This article first appeared on the Dorf on Law site.
As the betting now stands, informed observers think the most likely outcome of the Republican Party primaries is that Donald Trump will go to the convention with a majority of delegates and become the nominee.
But there remains a serious possibility that no one will have a majority. Some people are now arguing that in such a scenario, the candidate with the most delegates (presumably Trump but possibly Cruz), should get the nomination based on small-d democratic principles.
But for that to happen, the non-Trump (or non-Cruz) delegates would need to agree.
Accordingly, I set aside the possibility of the nomination going to Trump (or Cruz) simply on the ground that he has a plurality, and ask what a negotiated resolution looks like. Suppose, just for illustrative purposes, that the candidates arrive at the convention with the delegates split as follows:
Trump: 45 percent
Cruz: 30 percent
Rubio: 19 percent
Kasich: 6 percent
The exact numbers aren't important, but the following is: Trump could get to a majority by combining with any of his three rivals, whereas all of the other three candidates would need to combine together to block Trump.
The first ballot would be indecisive. Then the bargaining would begin. After a brutal campaign, it's hard to imagine any of the other remaining candidates throwing in with Trump, but they have all pledged to support the nominee, and so you never know.
Would Kasich release his delegates to Trump in exchange for being his running mate? Presumably only if he doesn't have a better offer from Cruz and Rubio.
It's easy to see either Cruz or Rubio offering Kasich the VP slot, but the problem each of them is what to do with the odd man out. The best deal for the GOP would go like this: Cruz and Kasich release their delegates to Rubio; Kasich becomes Rubio's running mate; and Cruz accepts an IOU in which Rubio promises to nominate Cruz to the Supreme Court.
But I doubt that Cruz would take that deal, especially if, as in my hypothetical scenario (and in current reality), Cruz has substantially more delegates than Rubio has. Cruz would then say (with some justification) that he should be at the top of the ticket.
What does Rubio get? Maybe he settles for being Cruz's running mate, though I doubt it. Even if Rubio does settle, however, what's then left to give Kasich? If he would actually prefer something like secretary of the Treasury to VP, then a deal is possible, but if not, then Kasich might take Trump's better offer of the vice presidency.
Or maybe not. Maybe Kasich thinks that a Cruz victory would be more likely than a Trump victory, and so, even if ideally he would prefer VP to Treasury (or something else), he might take the promise of a somewhat less desirable position for a greater chance of actually getting it come January 2017.
Nobody knows how any of this will play out, but my main point is that it should not be assumed that denying Trump a first-ballot nomination and rejecting a give-it-to-the-guy-with-the-plurality resolution necessarily means denying Trump the nomination.
Because reaching a deal among all the non-Trump candidates would be more complicated than reaching a deal between Trump and one other candidate, Trump could still emerge as the nominee, even if he only has a plurality of delegates going into the convention.
Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org.
