Fixing Another Florida (and Michigan) Fiasco

Oh, no, it could be Florida again: a disputed election, a tainted result, and a Democratic fiasco. But this time, add Michigan to the mess.

If the contest for the Democratic nomination continues to be close, there is a risk that the decisive issue will be a procedural question--the seating of the 366 delegates from Michigan and Florida at the Democratic Convention--and that whichever side loses, the nomination may be regarded as illegitimate.

But unlike 2000, this year the Democratic Party itself--the Democratic National Committee, the two state parties in Michigan and Florida, and representatives of the Clinton and Obama campaigns--could negotiate a resolution to avert damage to the eventual party ticket. The resolution might include a round of caucuses in both states in early June to choose delegates whom the national party and all sides could accept as fairly chosen. And, if the race goes that far, those caucuses could tip the nomination one way or the other.

As things currently stand, none of Michigan’s 156 delegates or Florida’s 210 delegates will be going to Denver for the convention (the party has even excluded them from hotel accommodations).

Both state parties lost their delegates because they refused to abide by the rules of the national party regarding the timing of primaries and caucuses. Last year, the state governments in Michigan and Florida adopted legislation advancing their primaries to January, despite Republican as well as Democratic Party rules allowing only four states--Iowa, New Hampshire, Nevada, and South Carolina--to hold caucuses or primaries before the first Tuesday in February.

In response, the GOP cut the representation of Michigan and Florida in half, while allowing the candidates to campaign for votes in both states’ primaries. But the Democrats’ Rules and Bylaws Committee stripped all delegates from Michigan and Florida and ruled that any candidate who did campaign there before the voting would be ineligible for any of their delegates (should they later be qualified).

The Democrats’ rules committee did give each state party 30 days to modify their plans--for example, by creating a post-primary round of caucuses to choose delegates to the convention. If the state parties had taken that route, the primaries would have only been straw polls. But because both parties refused, it wasn’t even “a close question” as to whether the states would retain their delegates, according to James Roosevelt, Jr., the rules committee co-chair “Neither state made an effort to comply with the rules.”

Although the 30-day window for creating an alternative has passed, Roosevelt added that if the state parties were now willing to run caucuses, it would “still be possible” to revive that option.

At the time of these rulings last year, Democratic leaders in both Florida and Michigan thought the party’s eventual nominee would nonetheless insist that the two states’ delegates be seated at the convention. In other words, the state leaders were assuming that a clear choice for the nomination would emerge from the primaries without counting their own delegates--in short, that their own delegations would, in practice, be irrelevant!

Ironically, Michigan and Florida could matter far more than their own party leaders imagined. And the states might be influential not because they tried to leap-frog in front of others, but because they would come last if they hold caucuses in June.

Of course, if the 2008 election does follow the pattern of recent history, the state party leaders’ original expectations could still turn out to be right. Either Clinton or Obama could emerge with a clear victory from the primaries, and the winner would then probably prevail on the credentials committee of the convention to seat the Michigan and Florida delegations so as not to offend the voters in those states.

But what if one or the other candidate has only a narrow edge when the primaries are over? Suppose Obama is in the lead: Would he be willing to seat the Michigan and Florida delegates if they tipped the balance toward Clinton? Or suppose Clinton is in the lead. Might she use that advantage to push through credentials decisions that would enable her to lock up the nomination?

This year the race for the nomination could well prove to be close enough for such a scenario to unfold. Caucuses and primaries in the early states have yielded a split decision, and the polls suggest a tight race ahead.

Moreover, Democratic Party rules make it difficult in a close race for one candidate to win the nomination outright at the polls. Superdelegates make up 20 percent of the total, and unlike the GOP, the Democratic Party has no winner-take-all primaries. Indeed, the Democrats’ rules for apportioning delegates within the states also favor an even split of the delegates in a close election. For example, in a congressional district with two delegates, the two leading candidates each get one delegate if the loser reaches some minimum share of the vote.

If neither Obama nor Clinton locks up the nomination in the primaries, there will be a struggle for unpledged superdelegates as well as for delegates pledged to John Edwards. And there may well be a battle over what to do about the Michigan and Florida delegations.

In 1968 and 1972, the Democratic National Convention had ugly floor battles over the seating of contested delegations. Another such battle in Denver could be damaging to the party and its nominee. In both Michigan and Florida, there is also a great deal of voter anger over the national party’s decision to deny them representation. It would be far better for the Democrats’ chances in November to reach a resolution acceptable to all sides.

The battle is complicated by the potential impact on Clinton’s and Obama’s chances. Although the voting in Florida today could hold a surprise, Clinton would likely be the beneficiary if the national party simply rescinded its earlier decision to deny the two states’ representation. Clinton said last week that she favored restoring their delegates.

But such a decision would be prejudicial to Obama. In Michigan, the voting in the Democratic primary was hopelessly compromised because the ballot listed Clinton but not Obama or Edwards. In Florida today, all three are on the ballot, but because the national party has barred them from campaigning in the state, Obama--who is still known less well than Clinton--may be at a disadvantage.

A fair contest for the states’ delegates, therefore, would almost certainly require a new round of voting. Another primary isn’t feasible. But the Democratic Party could organize caucuses in both states--that is, if state party leaders were willing to reconsider their earlier refusal to do so.

Both Clinton and Obama would have to believe that such a step was fair. Clinton would have to acknowledge that the January primaries cannot be a legitimate basis for allocating delegates, and Obama would have to recognize that the two states cannot be justly excluded from the national convention if they are amenable to a fair procedure for delegate selection. If the Michigan and Florida Democratic Parties were now to ask for a chance to run caucuses, it is hard to see how the national party or either Clinton or Obama could legitimately oppose such a request.

Besides a round of caucuses, there are other possible developments in the coming months that might give Michigan and Florida at least some representation in Denver. One option would be to restore the two states’ superdelegates. Another would be to reduce the penalty on the states to the level imposed by the GOP--that is, half their delegates, rather than all of them.

After February 5, we should have a better idea of how close the Democratic race is going to be and whether the delegations from Michigan and Florida could be decisive. If the two states could sway the nomination, the fair way to choose them--and the wisest path to averting a Denver debacle and a tainted nomination--is to authorize caucuses in both states to select their full slate of delegates.

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