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After Indiana: Sanders Wins another Purple State, But Remains Lost in a Haze of Bad Strategy and Rigged Delegate Math

Sanders’ fairly narrow victory in another purple state, Indiana, continued the pattern that was established in Nevada and Iowa. Clinton’s lead in delegates is based on a combination of closed primary states and southern red and purple states. Unfortunately neither of these results have much relevance to the winning map for the electoral college. Clinton’s identity politics appeals to the Democratic party faithful who dominate the closed primaries held at public expense for the Party’s 29% of the electorate. Those who see all politics as identity politics remain loyal to a corrupt party which provides in exchange the surface image of empty symbols. You can buy a faux “Woman Card” from Clinton. But you will not get from her a restored democracy in which 99% of women’s votes, or of anyone else’s votes, can achieve policy reforms.

Independents determine general elections. They are the 40% of the electorate who are more interested in recovering democracy from the plutocratic establishment which controls both corrupt parties. Independents favor Sanders. They were allowed to vote in Indiana’s open primary while the Party sheep did as instructed by the Party establishment. The victory Independents gave Sanders’ in Indiana was more modest than, say, in Wisconsin, because Indiana also has southern influences in its Ohio River Valley counties. Only pollsters who have consistently underestimated the impact of Independents in open primary and caucus states were surprised by Sanders’ victory.

Trump First

The Indiana result that dominated the news cycle was not Sanders’ but Donald Trump’s elimination of Senator Cruz. This took Trump and some others by surprise. The nation owes Trump’s voters a debt of gratitude for eliminating the possibility that “Lucifer” Cruz will get anywhere near the oval office. But for Trump he would have been one email scandal indictment away. It is still worrisome that, if Trump should lose to Clinton, a second Clinton presidency could so alienate voters from the corrupt and undemocratic Democratic Party that Cruz dominionism could make a comeback in 2020. Such a Clinton-Cruz sequence is an even scarier prospect than a one-term Trump regime. As one writer said: “Trump is ridiculous, but Cruz is … truly frightening…. and he’ll be back. Take appropriate precautions.”

If, in addition to sidelining “Lyin’ Ted,” Trump can also be justifiably blamed for creating a crisis in, or even destroying, the Republican Party, he can’t be all bad. With the Clinton organization back in full control of the Democratic Party, the alienated plutocrats like the Kochs, already know they have their parachute named Hillary Clinton in hand as they bail out of their old party.   No one can know where the Trump rump of the Gutted Old Party will land up in the absence of adult supervision and plutocratic pay-offs.

Another important favor to the country done by Trump and his supporters, especially the Indiana primary closers, is giving Trump a large enough victory to help drive Cruz out of the race earlier rather than later. Trump may soon begin the campaign he has promised: “We’re going after Hillary Clinton.”

Trump will predictably raise those “personal” issues about the corrupt Clinton organization that Sanders declines to raise. Trump’s campaign against Clinton will provide the superdelegates a foretaste of Clinton’s weakness as a candidate well before the Democratic convention.   It may well also heighten their sensitivity to the issue of integrity as Trump goes about presenting his evidence to back up his charge against “Crooked Hillary Clinton, perhaps the most dishonest person to have ever run for the presidency.” This development can only help Sanders in the remaining primaries from which Clinton will be distracted.

Sanders’ Strategy

In Indiana Sanders again overwhelmingly won voters under 45 (68%). These voters are the source of his success. But true to the pattern caused by his refusal to give blacks a good reason to vote for him, he again won only 26% of the 18% share of the Indiana Democratic primary voters who are black. Sanders has failed to communicate how plutocracy is inherently a civil rights problem. But he has also failed to take the best opportunity to dramatically and decisively demonstrate that blacks, and especially black women, are an indispensable and valued component of his progressive coalition and of its leadership. Sanders unfortunately remains as resolute in this neglect of good strategy as he is in the unwavering content of his campaign speech.

Where it counts, in open primary blue states where independent voters are not excluded from participating in the nation’s presidential election run-off process, Sanders wins or virtually ties primary elections, and more commonly overwhelms Clinton in the caucus states. Sanders has generally held his own in the non-southern purple states like Indiana. Purple state outliers, Colorado, where Sanders won in a landslide (18%), and Ohio, where Clinton did the same (13%), cancel each other out. The states remaining for Sanders to catch up to Clinton comprise a similar mixture of red states (e.g., West Virginia where Sanders is polling ahead), both open and closed election states, and blue states (e.g. Oregon, where Sanders is competitive). They are all outside the South – aside from Kentucky, a border state.

Predictably good outcomes for Sanders in the remaining states and territories will not be sufficient to win, though they will narrow Clinton’s lead in pledged delegates. To win Sanders needs a convention strategy that will include a challenge to the DNC rules.

Without any apparent support from the Sanders campaign activists in New York are taking on the quintessential case of closed state corruption that provides one essential leg of Clinton’s lead. Sanders told the Washington Post that “the convention and the Democratic National Committee can change the rules and can create a scenario that makes it clear that we want open primaries in 50 states in this country.” But Sanders needs to do more than complain about closed primaries, and then say that he “accepts” the rules that he calls “dumb” and “absurd” for allowing them, He needs to recalibrate the focus of his campaign on the reform of undemocratic DNC rules.

A rule change could disadvantage the credentialing of delegates from closed primary states. Sanders needs to prepare his own delegates for a floor fight at the convention to change the rules so as to discount the delegate strength of closed states. The discount would be based on the extent that Independents were excluded from participation in the primary. The rules should factor in poll results from the Independents who were undemocratically denied a vote in what should be an open run-off election process, if the results are to be taken as democratic.

To help demonstrate this proposal, for example, 1.8 million New Yorkers voted in their state’s closed Democratic Primary. Sanders claims that 3 million Independents were excluded. If solely for purposes of discussion we apply the nationwide ratio for Democrats to Independents of 3 to 4, and assume equal turnout rates, an open primary would have included 2.4 million additional New York voters. Rounding up the figure of 70% of Independents that some pollsters claim vote for Sanders to 75%, Sanders would have received very roughly an additional 1.8 million votes, and Clinton the other 600,000.   New York would have thus given Sanders 64% of its vote, and alone reduced Clinton’s national delegate lead by about 100 delegates. Similar calculations could be made for the four subsequent closed primaries which had more delegates than New York, and others, potentially putting Sanders well in the lead for pledged delegates going into the final round of contests.

Closed primaries distort election results and help to nominate candidates who general election voters and the American people do not like. In a vicious cycle, the more the party nominates disagreeable candidates, the more people leave the parties. This year, as the parties are both set to nominate the most unpopular pair of candidates anyone can remember, is the year to break this cycle by contesting the undemocratic party rules.

It is far from clear that Sanders’ campaign is competent to wage such a floor battle over a rule change that would require adjustments to closed primaries delegate totals. This one rule change alone could alter the outcome of the convention by shifting 200 pledged votes or more from Clinton to Sanders, in order to account for the intentional discrimination by duopoly parties against excluded Independent voters. A truly strategic campaign would already have been making its case in court, claiming that closed primaries constitute a denial of equal protection under the 14th Amendment and even a denial of freedom of speech on the theory that voting is a First Amendment right. One should not be required to take loyalty oaths to or associate with a corrupt party as a condition of exercising the right to vote in a run off election. Though there is some adverse precedent on the books, closed primaries likely would not satisfy modern concepts of strict scrutiny for First Amendment violations. There now exists a narrower remedy for “party raidin,g” such as criminal law enforcement assisted by modern data mining. In any event, a high profile lawsuit against the DNC for facilitating the denial of constitutional rights would prepare the public for understanding the convention fight over the same issue, even if it were held non-justiciable.

Instead of taking such action, the campaign expresses interest in diverting its hard-won political capital at the convention into influencing the contents of the Democratic Party Platform. The Platform will have nothing at all to do with winning the nomination, much less the policies that will ultimately be pursued by Democrats if Clinton were to win.

Independents will determine the general election results, not Clinton’s southern red state supporters who represent much of her delegate advantage. This should concern any part of the Democratic establishment which may be more interested in winning the election in November than in the payoffs that superdelegates have received, or expect to receive, from the Clinton organization.   This provides motivation to avoid alienation of Sanders’ Independent supporters who demand democratic reforms. The problem is that even beyond his vacuous platform diversion, Sanders has not made the right demands to win the nomination.

Sanders has repeatedly appealed to the establishment as represented by the superdelegates to shift their support to him. He requests first that, in the states which he has won by landslides, superdelegates should vote for him. This sounds reasonable, but there is no such rule. Sanders’ proposal would modify the current rule that leaves discretion entirely with the superdelegates. But even if he persuaded delegates to implement this rule, that would still leave Sanders hundreds of delegates short just among the superdelegates, even if he did make up the difference among pledged delegates in the remaining run-off contests, which is surely a daunting task. Therefore this plea would seem yet another of Sanders’ resolutely losing strategies.

To get the rest of the way, Sanders appeals to superdelegates to exercise their discretion to pick the strongest candidate against Trump, especially as shown by polling in the battleground states. In addition to these two related pleas to superdelegates, which they would be free to ignore, Sanders should be advocating the application of ordinary conflict of interest recusal rules to the superdelegates that they could not ignore.   Superdelegates, and also the members of the Rules and Bylaws Committee which approves rules changes, should be required first to disclose any promises or other pecuniary interest related to the Clinton organization, and then to recuse themselves from voting for Clinton in cases where any reasonable person would conclude that such entanglements would create a conflict of interest.

This conflict of interest enforcement approach has several benefits. First it is an ethical and moral question that goes to the very heart of the corrupt political system against which voters in both parties are protesting. By advocating such a simple litmus test of integrity in the nomination process, Sanders would more clearly define his campaign so as distinguish himself from Clinton and the corrupt party she controls.

Second, raising this issue would also be of value in representing Sanders’ principle campaign message against the lack of integrity of government. Many have overlooked that Sanders’ democratic socialism clearly prioritizes the need to restore democratic process to a currently corrupt government, first, before any of his popularly-supported “socialist” policy reforms will be possible. Corrupt influence peddling that prevents any such policy reforms is largely attributable to the fact that politicians have freed campaign finance practices from conflict of interest rules. Sanders would win his revolution against the control of government by the billionaire class if he could simply restore the application of traditional conflict of interest recusal law to prohibit influence peddling politicians from exchanging policy for payoffs made under the guise of campaign contributions and expenditures. Advocating the conflict of interest recusal rule in the context of a dramatic, televised, credentials fight at the convention would provide an educational moment on how conflict of interest rules should be changed in all three branches of a corrupt government. Some followers seem to believe that Sanders’ campaign proves they can now directly pursue socialism, for example through a third party, without first recovering democracy. Education is needed.

Third, it is understandable that Clinton’s delegates would resist changing the superdelegate ground rules at the last minute in the manner Sanders suggests in order to make them responsible to the strong preference of their states’ voters, and also to the original function of superdelegates to select the strongest candidate in case the people fail to do so. Such a request, though justifiable, can be dismissed as sour grapes.   A moral principle by its nature will be more difficult to resist. Conflicts of interest are immoral as well as enabling the theft of a nomination.   This is high ground. Asking to change the rules so he wins rather than Clinton, absent such a moral principle, is not.

Fourth, it is quite possible that if the Sanders campaign were competent enough to organize its own pledged delegates behind this issue as the very opening floor contest over credentials, much as Ted Kennedy waged a rules floor fight in the 1980 convention, Sanders might attract enough of the Clinton identity politics crowd to win this issue. Clinton’s delegates are not all committed to Clinton corruption. Some of those who remain ignorant of it or are in denial might be persuaded that rules of integrity that apply in other similar contexts should also apply to the superdelegates. In principle, who can support buying the votes of superdelegates? If the Party resists ordinary rules of integrity in its nomination process, that would be grounds for abandoning the party as too corrupt to support.

If the convention requires recusal of superdelegates who are in the pocket of the Clinton organization, the remaining delegates might be able to win other rules fights, such as the reform suggested above to handicap closed primaries. By winning on this issue of integrity Sanders could flip the superdelegates vote to favor him rather than to overwhelm him as it now does.   There are likely few superdelegates who would still favor Clinton as the nominee against the evidence that Trump can defeat her, other than those who have already taken, or expect, some payoff from the Clinton organization.

If the rule changes are denied for purposes of giving him the nomination in 2016, Sanders still needs to make the applicability of these rules changes to future nominations the litmus test for supporting Clinton, or even for his delegates to remain at a convention in which Clinton would be nominated under corrupt and undemocratic rules. This of course would need to be arranged with the delegates in advance, so the demand for the conflict of interest rule itself needs to start well before the convention. Research would be required into each superdelegate’s ties to the Clinton organization. Then the issue should be negotiated with Clinton in advance, in case she wants to avoid a floor fight and threatened walk out by negotiating an acceptable offer.

Since the campaign has evidenced a lack of strategic competence people need to both get involved in the fight against election irregularities, and urge the campaign to do so. If you are donating to Bernie, you are entitled to send a message that he use the money to contest credentials at the convention, and for changing conflict of interest recusal and closed primary rules instead of diverting energy to the irrelevance of platform debates. I will be sending the link for this article to help@berniesanders.com. In addition to FB-liking this article readers might send the link there as well.

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Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.

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