Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Sanjay Dureseti
Sanjay Dureseti is a rising sophomore at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.
After Hillary Clinton and Donald Trump clinched the presidential nominations for America’s two major political parties, the country’s electorate and press started focusing on the vitriolic and vainglorious stump speeches that will define the remainder of this election cycle. Despite the victories of Clinton and Trump, the general tone amongst voters with regards to the Republican and Democratic nominees has been one of begrudging acceptance. The party bases, despite their overarching desire for unification, have painted their respective choices as the lesser of two evils, with two-thirds of voters declaring both Trump and Clinton to be untrustworthy and dishonest. 
The existence of such an uninspiring duo, other than galvanizing more extensive support for major alternative entities like the Libertarian and Green parties, begs the question of how the two managed to get chosen in the first place. While both Trump and Clinton won solid portions of the popular vote, their unpopularity suggests that the institutional structures of the nomination system may obscure the true will of the American electorate.
The current system of primaries, caucuses, and conventions is rooted in the efforts of opponents of the Vietnam War and their violent protest of the 1968 Democratic National Convention. Although party conventions had been around since the mid-19th Century, the selection of nominees was largely carried out by small, homogenous groups of political elite, foregoing transparency for the self-perpetuation of power.  Sometimes, the choice was a prominent national figure; other times, a total unknown was selected. Years of behind-the-scenes machinations came to a head in 1968 when Vice President Hubert Humphrey, who had not even participated in the lead-up to the convention, was inexplicably tapped as the Democratic nominee. The mob violence and disunity that followed catalyzed the nationalization of primaries, a system that has been constantly tweaked and revised to compose the system we know today. 
Despite these reforms, however, the current presidential nomination process presents serious challenges to complete democratic legitimacy, such as the inconsistency of primary rules from their de-federalized status. On the Republican side, delegate allocation varies greatly throughout the fifty states. Some states use a proportionate system, where the percentage of the popular vote corresponds directly to the amount of delegates that each candidate can claim. Other states use a winner-take-all system, where the popular vote victor takes all the delegates. Some states use a hybrid of the two, operating with a proportional allocation unless a candidate reaches a winner-take-all threshold.  This system was instituted by the Republican National Committee and is intentionally designed to speed up the process. Without time to build name recognition, grassroots momentum, and a healthy donor base, lesser-known candidates are immediately faced with massive barriers to winning the nomination.
Primary laws on the Democratic side also enforce inequality and block electoral parity. The existence of superdelegates, convention representatives who are free to vote for whichever candidate they please, has rankled many who believe it renders the primary process inconsequential. Superdelegates are not elected officials but simply party members who are elevated to that status by the Democratic leadership. The mechanisms for these selections are far from transparent and were initially created in response to the anti-war radical wave that George McGovern rode to the nomination in 1972. The Democratic elite, determined to avoid such insurgencies, have ensured that their established picks are presented with a safety net, as the Democratic elders usually named superdelegates rarely deviate from the party line.  And, while party leaders claim otherwise, superdelegates, since their inception in 1984, have played a decisive role in nominations, ensuring Vice President Walter Mondale’s victory over challenger Gary Walsh. 
The de-federalization of the nominating process has also pitted states against each other in a competition for influence. The phenomenon of “front-loading” has incentivized states to move their primaries earlier, making the front-runner, established in the “invisible primaries,” a sure bet for the nomination. In addition to streamlining the process from a three-month marathon into a one-month sprint, earlier primary contests have significantly dampened voter turnout in later states. 
While Clinton and Trump won their nominations fairly, the process of their selection raises fundamental questions about the viability of the country’s democratic institutions and has left large blocs of voters disillusioned. And, with a political landscape dominated by stubborn ideology and brinksmanship, the country can’t afford more apathy on the part of its electorate.
 Jonathan Martin and Dalia Sussman, “Republicans Want Their Party to Unify Behind Donald Trump, Poll Shows,” New York Times, May 19, 2016, accessed June 14, 2016, http://www.nytimes.com/2016/05/20/us/politics/donald-trump-hillary-clinton-poll.html.
 Scott Piroth, “Selecting Presidential Nominees: The Evolution of the Current System and Prospects for Reform,” Social Education 64 (2000): 278.
 Geoffrey Skelley, “The Modern History of the Republican Presidential Primary,” Sabato’s Crystal Ball: The University of Virginia Center for Politics, January 21, 2016, accessed June 14, 2016, http://www.centerforpolitics.org/crystalball/articles/the-modern-history-of-the-republican-presidential-primary-1976-2012/
 Emma Roller, “The Not So Super Delegates,” The New York Times, April 12, 2016, accessed June 14, 2016, http://www.nytimes.com/2016/04/12/opinion/campaign-stops/the-not-so-super-delegates.html.
 Ken Rudin, “Superdelegates Primer: What You Need to Know,” National Public Radio, March 31, 2008, accessed June 14, 2016, http://www.npr.org/templates/story/story.php?storyId=89237200. Eric M. Appleman, “Frontloading: The Big Bang Theory of Selection Nominees,” Democracy in Action: George Washington University, 2000, accessed June 14, 2016, https://www.gwu.edu/~action/frontload.html.
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