The current dispute in the Democratic party over what to do about the delegations from Michigan and Florida is an excellent case study demonstrating that choice on the basis of fairness is unsound.

The problem arose when the Democratic parties of Michigan and Florida decided to violate the Democratic national committee’s (DNC) rules and move their primaries forward to January. Under the rules only small states could hold primaries before mid February; this to prevent large states from gaining too much influence. However, Michigan and Florida wanted their states to play a bigger role in determining the next presidential candidate. These states were told at the time that the punishment for violating this rule would be that their delegate votes would not count at the Democratic convention to be held in August. But despite the warning, the states held early primaries anyway.

The Democratic candidates (with Clinton and Obama the only one’s now remaining), knew that the primary votes would not be counted, and agreed not to campaign in either of these two states. In fact Barack Obama did not even have his name on the Michigan ballot leaving Obama supporters to vote for “Uncommitted,” or perhaps not at all.

When the votes were counted in Michigan, Clinton won 55% of the almost 600,000 votes cast. “Uncommitted came in second place with 40%. In Florida, where Obama’s name was on the ballot, Clinton won 50% of the 1.75 million votes casts, whereas Obama won just 33%.

All of this wouldn’t matter much if one candidate took a strong delegate lead after Feb 5th’s Super Tuesday, as often happens. However, since Clinton and Obama are neck and neck in delegates late in the primary season (Obama has a small lead) and since neither candidate seems likely to earn a sufficient number of delegate commitments to assure a first round victory at the convention, both candidates are scrambling for every delegate. All of which leads to the current controversy.

The Clinton campaign argues that over two million voters in Michigan and Florida will be “disenfranchised” if the current DNC rules are upheld. They say this is unfair to the Michigan and Florida voters, many of whom had no idea that their votes would not count in the first round at the convention.

Democracy is based on the principle that each person’s vote should count equally. In an election, no one person should have more influence than another to decide the outcome. If Michigan and Florida’s votes are not counted at the Democratic national convention, then voters, who are not at all responsible for the breaking of the rules, will be discriminated against vis-a-vis the voters in other states whose votes will count. Clearly this smacks of injustice. This argument based on non-discrimination in a democracy is sound and reasonable.

On the other hand, one principle of fair game play is that the rules of any game should be set and agreed to before the game begins. If the rules are changed midway through a contest, that would likely change the probability of who wins. Furthermore, red flags of suspicion are immediately raised if the rule changes are suggested by someone with an interest in the outcome. In this case, rule changes are self serving and no one views that as fair.

This is the argument of the Obama campaign. They contend that the original election rules must be followed since the rules and the consequences of violations were well known and accepted not only by the state Democratic committees but by the candidates themselves. Voters in these states needed only to turn on the nightly news or read the newspapers to learn about the situation. This rules-of-the-game argument too, is sound and reasonable.

Herein lies the problem with fairness. Two reasonable conceptions of fairness or justice applied to the same electoral problem leads to diametrically opposed conclusions. It is simply impossible to say who’s right and who’s wrong. In a similar vein, the same problem applies in trade policy statements. Both candidates say they want trade to be fair, but what precisely do they mean by fairness? Not surprisingly, no one offers many details. But one has to admit, it certainly does sound good!

The electoral dilemma is complicated by one additional factor. Neither Clinton or Obama can obtain the necessary 2025 delegates to win the nomination with only the pledged delegates; they will also need help from the so-called superdelegates. The pledged delegates are those virtually committed to vote for a particular candidate on the basis of the state’s primary or caucus votes. In this way each candidate receives delegates in proportion to the percentage of votes they received. The superdelegates are the democratic party leaders – senate and house members, governors and other party affiliates – who may freely vote for whomever they like. Although many of them have voiced support for Clinton or Obama, they can change their vote at the time of the convention in August. The candidates have been reaching out for the support of these superdelegates but at the same time have been discussing their proper role.

If the Obama campaign were true to their fairness principles, they would accept that the rules of the game allow the superdelegates to vote for whomever they wish. Indeed these party leaders could decide in August, based on information that has come forward in the Spring and summer months and based on impressions at that time, that Clinton is the best candidate and in the best interests of the party. However, the Obama camp has been suggesting that the superdelegates have a moral obligation to represent the wishes of the voters of their state, presumably by assuring that the overall popular vote winner (Obama leads 13.3 to 12.5 million) or the pledged delegate leader (Obama leads 1390 – 1248) actually obtains the nomination. To do otherwise, presumably, would disenfranchise the voters.

In contrast, the Clinton campaign, which argues to include the voice of the voters in Florida and Michigan, is downplaying Obama’s proportionality argument and is moving aggressively to secure commitments from the superdelegates. Currently Clinton leads Obama in the superdelegates 244-208.

Herein lies the second problem with fairness. Each side picks the fairness principle that serves their own self interest, even if that means shifting inconsistently between different conceptions of fairness. Indeed this is one reason to be wary of fairness arguments – they may not represent true beliefs as much as convenient justifications.

So what is the answer to the delegate dilemma? As I’ve argued there is no clear winner. However, a slightly stronger case can be made in favor of consistency (this is DNC chairman Howard Dean’s position). In other words, since the nomination game is already in progress, it seems best to follow through with the rules as they were originally conceived. That means do not count the delegates from Michigan and Florida (even with a re-vote) and allow the superdelegates to use their own judgments to decide who to support. If the losing side in this process screams “unfair!” then perhaps the winners can revert to that standard parental rebuttal: “well, too bad, life’s not fair!”