A Fair Solution for Fla. and Mich.

Here are two important neutral principles that should guide the Democratic National Committee’s (DNC) Rules Committee when they meet May 31 to decide whether to seat the Michigan and Florida delegations — and, if so, how to allocate them between Sens. Barack Obama (Ill.) and Hillary Rodham Clinton (N.Y.).

One principle is based in law, the second in pragmatic politics. Both result in the same solution: in some rough approximation, honoring the results expressed by the almost 600,000 Michigan Democrats and more than 1.7 million Florida Democrats who turned out in record numbers even though they were told their votes didn’t count, were not responsible for the rules violations, and don’t want to be disenfranchised.

The legal principle supporting that solution is pretty simple. In U.S. contract law, the party breaching the 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.

That is, in fact, what happened in 2008 to Michigan and Florida. They violated the party rules when they scheduled their primaries before Feb. 5. But then in March elected officials and party leaders in both states were willing to “cure” — i.e., to hold new primaries and raise the money privately to pay for them. In Michigan, Gov. Jennifer Granholm and Sen. Carl Levin proposed a “firehouse” primary in June, where voters could “re-vote” at local firehouses or libraries. In Florida, Sen. Bill Nelson and others supported a re-vote by mailed ballots and perhaps also offering the “firehouse” alternative for those voters who preferred to vote in person.

DNC Chairman Howard Dean said at the time that such re-votes were permissible and would bring Michigan and Florida back into compliance. And there was precedent: In 1996, Delaware Democrats held a party caucus earlier than the permissible date, resulting in a rule violation. But state Democrats were allowed to hold another caucus later on and were then found to be back in compliance.

In March and April 2008, Sen. Clinton publicly supported the re-vote proposals of Michigan’s Gov. Granholm and Sen. Levin and Florida’s Sen. Nelson. She repeatedly invited Sen. Obama to join her and do the same. He never did — and the re-votes never occurred.

Now, the Obama campaign would say that they neither objected nor approved; they just raised “concerns.” That is a fact. But here is an unavoidable inference from other undeniable political facts: Had Sen. Obama instructed those supporters in Michigan and Florida who were opposed to the re-votes to support them, and joined with Sen. Clinton in endorsing the re-votes, the new rounds of voting would have occurred. Can anyone seriously argue against that inference? Or that the Obama campaign in March and April, by referring to vague “concerns” for weeks about the re-vote proposals without offering to sit down with Clinton campaign, Florida, and Michigan Democratic officials to work them out, were more intent on “playing out the clock” and killing the chance of any re-votes than finding solutions to permit the re-votes to occur?

Money was certainly not an issue. Sufficient funds — estimated at between $15 million to $20 million for both states — could have been privately raised. New Jersey Gov. Jon Corzine and many other big Democratic donors publicly offered to raise this much. Moreover, does anyone doubt that had Sen. Obama joined Sen. Clinton in supporting these re-votes, there would have been any difficulty in raising this sum just from their joint appeal on their campaign web sites alone? Hardly.

A fair solution

So what is the fairest solution for the Rules Committee, taking into account Michigan’s and Florida’s willingness to re-vote but for the failure of the Obama campaign to sit down and work out details to solve their “concerns”?

It is rather simple. Go back, in effect, to the status quo ante and make some reasonable and fair adjustments.

In Michigan, Sen. Clinton received 55 percent of the vote According to www.thegreenpapers.com, she thus should receive 73 pledged delegates based on that percentage.

What to do about the remaining 40 percent “uncommitteds,” representing 50 delegates, according to greenpapers.com, and 5 percent collectively cast for Sen. Chris Dodd (Conn.) and Rep. Dennis Kucinich (Ohio), who were also on the ballot, representing about seven delegates?

Some of those 40 percent might have been for Sen. Clinton as second choices to candidates other than Sen. Obama, so it would be totally unfair to award all 50 delegates to Sen. Obama.

One little-known fact: Sen. Clinton complied with party rules by allowing her name to remain on the ballot, as did Sen. Dodd and Rep. Kucinich.

Sen. Obama was not forced by party rules to remove his name — he chose to do so. That is a fact few people know.

The Rules Committee has several options. The fairest would be to allocate that 40 percent (plus the 5 percent for Sen. Dodd and Rep. Kucinich), or about 57 pledged delegates, to Sens. Clinton and Obama by the same ratio of their standing to one another in the average of the most recent Michigan statewide polls prior to the Jan. 15 primary. Or, perhaps, one Solomonic compromise, more generous to Sen. Obama than to Sen. Clinton, would be to divide the remaining 45 percent approximately 50-50 between the two of them, 28-27 (giving Sen. Clinton the extra delegate since she led in all the latest statewide polls prior to Jan. 15).

Florida’s compromise solution is even easier. Sen. Clinton won 50 percent, while Sen. Obama 33 percent of the 1.7 million Democratic votes cast. According to www.thegreenpapers.com, that would give Sen. Clinton 105 delegates and Sen. Obama 69 delegates. That leaves 11 elected John Edwards delegates yet to decide, as well as 13 still un-pledged “super” delegates. (Eight “supers” have already decided for Sen. Clinton, five for Sen. Obama.)

Practical politics: Winning the November election

Such solutions for the seating of Michigan and Florida, rooted as they are on neutral and longstanding principles of law and equity, are also required by practical political realities if the Democrats want to win the White House in 2008.

If more than 2.3 million Democrats in Michigan and Florida are told their votes didn’t count even though their party leaders were willing to re-vote, that could anger them, to put it mildly. If they blame Sen. Obama for not supporting the re-vote while still blocking a fair solution by the Rules Committee, essentially permitting their January votes to count, they are likely to be angrier still — if, that is, he is the Democratic Party’s nominee. In a close election, that could mean the difference between the Democratic candidate carrying or losing Michigan and Florida.

Is it worth risking the White House in November by not accepting this fair solution?

I don’t think so — too much, such as the Supreme Court and Roe v. Wade, hangs in the balance.

Lanny J. Davis served as a member of the DNC from Maryland for 12 years (1980-1992) and served on the DNC Executive Committee. He is former special counsel to President Bill Clinton (1996-’98) and a supporter and fundraiser for Sen. Hillary Rodham Clinton. He holds no position in Clinton presidential campaign; the views expressed are entirely his own, and in no way speak for the campaign.