Should Democrats Eliminate Superdelegates?

By Rick Hasen, Huffington Post. Posted April 8, 2008.

Perhaps it is too early to begin this discussion, with the heat of the Obama-Clinton contest still rising, but Democrats have an important question to consider for the next election: should the norms of equality that we apply to our general elections apply to the Democratic presidential nomination process? I hope that in answering this question we can put aside our feelings about Sens. Clinton and Obama and the 2008 race.

When it comes to the general election for president, within each state (but not across states, thanks to the electoral college), we conduct our elections under rules giving each person a vote, with the same voting power. But the Democratic presidential primary nominating process is not conducted like that: it allows all kinds of deviations from the usual rules, including unequal weighting of votes, lack of a secret ballot in caucuses, and the presence of unelected "superdelegates" who appear to control the balance of power in the choice between Sens. Obama and Clinton in this election.

The fact that superdelegates hold the balance of power opens up the possibility that the superdelegates will vote in a way that is contrary to the popular vote of the people. And that appears to be their purpose. As Senator Webb recently remarked: "If they didn't want the superdelegates to have independent judgment, they wouldn't have created them."

It is this very ability of superdelegates to use judgment and discretion that gives Senator Clinton any chance at all in obtaining the Democratic nomination. She can try to make all kinds of creative arguments, including those based upon the Florida and Michigan primary elections conducted under unusual rules where candidates were told not to campaign and voters were told their votes wouldn't count. Whether or not these arguments will be plausible, especially in the face of an ultimate pledged delegate lead is a question not for us to judge, but for these unelected superdelegates.

If indeed people believe this question should not be in the hands of superdelegates but rather should reflect either pledged delegate totals or the results of the popular vote, then it is time to eliminate superdelegates. And if the thought is that the popular vote should be used, then it is also time to eliminate the caucus. Caucus states have much lower participation because of the cost of giving up time to participate. Primary states' votes would be weighted more heavily. And if one really wants to assure equality of voters, even use of pledged delegates is not the way to go, because pledged delegates are weighed according to DNC formulas by prior Democratic turnout.

So ultimately Democrats need to ask what the primary is about. Is it about reflecting the popular will of Democrats (and others, who may participate in open primaries in some states)? Or is it about constructing a system for choosing a candidate to win in the general election? If it is the latter, in this day and age can that ever be a candidate who does not lead in pledged delegates or the popular vote?

I raise these questions without firm answers, and look forward to reading comments from others on this issue. I should note that I've recently explored the question whether Congress could pass a law requiring the parties to use one person, one vote primaries to choose presidential nominees. I think such a law could well be constitutional. So the question is not whether imposing this system on the parties would be upheld by the courts. It is whether making this change (either by the party itself or through congressional legislation) would be a good thing.

See more stories tagged with: popular vote, election 2008, primary, clinton, obama, superdelegates

Rick Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.

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