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

By Cynthia Baughman
Posted Monday, April 21, 2008, at 3:19 PM ET

(Continued from page 1)

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.

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Cynthia Baughman is a freelance writer who lives on a farm in Douglassville, Pa. She is working on a documentary film, Top Secret Rosies: The Female 'Computers' of World War II, about a World War II project that recruited 100 young women mathematicians to perform ballistics calculations for the U.S. Army at the University of Pennsylvania.
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