Lanny Davis, annotated:
Here are two important neutral principles that should guide the Democratic National Committee’s Rules Committee when it meets May 31 to decide whether to seat the Michigan and Florida delegations — and, if so, how to allocate them between Sens. Barack Obama and Hillary Rodham Clinton.
One principle is based in law, the second in pragmatic politics. Both principles result in the same solution: in some rough approximation, honoring the results expressed by almost 600,000 Michigan Democrats and more than 1.7 million Florida Democrats, who turned out in record numbers though they were told their votes didn’t count, were not responsible for the rules violations, and don’t want to be disenfranchised.
Record numbers? Not in Michigan. According to the Michigan Bureau of Elections, the record for participation in a Democratic Presidential Primary came in 1972, when 1,588,073 Michigan Democrats cast ballots. That is nearly one million more ballots than were cast this year. (On the other hand, had Michigan held an “official” primary, and had the voters had behaved approximately as they did in Indiana, Wisconsin, and Ohio, about 2,000,000 voters would have cast ballots, easily breaking the record).
The legal principle supporting that solution is pretty simple. In U.S. contract law, the party breaching a contract usually has the right to “cure” the violation during the term of the contract. But if the other party stands in the way of that cure, the breaching party cannot be further sanctioned — and certainly, as a matter of fairness, the party preventing the cure should not stand to benefit.
If the breach in question is Michigan’s decision to advance the date of its primary beyond what the DNC permitted, it would seem that the parties to that dispute are (i) the Michigan Democratic Party (MDP), and (ii) the DNC. Therefore, if the MDP sought to cure the breach (that is, hold a do-over election), the principle that Davis articulates would suggest that the “breaching party” — a.k.a. the MDP — could not be further sanctioned.
It is unclear, however, what any of this has to do with the Clinton and Obama campaigns. At best it is an argument for seating Michigan’s delegates. It isn’t an argument about how to seat them. (more…)
