Trumping the Law: The Dilemma Behind Parties’ Executive Committees Selecting Presidential Electors
November 2, 2016
By: Kristi Breyfogle
The 2016 election in Minnesota gained national attention this year when the state Republican Party almost failed to get its presidential candidate on the ballot. The problem became apparent shortly before the deadline to file paperwork to get candidates on the ballot. Republican leaders realized that due to an oversight, they failed to elect alternative electors for the November election at their state convention. The party’s presidential candidate, therefore, was not on the Minnesota sample ballot. This resulted in a last minute scramble to name ten alternative electors for the campaign. The Republican Executive Committee met in private in August to select the missing alternatives. After the state Republican Party scrambled to meet the deadline, Minnesota’s Democratic-Farmer-Labor Party (DFL) challenged the validity of the ten alternative electors. While the court ultimately decided to dismiss the DFL’s petition, it based its decision on a time and practicality consideration rather than on the merits of the claim. The question remains open on whether a party must choose its electors publicly at its state convention or whether the party’s executive committee may select them at a private meeting.
The DFL and other commentators contended that the Republican Executive Committee improperly selected the alternative electors in a private meeting rather than properly nominating the alternative electors at the Republican State Convention. Under Minnesota Statute § 208.03, “[p]residential electors and alternates for the major political parties of this state shall be nominated by delegate conventions called and held under the supervision of the respective state central committees of the parties of this state.” As defined in Minn. Stat. § 200.02, “‘[c]onvention’ means an organized body of delegates assembled for the purpose of transacting the business of a major political party.” The DFL and the other commentators claim that the executive committee lacked the authority under the statute to pick the alternative electors.
As others have argued, a meeting of the executive committee likely does not constitute an assembly of organized delegates under the language of the law. Minnesota law gives deference to political parties to determine the design of their conventions. As stated in Minn. Stat. § 202A.12, “the final authority over the affairs of each major political party is vested in the party’s state convention to be held at least once every state general election year at the call of the state central committee.” Even under the Minnesota Republican Party’s own constitution, delegates must be “elected at their [respective political bodies’] conventions.” The executive committee, on the other hand, is a small group of party leaders and representatives who were not elected by a political body to serve a delegate function. How electors are “nominated” is not defined in the statute, and it is left to the party to determine how it is done. In this case, the party’s requirements include that “no person shall be nominated a Presidential Elector unless that person has been selected as a Congressional District Elector or Nominee or nominated at large [at the state convention].” Under the state law and the corresponding party rules, it appears that the executive committee did not have the authority to select the alternative electors and the private meeting did not count as a delegate convention.
However, according it the deferential standard of Minnesota’s law, it is up to the party’s central committee to decide when a convention will take place and how it will be run. Under § 208.03, “conventions” is plural. This suggests that parties are not limited to the decisions from one convention. Therefore, party leaders were allowed to hold another delegate convention to fill the vacancies after the May 2016 convention when the mistake became apparent. If the party rules allowed the executive committees to act as emergency delegates and choose alternatives, a deferential court may allow that meeting to count as a valid delegate convention.
In this case, there is some evidence that executive committees did have some emergency power under party rules. According to the party’s constitution, “[i]f any Presidential Elector that has been nominated by the State Convention is unable or unwilling to serve after the state convention, the state executive committee shall nominate a replacement from the geographic body that nominated the original Presidential Elector” (emphasis added). If the party argued that the alternatives were unable to serve (because they were never actually selected), at least under party rules, the executive committee could choose replacements. While this might be a stretch in the current case, the party could theoretically change its constitution for the future to allow for an “emergency convention” in this type of situation with the executive committee serving as “emergency delegates.” Courts, unwilling to face the moral and ethical dilemma of keeping a major party’s candidate off the ballot, would likely accept this as a valid delegate convention and let the committee’s choices stand.
Following the letter of the law, the Minnesota Republican Party likely failed to legally nominate alternative electors for the presidential election. While there is deference in the law to the party’s rules, the combination of the language of the statute and the party’s own constitution makes it unlikely that the alternative electors were properly nominated. Still, parties could likely amend their constitutions to legally allow their executive committees to select electors. However, this close call for Republicans could be enough to remind both parties to select all of their electors at their normal state convention.