so yet to decide.

It is true that the superdelegates will back the establishment candidate; that is unsurprising. What is surprising, however, is that the establishment candidate might well be Obama, not Clinton. If Obama were to win either Texas or Ohio, or even come close to winning, superdelegates would start tumbling in his direction, and pressure would mount on Clinton to quit the race. But here again, the Clinton team’s public comments have suggested that she is willing to fight to the end. The day after Clinton’s Potomac primary debacle, her chief strategist Mark Penn told reporters that “this is a nomination system that exists of caucuses, primaries, superdelegates and also the issue of voters in Florida and Michigan.”⁸ In other words, Penn seemed to be implying that the battle for superdelegates was a fight all its own, and that Clinton could win it—and thus the nomination—even having lost the five-month battle for votes and delegates.

It is reasonable to expect that Obama should at least perform well in Ohio and Pennsylvania, two states Democrats count on carrying in November. However, if he loses both states and still wins the nomination, he will have done so without having won any truly large states that are seen as needed for a Democratic victory—with, say, fifteen or more electoral votes—except Georgia, his home state of Illinois, and possibly North Carolina. He will have won several states in the ten-to-fifteen-electoral-vote range, but Clinton partisans will argue in such a case that Obama, for all his victories, did little to prove that he could win large states in November.

It’s a fair point. But the other side of the argument is that Clinton has shown weaknesses, too. She has repeatedly sized up races—some in states where Democrats need to be competitive this fall, such as Minnesota, Colorado, and even Virginia—that her team concluded she’d lose and chosen not to compete in them; and she’s then tried to act as if the losses somehow didn’t count because she didn’t “really” campaign there (“My husband lost Maryland when he was running in the primary,” she said on February 13). But those votes, and those delegates, count.

Ever since Obama began to show strength, there has at times been an air of condescension about the Clinton people, as if they still couldn’t quite believe that voters are taking Obama seriously compared to her—even though Obama has been making inroads into constituencies she has counted on, such as white working-class voters. If, after having lost a large majority of states, the overall popular vote, and the pledged delegate count, she were to secure the nomination on the strength of getting Florida and Michigan seated and wresting a bare majority of superdelegates, there would be a deep and widespread reaction that she muscled her way to the nomination. The voters can help avoid this outcome, either in her favor or Obama’s. But the fact that the Clinton campaign seems willing to win that way tells us something about the desperation in the camp of the erstwhile inevitable nominee.

—February 21, 2008