Why the GOP may have a delegate, rules problem

Wisconsin voters went to the GOP primary polls Tuesday thinking they were voting in a state whose delegates will be "bound" to a particular candidate going into the party's convention this summer. But a divide is emerging within the Republican National Committee over the question of whether any of its delegates are really bound to candidates, or can they vote their own preferences at the convention in late July in Cleveland.

Having more unbound delegates would be a huge factor for those within the GOP trying to halt Donald Trump from getting the party's nomination.

Longtime RNC rules committee member Curly Haugland claims all of the 2,472 GOP delegates are unbound, and can vote for whomever they want, citing various RNC rules. But the RNC has countered back saying it's not true. When asked about the rules surrounding the delegates and if they are unbound, RNC spokesman Lindsay Walters told CNBC they are not: "Delegates are bound according to the rules written by the state party."

But through research conducted by CNBC, RNC rules or not, a political party has power over the states and could override their binding rules, according to two Supreme Court rulings: Cousins v. Wigoda in 1975 and Democratic Party v. Wisconsin ex rel. La Follette, 1981.

"The RNC probably can exercise that power to bind or unbind," said Gregory Magarian, professor of law at Washington University in St. Louis. "But what matters here is not the law but politics. Reaction from the voters, delegates, party regulars saying if the RNC stepped in it would be 'unfair and improper.' This is more about structural politics. As a matter of law the RNC could step in and do whatever it wants to do. But if they stepped in it would be seen as a power grab."

In most election years, rulemaking is likely perfunctory, but because of the contentious, divisive GOP race this time around, those rules and delegate counts will be under much higher scrutiny.

The RNC is ignoring its own rules, Haugland claims, because it is in love with the money and power the primary/caucus system generates, "We are seeing this battle for the delegates because the RNC is in the primary punch bowl," said Haugland, "The free will of the delegates goes back to Garfield in 1880. The language of the law has essentially never been changed. There are two RNC convention rules that prohibit binding."

The rules of the Republican Party are adopted the same way every convention. The RNC breaks them down into two parts: the first part is how the RNC runs the organization before and after the convention and the second set of rules focuses on matters just at the convention itself.

For example, in 2012, 42 rules were adopted and they were divided into three sections. The first two sections (rules 1-25) were about how the RNC would operate after the convention. The third section (rules 26-42) were the rules that solely dealt with the convention and are called the "standing rules" for the convention. These rules are only in effect for the five days the convention is running. After the convention, those rules are no longer valid.

It's important to point out this nuance and distinction between these sections because it validates Haugland's case that all delegates are free agents at the convention. Rules 26-42 from the 2012 convention will be the set of rules the 2016 convention rules committee will look at to pass, modify or add to.

The first of the two RNC convention rules Haugland is citing is what's called the "unit rule" (Rule 38), which guarantees the delegates are unbound and vote their conscience. The second rule is 37B: Delegate votes are counted individually and their votes are not lumped together as one.

Those who disagree with Haugland and say delegates are bound point to RNC Rule 16(a) which says state primaries and caucuses must be "used to allocate and bind the state's delegation to the national convention in either a proportional or winner-take-all manner." But while this rule does exist, according to the way the RNC breaks down its rules and runs the convention, "This means Rule 16 is not in play because it is not in the numerical rule block," said Haugland.

Examples of how RNC members use the rules and Supreme Court decisions to favor a particular candidate can be found in the transcripts of the 1976, 1980 and 2012 GOP conventions, according to official RNC convention transcripts obtained exclusively by CNBC.

In 1976, the rules committee bound delegates by citing the Cousins v. Wigoda case. Then GOP convention general counsel Bill Cramer said to the rules committee: "I am saying that Cousins v. Wigoda in effect said that the party can do as it sees fit with regard to delegate selection matters, even though it is totally contrary to State Law."

In 1980, the rules committee cited Cousins v. Wigoda as the precedent to unbound the delegates. "The Supreme Court has spoken to this. We don't like them to speak to a lot of things, especially the party issues. But whether they did speak to it, they state that party rules are supreme over state law," said then convention rules committee member Paula Hawkins.

Gary Emineth, former chairman of the North Dakota Republican Party and an unbound delegate, said the RNC has a long history of manipulating and ignoring rules. "I believe this has been at the peril of the party," he said. "The party survives long after campaigns come and go. It's unfortunate the party allows itself to be used and manipulated with the undue influence of individual campaigns for president."

The most recent example of the convention rules committee's power is Rule 40 that was introduced by Mitt Romney supporter Ben Ginsberg in 2012. Rule 40 changed the threshold of the majority of delegates a candidate needed to win in order to be eligible for nomination. The rule upped the amount of states from a plurality of five states to a majority of eight.

This rule helped secure the nomination for Romney to keep Ron Paul's supporters from placing his name up for nomination because he did not have eight states.

In the rules committee transcript, Haugland who was a member of the committee, objected to the rule. Then rules committee chairman, Gov. John Sununu, responded that it did not violate the delegates' free will. Later in the rules debate process, the transcript showed Haugland again objecting, saying it was a conflict and the response in the room from the fellow delegates was recorded down as laughter.

Now four years later, coincidentally, his son, U.S. John Sununu, who is national co-chair for Ohio Gov. John Kasich, would need to have the 2016 rules committee change Rule 40 so his candidate could even be considered a nominee.

The elder Sununu told CNBC: "Each convention write its own rules. Tweaking Rule 40 will be part of that process. But remember, you do not have to be formally nominated under the requirements of Rule 40 to receive delegate votes. Last time Ron Paul did not qualify to be nominated under Rule 40, but he received his delegate votes (around 200) when the balloting took place."

"The RNC staff is keeping quiet about these rules because they're looking to control the delegates. There is no question they have deliberately been empowering the so-called importance of the primaries at the expense of delegates at the convention," said Haugland. "They are actively seeking to transfer the right to choose the nominee from the delegates to the convention to the voters in the primaries."

UPDATED: This story was updated to include comments from Gov. John Sununu.

CORRECTION: The RNC rules committee chairman in 2012 was Gov. John Sununu.