Pledge Hedge

My quest to discover whether I could break my pledge to be an Obama delegate.

My name is on the Pennsylvania primary ballot as a delegate candidate pledged to Barack Obama. I will be competing for one of six delegate spots allotted to my congressional division, the 6th District. It’s a gerrymandered swing district composed of wealthy Philly suburbs, Amish farm country, and the diverse cities of Norristown, Pottstown, and Reading. The vote at the top of the ticket on April 22 will determine how many delegates Clinton and Obama win here. The vote for 11 individual pledged delegates will then determine who fills the spots won by the candidates. I’m hoping Obama wins a slew of delegates, and that I’ll get enough votes to be one of them. Voting in Denver for Barack Obama as my party’s nominee for president would be the peak of my humble career as a grassroots activist and Democratic committeewoman —an effort that consists mostly of attending meetings in fire-station social halls, planting yard signs, manning a rural poll with my friend Rita, and pestering my neighbors with GOTV phone calls during dinner.

But that’s where this whole pledged-delegate thing gets sticky. Because over the past weeks, as the delegate math has swung against Clinton, her campaign has floated the notion that pledged delegates won by Obama might consider switching their votes. “As you know so well, Mark,” Clinton said in an interview with Time’s Mark Halperin, “every delegate with very few exceptions is free to make up his or her mind however they choose. We talk a lot about so-called pledged delegates, but every delegate is expected to exercise independent judgment.” Which got me wondering whether the various formal pledges I’d signed in my quest to be an Obama delegate really mattered: If elected, could I vote for Clinton, anyway? Was I legally bound? Morally obligated? Am I truly in a position to break the one promise I will ever make to voters?

The Democratic National Committee’s “Delegate Selection Rules” and the “Delegate Selection Plan” of the Pennsylvania Democratic Party seem to leave room for pledged delegates to change their minds: “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” So pledged delegates are not bound to the sentiments expressed by the voters at the time they cast their votes. Presumably, if the delegate, in good conscience, believes the sentiments of those who elected her have changed, she might, in good conscience, vote for the people’s current choice. (No one can force the delegate to adjust to changing popular opinion, however. Both the DNC and the Pennsylvania rules state that “[n]o Delegate at any level of the delegate selection process shall be mandated by law or party Rules to vote contrary to that person’s presidential choice as expressed at the time the delegate is elected.”)

I can see how the Clinton campaign could think that under these rules, pledged delegates might be flipped. Then again, to run as a pledged delegate in Pennsylvania, I not only had to file a pledge form with the Democratic Party here, I also had to sign and date the following delegate’s statement on about 50 copies of my nominating petitions:

I hereby declare to the voters of my political party in the District set forth above, that if elected, and in attendance as a Delegate or Alternate Delegate to the National Convention of my Party, I shall with all fidelity, to the best judgment and ability, in all matters coming before the Convention, support the Candidate for President of the United States whose name is set forth above, and shall use all honorable means within my power to aid in securing the nomination for such Candidate for President of the United States.

The name set forth above was not Hillary Clinton. And as I knocked on neighbors’ doors last January, trying to keep the ink in my pens from freezing, shivering on icy front steps as skeptical citizens scrutinized my petitions, I took that pledge very seriously. But is it binding?

I called Jonathan Marks, chief of the Bureau of Elections and Precinct Data at the Pennsylvania Department of State. Back in January, he’d ably advised us candidates through the petition process. Marks explained to me this week that the delegate selection process is covered by a mix of Pennsylvania election law and party rules. He pointed me to the relevant statutes but said I would have to call the Pennsylvania Democratic Party for a definitive answer to my question. The Pennsylvania Democratic Party staffer I called told me that pledged delegates are not legally bound to their expressed preference, but when I asked him about the signed pledge on my petitions, he said he’d never seen it, didn’t know anything about it, and suggested I call the DNC in Washington, D.C. The DNC in Washington suggested I call my state party.

My next stop was my friend attorney Phil Kircher. Phil is a commercial trial lawyer at the Philadelphia firm Cozen O’Connor, and he cautioned that he is not a specialist in election law. He did pore over the relevant Pennsylvania statutes and concluded that when I signed that pledge, I was not only making a morally binding promise to the voters, I was also making a legally enforceable pledge. “According to Pennsylvania Law, any unsworn statement that is provided to authorities is subject to the laws of perjury,” Phil said. He added, “The pledge says ‘I shall with all fidelity. …’ Shall is what we call a mandatory term; it means that you must do this. I think that this pledge is a statement that you are in this for the long haul and that you can’t change your mind.”

Phil reminded me again that he is not an election lawyer and suggested I call the Committee of Seventy, a venerable Philadelphia nonprofit dedicated to ethical government and clean elections. Sarah Stevenson, an attorney at the Committee of Seventy, had just finished writing a comprehensive and useful FAQ on delegates for the committee’s Web site. Yet when I asked her about the pledge I signed, she said that she was “alarmed,” because she had never heard of this pledge on the petitions. It was becoming clear to me that the only people who’d heard of it are delegate candidates, petition signers, and the Department of State employees who handle these petitions. (It cannot be found on the Web sites of the DNC, Pennsylvania Democratic Party, or the Pennsylvania Department of State.) Stevenson was happy to examine a scan of my petition and review the Pennsylvania statute that mandates the pledge. The statute provides that all committed delegates sign and date a “Delegate’s Statement” on each sheet of his or her nominating petitions, and that the statement shall be in substantially the form of the pledge I had signed.

Stevenson followed up: “After a quick search, I found one case that addresses this issue (from 1984) which seems to imply the pledge is enforceable. The case involved delegates who wanted to switch their commitments—formally, by re-filing delegate statements—from two other candidates to Gary Hart after their candidates dropped out. Relying on state election code filing deadlines and petition requirements, the court did not require the secretary of state to honor the new filings.”

Stevenson later wrote, “In my heart of hearts—in other words, my gut instinct with only a minor review of the law—I don’t think the pledge is legally enforceable. Binding someone to a particular future action seems really objectionable to me. As a practical matter, it obviates the need for delegates—Pennsylvania seats can just be marked ‘Obama’ or ‘Clinton’ and an actual person need not attend the convention and vote.”

But then Phil tells me, “I have to disagree with Sarah here. That commitment is plain English, and you’re saying to the people who signed the petition that you will vote for Obama at the convention. When your name is placed on a ballot, the law requires that the words committed are next to it, and when people go in and vote, they are relying on the fact that you are committed.”

Stevenson suggested I contact Gregory Harvey, a pre-eminent election law expert in Philadelphia, who successfully argued the 1984 pledge case. Harvey e-mailed this response to my query over whether or not my pledge is enforceable, “How are you defining ‘enforceable?’ Enforceable by a court order on the eve of the Convention? Enforceable by a ruling of a party committee rejecting a delegate vote cast contrary to the pledge? Enforceable by a civil action for money damages brought by a disappointed primary voter after the Convention? None of these remedies seem practicable.” Still, his question suggests to Phil that an enterprising voter “might be able to sue and get a mandatory injunction to force you to honor your pledge.”

So it seems I have signed a pledge that may or may not be a promise that may or not be enforceable, although few people even know of the pledge in the first place and fewer can direct me to any definitive ruling on the subject.

“Isn’t it kind of crazy?” I ask Phil. “Our primary is on Tuesday, the whole country is obsessed with it, and yet no one can say how binding it is?” In a March meeting with the editorial board of the Philadelphia Daily News, Hillary Clinton said, “Remember that pledged delegates in most states are not pledged. You know there is no requirement that anybody vote for anybody. They’re just like superdelegates.” The paper affirmed her claim, citing only the DNC and state Democratic Party rules. Pennsylvania Gov. Ed Rendell and T.J. Rooney, chair of the Pennsylvania Democratic Party, are superdelegates pledged to Clinton, and the executive director of the Pennsylvania Democratic Party has taken a leave to run the Clinton campaign here. None of these party leaders seems to know or to have told their candidate that exhorting Pennsylvania pledged delegates to change their vote might be tantamount to exhorting them to break Pennsylvania law.