The Uninstructed Delegate: How Wisconsin’s Presidential Primary System Respects the Power of Voters and Parties

January 16, 2019

By: Colin Neal

In the wake of the historically violent 1968 Democratic National Convention, there was a national surge in favor of placing more of the political power of parties in the hands of the voters rather than the party elites. In the following decades, states have shifted towards a nomination system that ensures that the winner of a state’s primary—in which citizens have the right to vote for the candidate they choose for the nomination—will receive that state’s votes for nomination at the national party. The safeguards in place for maintenance of party power, such as the Democrat’s Superdelegates, ensure that some power remains in the hands of the party elites. However, these safeguards have also come under attack for their fortification of the party favorite early into an election, regardless of the popular will.

Wisconsin has managed a way of maintaining the state’s historically populist undercurrent while protecting some discretion for the national party. In Wisconsin’s Presidential Preference Primary, voters have three distinct choices: vote for a candidate on the ballot, write in a candidate’s name, or vote for an uninstructed delegation to the national party. The uninstructed delegation choice allows voters to authorize discretion to the national convention delegates on behalf of the voters of Wisconsin. In Wisconsin, three delegates are sent from each Congressional district, so, if an uninstructed delegate won in any district, three of the state’s delegates would be free to choose their party’s nominee. In 2016, the uninstructed delegate option came in eighth place in a crowd of 13 options on the Republican side, gathering 2,228 votes, or 0.2% of the total vote. On the more streamlined Democratic ballot, the uninstructed delegate placed last in a field of four options, with only 1,436 votes, or 0.1% of the total vote. While unsuccessful in the 2016 primaries, the uninstructed delegate may have room to grow in the future.

The benefit of the uninstructed delegate is threefold: it allows voters to still have a choice in the nomination process, it allows some control over the nomination process if authorized, and it draws a palatable balance between state law and party rule.

Parties have historically been unwilling to hand over too much control to voters out of fear that the nomination could go to someone seen as nationally unelectable or out of step with majority party values. This was the rationale behind the Democrat’s Superdelegates, as instituted in 1982. Even that safeguard has been attacked as undemocratic, and post-2016 reforms have left parties more powerless than ever in the nomination process. The first major benefit of the uninstructed delegate option allows voters to return the power ceded to them should an election arise where they see fit to assent to party control of this process. If the uninstructed delegate choice were to become more popular than in 2016, voters choosing that option could return short-term control over nomination to the parties while maintaining the reformed democratic primary system for future elections. However, if the voters were to determine that a certain candidate is clearly the best option for them, their district, or their state, they can make that voice heard and bind the party to that decision by means of the currently established primary system.

Secondly, the uninstructed delegate option could serve as a safety valve for national parties in the event of a particularly unusual race. Consider a hypothetical: the Democratic Party has only two candidates who met the ballot deadline for Wisconsin, but neither has particularly created a lead in the polls. By the time the Wisconsin primary arises, the two candidates have both become embroiled in scandal, and a third candidate has entered the fray, albeit too late to be added to the official primary ballot. Rather than barring that candidate from running in the state, or handicapping them by demanding an onerous write-in campaign, the national party can ensure that it can still choose that third candidate at the convention because the voters select uninstructed delegates to represent their state. This manages to protect voter interest, party control, and weave through the state interests in requiring candidates to petition for ballot access. In concession, though the hypothetical demonstrates the safety valve of the uninstructed delegate, it is a far less effective means of control when only one state has such an option. National and State Parties, should they wish to have that emergency means of control, should petition more states to create the uninstructed delegate option.

Lastly, the uninstructed delegate shows respect for state law and the freedom of association of the national parties. The Supreme Court has been uncomfortable when resolving conflicts between state laws and party rules, but because the Wisconsin uninstructed delegate is created by state law then governed by party rules, this conflict is avoided.

In sum, the uninstructed delegate is a novel option on Presidential Primary ballots, and, given the simultaneous party, individual, state, and national interests in the nomination process, this option allows voters and parties to share control over who represents their party in the November election. Though this option has yet to prove effective, greater advertisement, education, and codification of the uninstructed delegate option could prove to be the safeguard that parties which to retain, without usurping the