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The Role of the Superdelegates: Could They Thwart the Choice of a Majority of Democratic Primary Voters?


Thursday, Feb. 14, 2008

In light of the tight race for the Democratic presidential nomination between Senators Barack Obama and Hillary Clinton, enormous attention is now being directed at the role of the "superdelegates" -- the 796 elected officials and other party notables whose allegiances are not determined by caucus or primary, and who must make up their own minds about whom to support. Collectively, the superdelegates may end up having the power to swing the nomination to one candidate or the other.

In recent days, there has been particular focus on the possibility that Sen. Obama would enter the convention with a lead among pledged delegates (that is, those whose votes have been determined by caucus or primary), and yet Sen. Clinton might nonetheless win the nomination if a significant majority of superdelegates were to go her way.

In this column, I'll consider the frequently-raised - but, I think, inaccurate - analogy between that hypothetical situation and what happened in Bush v. Gore. I will also comment on how superdelegates ought, in my view, to make their decision as to the candidate for whom they will vote.

Another Case, Like Bush v. Gore, Where a Majority's Preference Is Thwarted?

Many commentators have compared that hypothetical scenario - the scenario where Obama leads in delegates, but the superdelegates hand the nomination to Clinton nonetheless - to what happened in Bush v. Gore. They note that a majority of Americans had voted for Al Gore, yet the Supreme Court effectively decided the election in favor of George Bush. And they conclude that it would be a bitter irony indeed if the Democratic Party, still smarting over being robbed of the presidency in Bush v. Gore, would itself -- through the mechanism of the superdelegates -- override the view of a majority of Democratic primary and caucus participants.

Yet the analogy these commentators draw, despite some obvious attractions, is far from perfect, for several reasons. First, Bush might have won the presidency despite losing the national popular vote even if the Supreme Court had never entered the fray; that is a byproduct of our Electoral College system. Some newspapers' post-Bush v. Gore recounts suggest that Bush would have been the winner in Florida, and thus the Electoral College winner had the recount gone forward. And more fundamentally, the Electoral College itself allows the national popular vote to be thwarted.

Thus, the core problem with Bush v. Gore is this: The Supreme Court decided the 2000 election in defiance of sound constitutional principles by stopping Florida election officials from conducting a full and fair count of all the votes, and short-circuiting the constitutional provisions giving Congress - not the Court - the ultimate authority to resolve presidential election disputes.

If the superdelegates intervene to thwart the wishes of the delegates, will they be like the Bush v. Gore Supreme Court? Actually, the analogy is not as close as some have suggested. To begin, the superdelegates have real votes in this matter, just as the delegates do - and as the Court's Justices did not. Moreover, there was a reason for giving them these votes, whereas the Supreme Court had no good reason to intervene: The superdelegate system was designed at least in part to provide additional party control over the nomination process, outside of the primary and caucus system. In other words, while the majority override in Bush v. Gore was, in some sense extra-legal, the same could not really be said of a superdelegate override, which is a possibility intrinsic to the system.

(By comparison, a Electoral College override of the national popular vote winner, which also occurred in the Bush/Gore election, is a possibility intrinsic to the Electoral College system. For that reason, my FindLaw colleague Vikram Amar has recently urged on this site that the states should pass legislation ensuring that the national popular vote winner becomes president. While the system is wrong, it is legal, and thus must be legally changed.)

What Role Should Superdelegates Play, and What Factors Should Govern Their Voting Decision?

But to say that a superdelegate override would not match the abomination of Bush v. Gore begs other questions: What role should superdelegates play? What factors should they use in choosing between the candidates?

It would surely be preferable if the superdelegates became superfluous because one candidate or the other gained a decisive edge among the pledged delegates. But let's assume this does not happen and the superdelegates are forced into a central role. How should they behave?

This issue encompasses at least two separate inquiries: First, when should superdelegates make up their minds? And, second, what factors should they balance in reaching an independent judgment about whom to support?

With respect to timing, it is certainly understandable that both the Clinton and Obama campaigns are trying to rack up as many commitments as they can from superdelegates, as fast as they can do so. Since the media reports obsessively on the current delegate count (including the count of superdelegates, even though their pledges are fully revocable), the campaigns have little choice to engage in this competition. This is especially true of Sen. Clinton, as she has fallen increasingly far behind in the pledged delegate race. Without the superdelegates, she is beginning to look like the clear loser.

As I write, Sen. Clinton certainly has built up a sizeable early lead in superdelegates, as various elected officials jumped on a campaign that they assumed would win. Although she retains a superdelegate lead, more recently, the superdelegates have been breaking more towards Sen. Obama - a decision that no doubt reflects his impressive string of victories.

Why Superdelegates Should Not Commit Themselves Too Early, In Light of the Concept Underlying their Role

These early superdelegate commitments are somewhat problematic, given the very nature of the position. The idea behind the creation of superdelegates was to have a sizeable group of uncommitted delegates, who, in a close race, would weigh in for the candidate likely to be the most effective nominee for the party as a whole. Indeed, the Democratic Party created superdelegates as a potential check against the possibility that caucus and primary voters - who sometimes skew to the left of the party as a whole - might otherwise narrowly select a candidate ill-suited to advance the Party's overall goals (which include not only winning the presidency, but also helping down-ticket candidates) in the fall election.

Given the concept underlying the superdelegate structure, early commitments don't make a lot of sense. It is impossible to judge who will be the most effective national candidate early in the primary/caucus season, much less before the season has begun (when many superdelegates went for Sen. Clinton). The campaign season is long (perhaps too long) for a reason - it provides a test of each viable candidate's political acumen, mettle, staying power and inspirational abilities.

Unfortunately, although we now have a reasonable (if still incomplete) perspective from which to assess these qualities, hundreds of superdelegates had already committed themselves at a time when the evidence was only just beginning to trickle in. Those who did so should realize they have erred, and should not feel bound to honor those premature commitments, for their duty to Democrats as a whole trumps their promise to any particular candidate. (It's notable, too, that the candidates hardly can have relied on those promises, so the superdelegates should not feel too bad about revoking them).

In sum, a later decision is not only preferable to an early one, it is strongly counseled by the superdelegates' role - so much so that superdelegates who did make early commitments should feel no shame at all in reversing themselves, and leaving themselves open to learning more as time progresses.

The Factors on Which Superdelegates Should Focus in Making Their Choice

What should superdelegates focus upon? One answer that is commonly offered is that superdelegates should mirror the views of their constituents - that is, a congressperson from district X in state Y should go for the candidate who won this district (or perhaps the state as a whole).

This strikes me as wrong, however. If superdelegates simply mirror the primary election results, then they serve no independent function, and might as well not exist. Put another way, if superdelegates are simply mirrors, then the Party might as well have simply increased the number of delegates allocated to each primary or caucus, instead of creating a superdelegate structure. Superdelegates only make sense if they exercise a degree of independent judgment.

One can readily imagine a host of factors that superdelegates might consider in coming to such an independent view. Certainly, a candidate's electability should be a powerful consideration. In assessing this factor, a superdelegate might well weigh which candidate has won the most pledged delegates (indeed, this might be a paramount factor). Also important would be the breadth and depth of a candidate's victories and defeats, the ability of a candidate to bring new voters into the party and to win over the independent voters who will ultimately determine the winner in the fall. Other considerations would include a candidate's track record in key battleground states, and the candidate's ability to win key demographics.

A conscientious superdelegate would also evaluate the effect that each candidate would have on other Democrats running for office (the down-ticket effect I mentioned earlier). What kind of coattails is the candidate likely to have, in the states he or she carries - and how close will the candidate come, in the states he or she loses? In addition to winning the presidency, one goal of the superdelegates should be to maximize the Party's chances to keep and build on its legislative majorities.

In sum, just as a legislator or delegate represents voters' interests, the superdelegate should consider himself or herself to represent the interests of the party as a whole.

While the nomination race is very close at the moment, if the superdelegates, even those who have already committed themselves, were to undertake this kind of analysis, a clear winner might well emerge after all. The real risk for Democrats is not that they will engage in their own convention-style version of Bush v. Gore, but that the superdelegates, out of misplaced loyalty, premature decision-making, or guilt about breaking past promises, will foist upon the Party the lesser of the two nominees based on the relevant criteria. With so much at stake, that would be a crime.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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