Right
now the only way Joe Biden will not be the Democratic Party nominee for
president will be if he makes the decision himself to leave the race and free
up the delegates to vote their conscience. The reason is a party rule. A rule
decided by party leaders and attendees, requiring delegates to cast their vote
on the first ballot for the person they are pledged to support.
Assuming this to be the case, Biden
would get the nomination despite the fact that more than 60% of Democrats say
he should step aside from the race. This
is at the same time when increasingly many party leaders are suggesting he do
the same. But consider a different option. What if pledged delegates simply
refuse to vote for Biden claiming they
were misled. What would happen?
The core of the fight between Biden
and perhaps the rank and file Democrats is a question about who the political
party is. Legally the courts have been
confused over this question. Is the party its elected leaders or nominees such
as Joe Biden here? Is it the leadership? Is it the primary voters? Is it those
who identify with the party right now?
It seems to be the first two are viewing
themselves as the party into a conflict with the latter two, with them increasingly
saying Biden should not be the nominee.
But consider a different way of
thinking about the party and thinking about the choices that voters in the
primaries or caucuses made and the delegates who were selected. What if we
think of the party not as the leadership but as the broader membership? Should
they not have a say in the direction of their party, especially based upon
information that is more recent about Biden and the state of presidential race.
Recently I had a conversation with a
Biden delegates to the national convention and with primary voters.
I asked them what they thought about Biden's debate performance, his interview
with George Stephanopoulos, and what they're seeing in terms of Biden now. They
said had they known back then when they pledged as delegates or voted for him what
Biden's mental and physical conditions or acuity were they might have made
different choices. Moreover, they argued that things appear to have changed in
the several months since the Minnesota primary and they should now be free now
to cast a ballot based not upon being bound in pledged to vote for Biden according
to the rules, but based upon what they know now and whom they believe would be
the best candidate to leave their party. They insisted that they were the party
and neither Biden, nor the leadership.
These comments were interesting and
that they suggested that these delegates and voters wanted to make their
decisions based upon information at hand now.
What has become clear is not simply that Biden's mental acuity has
declined, but that stories indicate there were efforts to cover this up and to
protect Biden and conceal his condition from the public.
His real health status, borrowing from the field of
law, is a material fact that a voter or delegate would have wanted to know. One could argue that when voters cast their
ballots across the country for Biden, or delegates pledged for him, they did so
under false pretenses. It was not just that they didn't know information about
his health but they were actually misinformed or misled.
In law this is the concepts both
fraud and detrimental reliance. We act or make decisions based upon information
that we are given. Detrimental reliance
can be the basis of forming contracts in the law.
But
the concept of detrimental reliance also addresses the question of honesty.
What if individuals are lied to in order
to induce them to enter into a contract.
Courts will invalidate such contracts because of fraud.
Think of a decision of a voter to
cast a ballot as a form of a contract. Or conversely, think of the same when it
comes to a delegate. They voted or pledged for a candidate based upon
information at hand. But what if they were lied to? What if fraud were
committed? Should they nonetheless be still bound by that candidate or by their pledge? There should there be grounds to argue that
their pledge or vote was made under false pretenses and the delegates should
not be bound to their pledge according to party rules.
What if then, the delegates simply
chose not to support Biden. Is there a moral and legal argument to support
them? Clearly Yes.
If they were to choose not to
support him what would happen next? Would the courts intervene and forced the
delegates to adhere to the party rules? Unlikely. The Supreme Court has said
that internal party matters are protected by the First Amendment and that
generally, the court should not interfere in what happens. Were the delegates
to the DNC simply to say they are no longer going to support Biden because of
either change circumstances that makes supporting him no longer seem tenable or
because they pledged for him under false pretenses, it does not appear that
anything would prevent them from doing that.
They delegate should be considered
the party and should be free to do what they think they should be done in the best
interest of the party and in furtherance of putting forward a candidate who
they best believe can compete in November.
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