Convention Math: What Adds Up to Legitimacy?

"It would be a problem for the party if the verdict would be something different than the public has decided," Speaker Nancy Pelosi piously intoned last week. Well, sure, Madame Speaker - but which public? And how shall we know what it has decided?

There are three paradoxes that lie at the crux of the nominating process, and which together have produced most of the quirks that have resulted in so much hand-wringing (and more than a few others that have thus far passed unnoticed). The first of these is that it is a partisan process - by its very definition, restricted to a subset of the whole - that aspires to democratic legitimacy. The second is that it aims to produce a single national result, but by means of separate processes in individual states. And the third is our nation's republican creed of representative democracy, which grants primacy to the public interest yet relies upon an elite few to discern it.

Let's consider how these three paradoxes come to bear on the arguments being advanced by the two campaigns in their quest to convince delegates that they, and they alone, have achieved a mandate for the nomination.

The Popular Vote:

The argument here is simple and intuitive. In most elections, the candidate who garners the greatest number of votes, wins. That seems eminently fair. Democrats groused about the legitimacy of President Bush's mandate in 2000, when he failed to carry the popular vote, further embedding the argument in the Democratic pysche. So why not simply tally up all the votes, and then pressue the delegates to follow the people's clearly expressed will?

The Problems

Actually, it's not that simple. Consider the first of our paradoxes, the partisan nature of the process. Are we interested in the will of all voters who will be eligible to cast ballots in November? Clearly not. The nominating process is a partisan affair, and so, contra Speaker Pelosi, "the public" is not making this decision. Advocates of the popular vote are actually championing a curious beast called "the Democratic primary electorate," which is neither fish nor fowl. Consider this: the primary system enfranchises quite a few voters who will not be eligible to vote in November, including voters in American territories and commonwealths such as American Samoa and Puerto Rico. It allows Democrats living abroad to choose between voting with Democrats Abroad and voting via absentee ballot in their state elections. But at the same time, a huge portion of the overall electorate is excluded. Voters can only cast ballots if they are registered as Democrats. Or if they switch their registration to become Democrats. Or if they are unaffiliated, but not if they are enrolled in another party. Or as long as they don't vote in the other party's elections. It's a mess.

That brings us to the second paradox, federalism. The rules, it turns out, vary state by state. We are left to tally incommensurate sums. The total number of Democratic votes in one state, the total number of all votes in the other. Even states that share formal rules may introduce other variables. Are they voting on the same day? Is there a Republican primary that day, or nothing else to siphon off independents? Is the contest held in January or May, and have voters' preferences changed in the interim? And that's before we broach the subject of caucuses. Several states produced no reliable count of the popular vote. Are they to be disenfranchised? The rules of the caucuses themselves vary widely, some resembling elections and others town meetings, but they're generally more restrictive than those used in primary elections. So, conversely, would counting the individual votes cast at caucuses serve to corrupt the tally of the popular vote?

The popular vote turns out to be a chimera, a strange creature composed of diverse tallies from disparate processes, and missing several vital parts. So where does that leave us?

The Pledged Delegates:

If the popular vote had the advantage of intuitive legitimacy, the pledged delegate tally has the virtue of internal consistency. The voters award the delegates, and the delegates award the nomination. It seems simple enough, for all that no one seems to understand the messy mechanics. If delegates are the currency of the convention, then the pledged delegates, the ones we the public elected (er, sort of) ought to make the decision. Right?

The Problems:

I'm sure you'll be shocked to learn it's not that straightforward (and, of course, since pledged delegates are selected through the processes detailed above, we start with many of the same flaws). Let's begin this time with the third paradox, representative democracy. It's so familiar that it may be difficult to step back, and see what a strange process it really is. Since the Warren Court, Americans have understood our Constitution to include a guarantee of "One man, one vote." In a series of decisions beginning in 1964 and ending in 1989, the Supreme Court declared that at every level of government (save the United States Senate) electoral districts, as nearly as practicable, must be drawn to be roughly equal in population, so that every vote is worth about as much as any other. The primaries, as extra-constitutional processes, are entirely exempt from this requirement. As a practical matter, that means that some votes are worth more than others. Much more. State parties are given the choice of four formulas for allocating a block of their pledged delegates among their congressional districts. Only two of the four give any weight at all to population, but all four place great weight on the number of votes cast for Democratic candidates in recent elections. So in Illinois,, for example, voters in some districts elect as many as 8 pledged delegates, and voters in others as few as 4. And, as if the Democratic Party can't quite decide which way is fairest, we apportion the pledged delegates based on the results as calculated at two separate levels. A good chunk of them are split among the candidates based on statewide tallies, the bulk based on the district vote. There are good arguments in favor of either approach, but I have yet to hear a compelling defense of splitting the difference.

That much has been widely reported. Less appreciated is the result of our second paradox, federalism. Not only, it turns out, are the pledged delegates not apportioned among the districts by population, neither are they apportioned by population among the states. This gets complicated; read the Call to Convention if you care about the gory details. Suffice it to say, it's a weird amalgam of each state's electoral vote, the number of votes for the Democrats in the last three presidential elections, and how late in the calendar year the contest is held. That's right - move your state's primary after May 1, and you could score 30% more base delegates. It's a fantastic system. So the next time you hear someone proclaim that the votes of all the states matter equally, snicker. The truth is, the Democratic Call to Convention resembles nothing so much as our tax code - an accretion of complicated provisions designed to achieve a diverse range of policy objectives, that surpasseth all understanding.

And that brings us to the paradox of partisanship. In this case, it's a reminder that even the Democratic Party is itself a hodgepodge of different groups, each with its own agenda. Once again, we find the familiar tension between the particular and the general. So far, we've only discussed how the pledged delegates are allocated among the various presidential contenders. But there's another stage to this process: the choice of the delegates themselves. And given that, in most cases, there's nothing to bind them to follow their pledge once they arrive on the convention floor, it's a non-trivial matter. A good chunk of the pledged delegate slots are reserved for elected officials and party leaders. Others are drawn from various minority groups: Blacks, Asians, Hispanics, American Indians. If insufficient numbers of those four groups are elected as pledged delegates by voters, the state parties are required to override the will of the electorate, and hand them statewide slots on a quota basis. (Outreach is also required to the LGBT community and to the disabled, although they don't qualify for quotas). Perhaps most significantly, delegations are scrupulously divided between men and women, right down to the district level. And who chooses them? There are almost as many answers as there are delegations. In some states, like New York, ordinary voters choose some of them in primaries; in Wisconsin, a primary state, they're mostly selected at caucuses; and almost everywhere, state conventions play a role. This system may serve the interests of the party - it may even serve the interests of social justice - yet it bears but a tangential relationship to democracy, as we generally understand the term. So much, then, for pledged delegates as a transparent reflection of the public will.

The Superdelegates:

Automatic delegates to Howard Wolfson, unpledged delegates in the quaint argot of the DNC, superdelegates to the rest of us - these men and women have attained an almost mythic status in the past few weeks. But don't villify them. Howard Dean hastens to remind us that all of them have been elected by some group of voters (or by some group that was elected by a group of voters, or...nevermind.) At any rate, this marvelous group of men and women will "exercise their best judgment in the interests of the nation and of the Democratic Party." Problem solved, right?

The Problems:

By now, you probably don't even need me to point out the first issue; the DNC chair has nicely encapsulated it for us. Are these folks pursuing the interests of the nation or of the Democratic Party? Ladies and gentleman, the paradox of partisanship.

Federalism, too, plays a role. The DNC includes the chair and vice-chair of every state party, so the eighth of the superdelegate slots tied most directly to the state parties is about as representative as the United States Senate. (Which reminds me, Senators are themselves superdelegates.) Then, the DNC awards a bonus equal to 1/4 the number of superdelegates in a state, a formula that rewards the states with the least and the most superdelegates, at the expense of those in the middle.

But it's the third paradox, that of representative democracy, which the superdelegates most embody. The problem is very simple: precisely whose interests do these delegates represent? DNC members hold their seats because they give the party lots of money. Or because they represent the interests of a subset of party leaders or members. Or because they were elected in state primaries or caucuses or conventions. Or because they're policy gurus or political operatives. The list goes on. The elected officials, when you stop to think about it, aren't in a much clearer position. As a Congressman, James Clyburn represents the people of his district - not just those who can vote, and not just those who voted for him. But we're talking about his position as a superdelegate, which he holds by virtue of his elective office, which isn't quite the same thing as an extension of it. He's made it clear he doesn't feel bound by the decision of voters in his district.

No one embodies the trouble with wearing multiple hats better than Harold Ickes. In 1980, he negotiated the removal of superdelegates from the nominating process on behalf of Jesse Jackson, decrying them as unfair, and enshrined proportional representation as the sole method of selecting delegates. Last year, as a member of the DNC, he voted to approve the rules for this year's process. And he voted to strip Florida and Michigan of every last one of their delegates, because "those were the rules, and we thought we had an obligation to enforce them." But Ickes is also one of Hillary Clinton's senior advisers, and has spent the week on the phone with the media, arguing for the legitimacy of superdelegates and the need to seat MI and FL. So when the convention rolls around, will Ickes vote as a DNC member, casting his superdelegate vote against the seating of the delegations? Or as a Clinton adviser, voting to advance her interests?

There are even competing accounts of what including superdelegates was intended to accomplish. Depending on which version of the story you believe, their inclusion in the process was intended to keep party leaders engaged in the campaign and its outcome; to ensure that the DNC would vote for a new convention plan by throwing them the sop of automatic seats; to dilute the influence of activists and younger voters and heighten the sway of institutional leaders; or some combination of these. But does it matter? Like the Electoral College, they are an institution we are happiest honoring for irrelevance.

Summing Up:

I don't have any clear answers. Really, I wish I did. It'd be nice to come to a neat (if facile) conclusion, endorsing the popular vote, pledged delegates, or superdelegates as the ultimate and proper measure of the legitimacy of a candidate's claims. But there's been a lot of overheated rhetoric of late, a lot of false piety and righteous wrath, a lot of self-serving hypocrisy. I hope that, if you've made it through this excessively long screed, you'll take away a sense of complexity and irony, and greet such claims with the skepticism they deserve.

At the end of the day, only two outcomes are possible. Either the party (and the convention) will coalesce around a single candidate, or it will divide bitterly on the issue before conferring a narrow victory. No matter the weakness of the underlying logic, the former outcome will seem legitimate. No matter the persuasiveness of the claim, the latter will not. There is no single, fair measure of victory in the Democratic contest other than the one that matters - near-universal assent. It's tautological, of course, but there it is. That, I think, ought to give both campaigns pause, and remind the delegates to the convention that their ultimate purpose must be to forge a party united behind its nominee.

If you've enjoyed this, please share it with other readers by clicking the 'recommend this' link. You can find more analysis on my blog. As always, I welcome comments and corrections. Thanks to all who have contributed to the remarkably civil conversations that have ensued - and to Josh Marshall, for his commitment to continuously pushing the envelope of the possible on this site.