It's been a season of "novelty" in Washinton over the past couple of years. We saw numerous novel legal theories hurled against Donald Trump in an effort to seize his property or lock him up. Hunter Biden's legal team has similarly attempted novel strategies to keep him out of jail, despite copious amounts of smoking gun evidence in both his gun charges and tax evasion cases. But now congressional Democrats are floating a novel electoral theory. Some are claiming that there is a "loophole" in the DNC nomination process that would allow Joe Biden's delegates to vote for another candidate at the convention if he doesn't officially release them. They are finding this possibility in a portion of the DNC's rules which states, “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” (NY Post)

Democratic National Convention delegates are openly discussing what would happen at the August convention if President Biden either refuses to step aside or drops out of the race — pointing to a “good-conscience loophole” that lets them vote for a new candidate of their choosing.

DNC delegate Elaine Kamarck briefed other delegates Friday morning in a Zoom call that the apparent “loophole” allows for such a rebellion by letting convention-goers bolt if they no longer have a “good conscience” about their pledged choice determined by primaries and caucuses.

Kamarck, who has been on the DNC’s Rules Committee for decades, informed the 50 delegates on the call that “there’s no such thing as Joe Biden releasing his delegates. And Joe Biden gets this.”

This idea was put forward by one of Biden's own delegates, which should make it worrisome for him. She's clearly examining her options. The phrase "shall in good conscience" could be construed to suggest that the delegates must follow their own conscience, I suppose. But the rest of the sentence makes that idea problematic. They are supposed to "reflect the sentiments of those who elected them." How are the delegates to know if the sentiments of those voters have changed since the primary? The only way they had to transmit their sentiments was with their vote. Short of another vote, this seems to be a rules violation.

This seems to be increasingly common in Washington. Everyone pretends to be so formal and democratic. There's nothing we can do. The rules are the rules. Of course, the part they never say aloud is apparently, "unless those rules become inconvenient." This is simply part of a larger reality that few care to ponder. These conventions and bits of pageantry really aren't all that well defined. Everything is done based on traditions. These are not laws we're talking about. They are sets of rules established by each party and nobody will be going to jail if they violate them. They won't suffer anything worse and a bit of bad political optics.

In terms of Biden releasing his delegates, that process isn't spelled out clearly either. That's probably because it's never happened, though we have had four contested conventions. (None in the current era.) Since there isn't actually a formal process, a much better argument could be made that Joe Biden has already released his delegates. (That's the argument that delegate Elaine Kamarck was making.) During the NATO summit, Biden went on camera and publicly stated, ‘The delegates can do whatever the hell they want to do.’

Nothing in the rules says that the candidate must formally release their delegates at or during the convention. When Joe Biden made that statement, the primaries were over and the delegates had already been selected. But that doesn't solve the Democrats' problems even if we accept this premise. If Biden released his delegates (intentionally or not) without naming a replacement for them to back, they are left to decide what name to write down on their own. Sure, they could default to Kamala Harris, but a lot of them will be wary about her even worse poll numbers. If they wind up splitting between Biden and Harris and perhaps a couple of other contenders, it remains possible that nobody would wind up with a majority of the delegates and we would be back to a contested convention scenario. The entire situation is still a mess and this latest proposal doesn't come close to cleaning it up.