The apparent ascendancy of Barack Obama may deprive political junkies of the spectacle of a brokered Democratic convention. If his momentum holds through the Wisconsin primary and on to March 4 he may hold a clear advantage in pledged delegates -- those selected through primaries and caucuses -- that superdelegates, even those still under the spell of the Clintons, would be loath to overturn.
Still, the issue of Michigan and Florida will remain. The Democratic National Committee, of course, stripped these two states of all of their delegates when those states jumped the queue and in contravention of the DNC primary schedule set their primaries before February 5. As a result, none of Michigan's 156 delegates or Florida's 185 delegates will cast votes for the presidential nominee.
Moreover, 600,000 votes cast for Hillary Clinton (who cleverly left her name on the ballot while others meekly followed the DNC rules) in Michigan and 1.8 million votes in Florida (where Hillary won but no candidate actively campaigned) will be discarded.
The problems this poses for the Democrats are political, not legal. It is well established through a line of Supreme Court and lower court decisions that the political parties can set virtually any rules they wish for selecting a nominee. Burt Neuborne, NYU law professor, explains succinctly that "political parties are free to structure their nominating processes any way they want, as long as they don't discriminate on the basis of race." Most recently, Senator Bill Nelson's failed district court case in Florida (Democratic Party v. Jones) showed that the courts have little interest in meddling with the internal rules of a party, regardless of how important the stakes.
However, the issue is not merely a legal one for the DNC or for the potential nominee. This is, you will recall, the same party that championed the cry of "count every vote" when George Bush and Al Gore fought over Florida's vote and again when the results from Ohio in 2004 showed a close, election-ending victory for Bush. Then the party officialdom, egged on by the usual gang of liberal civil rights groups, argued that even though the result might not produce a different outcome the principle of making every citizen's vote matter was paramount.
In anticipation of an ugly floor fight and to avoid offending voters in two key states the DNC may try to broker a "deal," a compromise of sorts to count or partially count the prior returns and have a new caucus or convention in the spring so Michigan and Florida voters can have a say. Clinton would like nothing better, of course, ideally to vault her into the lead in the delegate count or, at the very least, to demonstrate an underlying weakness in her opponent and pique the superdelegates' interest in swinging the nomination her way. Obama, on the other hand, likely wants no surprises, no recount, and no rule changes at this point.
Aside from the delicious possibility that the Democrats will be tied up in knots and create real excitement at the convention, political observers and operatives have reason to be concerned about the outcome of this fight. On one hand, the ability of the parties to make and enforce rules is at stake. As pollster and political analyst Charlie Cook puts it, "This is a fight over whether appropriately-adopted party rules matter, or whether there is electoral anarchy, with any state doing what they darn well please." If there is any hope to enforce a more rational primary calendar in the future, the DNC must stick to, or be perceived as sticking, to its guns.
However, the Democrats' own rhetoric is coming home to roost. The NAACP Chairman Julian Bond has already written a letter to DNC Chairman Howard Dean expressing "great concern at the prospect that million of voters in Michigan and Florida could ultimately have their votes completely discounted." Upping the ante, he went on to contend that excluding these delegates would revive memories of the "sordid history of racially discriminatory primaries."
On a more mundane partisan level, Democrats would be wary about telling voters from the always key state of Florida that, unlike 2000, their votes really shouldn't count. Republicans would certainly like nothing better to welcome snubbed Florida Democrats with open arms.
So even though the nomination may not hang on it, the ongoing battle over Michigan and Florida's delegates may prove to be an ongoing source of agony for the Democrats. That can only mean one thing for Republicans: grab a bag of popcorn and enjoy the show.
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