Comment: How Trump could lose primaries but win nomination

By Jonathan Bernstein / Bloomberg Opinion

Here’s another headache for Republicans who don’t want to see Donald Trump as their presidential nominee in 2024: There’s a mechanism that could allow him to get the party’s nomination even if he’s defeated in its primaries and caucuses.

It has to do with the decentralized way that Republicans decide their nomination; which is different from the strict procedures that Democrats have mandated for state parties since the 1970s. Republicans do have some national rules affecting the calendar and delegate selection, but in many ways the states are free to do what they want. (Democrats must follow strict rules about proportional representation to allocate delegates, but state Republican are mostly free to choose whether to use a proportional, winner-take-all, or some other system.)

The issue is the difference between delegate allocation and delegate selection. Allocation is about which candidate the delegates to the convention are bound to, or supposed to vote for. Selection is about which people are chosen as delegates.

On the Democratic side, the two are tightly connected. Candidates have “slates” of delegates; in effect, they choose their own delegates. For Republicans, allocation and selection are often separate procedures. Primaries or caucuses determine how many delegates a candidate will get at the convention. But in many states the delegates themselves are chosen separately, in procedures that generally allow party insiders to dominate.

There is no definitive count of how many delegates are selected this way, and it could still change as states finalize their rules for 2024. But rules maven Josh Putnam tells me that in the majority of cases — perhaps the “vast majority” — delegate selection is separate from delegate allocation.

In 2016, when party insiders almost universally opposed Trump, quite a few delegates who were bound to Trump at the convention actually supported someone else. (It was entirely plausible that the relatively slim majority Trump obtained through the primaries and caucuses might not have held up at the convention. But Trump-skeptical delegates also tended to be loyal to party leaders. When Republican Party Chair Reince Priebus, House Speaker Paul Ryan and others decided not to challenge Trump, the delegates went along. Priebus and others probably feared the chaos that might have broken out, and the danger of Trump turning on the party if he lost a nomination he seemed to have already won. They may have also believed that it would have been a bad look for the party to overturn a process in which the voters had spoken.)

In the end, they voted as they were supposed to and Trump became the nominee.

Now a lot of party insiders are strong Trump supporters, and it’s likely that a lot of those who are selected as delegates will be loyal to Trump, regardless of who they are pledged to. The danger is clear: Even though they may arrive at the convention pledged to someone else, those delegates could support Trump once they’re at the convention.

Here’s how it could play out. The convention is the ultimate governing body of the party, and it is free to change the rules if a majority of the delegates want to. If someone other than Trump has enough pledged delegates to become the nominee, but a majority of delegates at the convention are loyal to Trump, the convention’s rules committee could draft a proposal to “unbind” the delegates. They could then vote their personal preference, rather than for the candidate they were allocated to. I would also expect the credentials committee to be busy, with challenges to unseat some delegates based on supposedly fraudulent results; a procedure that, if successful, could widen Trump’s delegate margin.

All of this would be perfectly within bounds. If Trump had enough votes to change the rules at the convention, there would be nothing anyone could do to stop him.

Of course, it’s possible that Trump will win enough primaries and caucuses that he won’t need any convention shenanigans; or that another candidate will do so well that they will be the consensus nominee. It’s also worth noting that making all this happen would require a very skilled campaign operation, which has not been Trump’s strong suit (though it appears he has a much more professional campaign than he did in 2016).

But if Trump winds up with, say, 30 percent or 40 percent of the allocated delegates, with someone else just over 50 percent? Then who the delegates are, as opposed to who they’re pledged to, will be relevant. And if they’re Trump people, they’re going to act like Trump people.

Any Republicans who don’t want Trump to be their nominee should be working now to change the party’s rules and prevent him from subverting the delegate selection process. Because if we know anything about Trump, it’s that the prospect of winning ugly by overturning the will of the voters doesn’t seem to faze him. Trump was willing to ignore the Constitution on Jan. 6, 2021; in July 2024, if it comes to that, he’ll certainly be willing to exploit any procedural wiggle room at the Republican convention.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.