The Massachusetts Republican Party has obtained a legal opinion (posted at redmassgroup) from Attorney Michael T. Morley addressed to GOP chair Kirsten Hughes. Attorney Morley opines that the State Committee cannot change the convention outcome to allow Mark Fisher onto the primary ballot.
Case closed? Not so fast.
Attorney Morley’s letter is captioned “RE: Authority to Modify Decisions of 2014 Republican State Convention” but that isn’t the right question. The question is not what authority the State Committee has to modify the decision of the Convention, but what decision did the Republican State Convention make – did the State Committee improperly count 64 blank ballots toward the total needed for Fisher to get his 15%? Because if the State Committee conducted an improper vote count, then the Convention decided to put Fisher on the ballot and the Mass. GOP might wish to find a way to recognize that fact.
Attorney Morley argues that the “The Convention Rules do not expressly permit the State Party Chair, the Presiding Officer of the Convention, the Executive Committee, or the State Committee itself to modify an act of the Convention, including the outcome of a vote taken at the Convention.” It’s fair to say that Attorney Morley doesn’t find any implicit power to change a vote of the Convention either, but again that isn’t the question.
Here’s the key paragraph:
Rule 11 provides, “The Party chair shall determine the method and order of voting for each vote or election during the Convention.” This Rule reasonably can be read to imply that the Party Chair had power, at the Convention, to determine what does or does not constitute a vote. This Rule does not suggest that, once the vote tallies—based on any interpretations the Party Chair proffered— were approved by the Convention, the Party Chair retained ex post authority to revisit, revise, or modify the outcome.
No no no no no no no no!
Rule 11 cannot reasonably be “read to imply that the Party Chair had power, at the Convention, to determine what does or does not constitute a vote.” Under sec. 45 of Robert’s Rules of Order “the (nomination) voting can be by any of the accepted methods” including two different procedures by ballot, viva voce election, roll call election, or cumulative voting. Rule 11 does not allow the chair to determine what counts as a vote, that had already been done by the State Committee and could only be altered by a vote of the Convention, as I argued in Did Mark Fisher Get His 15%?, GOP Convention Voters: Present and Unaccounted For, Sir! and Present = Blank = Abstain.
Mark Fisher has filed a lawsuit to contest the vote. It looks like this matter will be settled in court.