Joe Biden, Kamala Harris or Someone Else? The Convention Rules Might Decide.

It’s been decades since America last witnessed an actual contested convention, so it’s easy to forget something important as Democrats barrel toward a possible convention fight next month: The most intense — and critical — battles almost always happened before any ballots were cast for the candidates.

The nominally boring convention business that only C-SPAN junkies watch has historically revealed which contenders would ultimately prevail. It was a fight over credentials — which state delegations would be seated — that gave Dwight Eisenhower his victory over Robert Taft in 1952. It was a fight over platform issues — should the party repudiate the John Birch Society?— that demonstrated Barry Goldwater’s conquest in 1964. And it was the defeat of Ronald Reagan’s rules proposal — that candidates had to reveal their choice of a running mate — that previewed his narrow defeat by Gerald Ford in 1976.

“If there’s a contested convention, there’s always a test vote,” says longtime Democratic National Committee member Elaine Kamarck, who literally wrote the book on the primary and convention process. “There’s always a point at which the strength of a candidate is tested before the roll call that presages who the nominee will be.”

Whether or not President Joe Biden drops his bid for reelection amid rising pressure from party leaders, there’s a very good chance that the Democratic convention will be more contested than any in more than a half century. (The 1980 battle between Jimmy Carter and Ted Kennedy doesn’t count — that was settled weeks before the convention began.)

That means that the convention rules, including who can vote on what ballot and how free the delegates are, will play a crucial, even decisive role. It requires a close look at a process riddled with tricky issues: delegates who are “pledged” but not necessarily “bound”; party insiders who cannot vote on the first ballot, except when they perhaps can; delegates who are free to vote their choice except when they can’t.

And all of these factors will lead to different outcomes depending on whether the convention will see an embattled president fighting a serious challenge to his renomination or a convention that must choose a successor to a president who has chosen to stand down. Further putting things up in the air is the early virtual roll call to nominate Biden that the DNC currently has planned, but which is being fiercely resisted by those who do not want a Biden nomination locked up before the convention even begins.

Particularly in an open convention, some early procedural votes could make all the difference. They could pave the way for Vice President Kamala Harris to quickly seize the nomination, for instance, or allow for a broader, more competitive contest. But either way, the rules will matter. (In what follows, I have drawn deeply from the wisdom of Josh Putnam, whose FHQ site is absolutely required reading).

If Biden Is in the Fight

The president would come to the convention with 3,896 “pledged” delegates, chosen in primaries and caucuses where he faced no real opposition, and representing well over 90 percent of the elected delegates. That does not include some 700 automatic “superdelegates” — members of the House and Senate, governors, state party chairs and DNC members. These superdelegates are not permitted to vote on the first ballot unless it’s determined that one candidate has an absolute majority of pledged delegates, which Biden will obviously have.

Well, so what? Even if every superdelegate refused to vote for Biden, those pledged delegates for the president would presumably nominate him overwhelmingly.

Except … those pledged delegates are not actually required to vote for him.

A brief excursion into history: In 1980, Jimmy Carter had a majority of the delegates, but his camp was concerned that Ted Kennedy would persuade a critical mass to defect. So they proposed a rule enabling the Carter campaign to remove and replace any delegate who tried to go back on his pledge. The so-called “bind and yank” rule passed, and any effort to stage a final comeback from the Kennedy campaign was finished.

But four years later, Democrats changed their mind. Recognizing the possibility that some event — an illness, a scandal — might cause a change of heart, Democrats instead adopted Rule 13.j which says: “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” That rule is still in effect. And it gives these elected delegates more than enough running room to drop their support for Biden.

The president’s disastrous debate and subsequent stories about his decline were factors unknown to delegates when they won their slots. Polls show a significant portion of the Democratic electorate want a different nominee. Even Biden himself has said the delegates are free to vote their conscience. (Some state laws require delegates to vote as they pledged, but those laws are unenforceable at the convention and very possibly invalid.) This is why the Biden campaign is reaching out to delegates, to measure just how firm their support is.

And the superdelegates? Because Biden has a majority of the pledged delegates, the superdelegates would have the right to vote on a first ballot. But a significant number of the “pledged” delegates could also opt to follow the preference of party heavyweights like Nancy Pelosi, Chuck Schumer and Hakeem Jeffries and choose to reject Biden. Yes, we’re in deep “what-if” territory here, but if there would be enough opposition to Biden on the part of insiders and pledged delegates, it could turn that first ballot into a real contest. Is this likely? Not if most of the elected delegates stay loyal to the president. Is it a possibility? Given the gob-smacking succession of events that have already occurred, it’s more than an Aaron Sorkin fantasy.

Of course, that also requires someone stepping up to challenge Biden.

Simply saying that the delegates are “free to vote as they choose” ignores another key convention rule: A candidate has to agree to be in contention and must submit a list of 300-600 supporters, with no more than 50 from any one state. So which of the potential challengers — many of whom are looking to a 2028 run — would agree to have their name put in contention and risk the ire of Biden loyalists? Would Harris actually challenge her boss? Would any serious contender?

The most likely strategy for the Anybody-But-Biden contingent might be to persuade enough delegates to abstain, denying Biden a majority and demonstrating to him that he cannot win. To put it mildly, that is a tough road. (See: “You can’t beat somebody with nobody.”)

If Biden Stands Down

Suppose Biden takes the increasingly unsubtle nudge-nudge-wink-wink from Pelosi, Schumer and company and withdraws. At that point, the pledged delegates become free agents. They are under no obligation to follow whatever preferences Biden may express — whether endorsing his vice president or calling for an open convention with a “mini-primary” to decide his replacement on the ticket.

What happens at this point is up to the convention itself, which always has the power to adopt, amend or discard existing rules. And that could be key to what takes place next.

For instance: Without Biden, it’s a lot less likely that any one candidate will have an absolute majority when the elected delegates are polled — which means the 700 superdelegates would not be allowed to vote on the first ballot. But if the delegates want the voice of experience and party leadership heard when the balloting begins, that rule can be changed. That scenario could potentially lead to a quick coalescing around Harris as next in line.

On the other hand, if the “mini-primary” idea gains steam, that might be an effort to allow for a more open field of competitors. The convention can also adopt whatever process it chooses, up to and including ranked-choice voting, so that a nominee can be chosen within a few ballots. The party likely has very little desire to repeat the 103-ballot battle of 1924.

It’s impossible to predict the political consequences of an open convention, but the rules are certain to shape its outcome.

It could lead to the kind of divisiveness and chaos that descended on a previous Chicago convention in 1968; or it could present an electorate that was unhappy with the Biden-Trump sequel with fresh, younger faces and a jolt of excitement in a political process that has turned millions off.

It might even demonstrate that an institution almost 200 years old, one that had seemed to lose all semblance of relevance, might have the flexibility to accommodate a political landscape no one even imagined possible a few short weeks ago.