Governor Branstad is Rightish: 2016 Iowa Presidential Primary

Come for the talk about candidates coming to the Hawkeye state, but stay for the nugget deeply nestled in Mike O'Brien's First Read piece on the possibility of an Iowa primary in 2016:

The governor also dismissed any suggestion that Iowa might move away from its traditional caucus system in light of a Republican National Committee report earlier this year discouraging caucuses and conventions as nominating processes. Those formats, rather than a traditional balloted primary, sometimes gives impassioned activists more of an ability to sway the outcome.  

"I don't think that we could go to a primary without being in a conflict situation with New Hampshire," Branstad said. "And we've always had a wonderful understanding and agreement with New Hampshire that we would have the first caucus, and they would have the first primary. I think that system has worked well, and I'd like to see us keep it."

"Understanding and agreement" aside, Branstad is correct in pointing out the potential conflict that an Iowa shift from caucuses to a primary would have with the the law on the books in the Granite state:

Presidential Primary Election. The presidential primary election shall be held on the second Tuesday in March or on a date selected by the secretary of state which is 7 days or more immediately preceding the date on which any other state shall hold a similar election, or holds a caucus or in the interpretation of the secretary of state holds any contest at which delegates are chosen for the national conventions, whichever is earlier, of each year when a president of the United States is to be elected or the year previous. Said primary shall be held in connection with the regular March town meeting or election or, if held on any other day, at a special election called by the secretary of state for that purpose. Any caucus of a state first held before 1975 shall not be affected by this provision.

There are a couple of noteworthy items here.
1) As it stands now, Iowa adopting a primary as the mode of delegate selection would seemingly violate the New Hampshire law. A primary would a) not be a caucus and b) could be deemed by New Hampshire Secretary (of state) Gardner a "contest at which delegates are chosen for the national convention". Though, it should be noted that that interpretation provides the secretary wide latitude. Technically delegates are not chosen for the national convention in a primary unless either a) the delegates are on the primary ballot and elected directly on the day of the primary or b) there is a simultaneous caucus/state convention occurring alongside the primary.

In the typical scenario, the primary would only bind delegates (to be chosen later through a caucus/convention system) to particular candidates. Secretary Gardner could then justify allowing an Iowa primary before New Hampshire. However, that would run the risk of applying a different rationale to Iowa than any other similar primary state. Why Iowa, then, and not some other primary state? Of course, the national parties will or would have already singled Iowa out relative to other primary states. The rules of both parties -- as one can best envision them at this point in 2013 -- exempt Iowa but not other states. That is significant. The national party rules, then, make Iowa dissimilar to other states, but would an Iowa primary be too similar to New Hampshire under the law there. There is probably enough wiggle room in the current law to allow it if, you know, Iowa actually decided to adopt a primary as a means of allocating national convention delegates.

Ideally, that last line in the law -- first added to the New Hampshire presidential primary law before 2012 -- would or could be altered to directly identify Iowa or by accounting for the national party exemption.

2) Another interesting twist -- question, really -- is what the new Republican rules do to the Iowa-New Hampshire relationship. Recall that the RNC members at the 2013 spring meeting in Los Angeles reaffirmed the new rule handed down from the Tampa convention that statewide contests be binding. In other words, if statewide precinct-level contests are binding, then potentially an Iowa caucus or primary violates the "or in the interpretation of the secretary of state holds any contest at which delegates are chosen for the national conventions" portion of the law. Granted, that is an or provision and not an and provision. Iowa would only have to meet one of those requirements to comply with the New Hampshire law (or perhaps more appropriately to not trigger the New Hampshire-side reaction -- earlier primary -- in law).

But let's assume (just for fun) that Iowa -- caucus or primary -- had to meet that specific part of the law. Would the Hawkeye state with a binding Republican contest run afoul of Secretary Gardner in New Hampshire? No, again, the language is important: delegates chosen. Unless either of the primary exceptions above are built in, then Iowa would be fine. Keep in mind that the Iowa Democratic caucuses have been binding according to the DNC delegate selection rules for quite a number of cycles now. And that has never served as a point of contention in New Hampshire.

Neither would a binding Republican contest; primary or caucus.

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There were some issues with the 2012 Iowa Republican caucuses, but those were never problems that were not solvable by a means other than switching to a primary as the mode of delegate allocation. FHQ would be surprised if a switch is made and even if it was, it would not necessarily conflict with the law.

That said, if you're New Hampshire, it is awfully difficult to the hold the nation's first primary second. That's where Branstad's reference to understanding and agreement is key.

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Rubio says super PACs helped drive his push for moving Florida primary

So sayeth the headline from the Tampa Bay Times.

Here's what Rubio had to say:

"All I did was let them know what the party wants," Rubio told the Buzz. "They are pretty clear they are going to continue to penalize states," that move up their primary, resulting in fewer delegates and distant hotels for the nominating convention.  

"When we changed the primary when I was in the House, it made sense because at that time these elections were still being decided in three or four early states. In the advent of super PACs, where someone will give you $1 million and you can survive for months at a time, it's changed. If these races are going to go on until April or June, then it behooves Florida to have its full comple­ment of delegates."

The bit about the penalties is consistent with what Rubio's state director in Florida has already said. And honestly, that should probably have been the extent of the senator's comments. However, he raised the specter of super PACs as well. Look, did super PACs play a role in the 2012 Republican nomination race? Sure. Were Foster Friess and Sheldon Adelson the reason that the race went "until April or June"? No. No, they weren't.

The main reason for the length of the primary campaign in 2012 was a spread out calendar. The combination of Florida repositioning itself at the end of January, thus pushing up the majority of carve-out states, and a number of other states moving contests into April, May and June was what drove the calendar dynamics. And those state-level actions were a direct response to -- We're going to go full circle here. -- the national party rules and especially the penalties. The spread out calendar meant that it was going to take -- even in a marginally competitive nomination race -- until late March before anyone could reach the requisite number of delegates to wrap up the nomination. As it stood, it was all but impossible for Santorum, much less Gingrich, to catch Mitt Romney in the delegate count. That is a fact that became clearer between Super Tuesday and when Santorum suspended his campaign in early April.

That was 2012.

2016 may be a bit different in terms of the calendar. If there are no Florida-type moves, a la 2008 and 2012, from other states, then the primary calendar may kick off in late January and feature a February full of contests in the lead up to what would presumably be Super Tuesday on the first Tuesday in March (March 1). Depending on where Florida ends up -- It could be as late as April based on the likely-to-be-signed elections bill. -- the point at which 50% of the delegates plus one have been allocated (the earliest point at which a candidate could win the nomination) will likely not happen until April anyway.

...without even considering super PACs.

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A Follow Up on the 2016 Florida Presidential Primary

If you haven't read FHQ's take on the implications on the Florida presidential primary of the broad elections reform bill passed on the final day of the legislature was in session last week, start here.

There are a couple of additional points FHQ wants to add to the original discussion of the destination for the 2016 Florida presidential primary.

A) I tweeted this on Sunday, but it does bear repeating in this space. It really is striking the the 180º turn that political actors in Florida have made over the last six years regarding the Sunshine state presidential primary. We have gone from an initial bipartisan adoption of legislation endorsing the idea that Florida has just as much right to be early as Iowa and New Hampshire in 2008 to a partisan Republican stance (among state legislative leaders and state party elites) that Florida deserves to be early and no later than the fifth state to hold a contest in 2012.

Contrast that with what was said about the backdrop for the last-minute amendment to the elections bill affecting the presidential primary. Rubio Florida state director, Todd Reid, reached out to FHQ over the weekend (...offering to share the language of the bill with me following my late-night tweet Friday).¹ Reid has become a point man of sorts for discussions of the presidential primary rider on the elections bill passed last week and was kind enough to exchange emails with me on the matter. Again, contrast 2008 and 2012 above to Reid's reasoning for a move:

1. The RNC superpenalty is too harsh.
2. The grassroots (especially the actual delegates to the convention in Tampa) were unhappy with and vocal about the hotel and convention floor seating assignments situation.
3. The grassroots was always hit or miss about the utility of the early primary. [Again, as FHQ stated above, it was a move pushed by state legislative and state party leaders; not the grassroots.]
4. The Presidential Preference Primary Date Selection Committee "was a newly created entity and no one was really wedded to it." [The parameters guiding the PPPDSC left up to chance to some extent that the Florida could end up violating the superpenalty.]
5. There was some desire -- and this is the 180 -- to reduce uncertainty for rulesmakers and schedulers by having a decision on the date of the Florida primary before October 2015.

Embedded in the reasoning are two things: 1) the new penalty is having the desired effect (directly or not) and 2) Florida, contra 2008 and 2012, is signaling that it will play by the rules in 2016. Again, that is a striking reversal. And yes, that's the sort of thing that typically stokes the "He has to be running" chorus concerning Rubio in 2016. It is a move that is made with the most political of political moves serving as the backdrop.

B) FHQ made the point in the original post that there is some ambiguity to the new measure that could complicate its legal application in 2015-16. Then, I made the point that a discontinuity between national party rules could lead to the triggering of an earlier (February 23) primary under certain circumstances. [One could call this a discontinuity between the Florida law and RNC rules.] As FHQ stated at the time, all of that was dependent upon the maneuvering of the Republican Party of Florida. Drop the true winner-take-all allocation of delegates and that could open the door.

There are a couple of follow ups to this:

1. Delegate allocation decisions by the Republican Party of Florida could push the primary forward a week further, but it could also push the primary back into April as well. There is no proportionality requirement in the RNC rules at the moment. But if that may/shall discrepancy is "fixed" then the RPOF could make the argument that the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty is the first Tuesday after April 1. But that brings us back to the original point... 
2. On the clarity side, there would still be a potential argument with Democrats in Florida over the "true" date called for in the new statute. RPOF could make the case that the primary should be in April, but Democrats in Florida may desire a March primary instead. Call this the either/both issue proposed in the first post. Without the sort of guidance that the inclusion of either or both would entail in the statute, it is difficult to arbitrate the decision on when the primary should be held. And it goes without saying that the statute as currently constructed does not provide for an arbiter on the decision of when the date of the primary should be. 

• Court could be one route, but depending on when this potential dispute arises, it could push up against when the primary season is to start (or more importantly when the filing deadlines hit for the candidates). 
• It is also true that some states have proposed laws requiring prior agreement among state parties to a primary date. Otherwise, the secretary of state decides or a fixed date is invoked. This is the law regarding the scheduling of the Minnesota caucuses that was problematic in 2011. The new bill in Maine mimics this set up with reference to a proposed primary in the Pine Tree state. On the other end, the recently proposed Nevada legislation would give the secretary of state in the Silver state the date selection decision, not if the parties were in disagreement, but if another western state jumped ahead of the date for the primary called for in the statute (if the bill became law). 

As FHQ alluded to in response to the proposed change in Florida, the intent of the legislation is of real benefit to the national parties and carve-out states. However, the flexibility added to the statute may actually serve as ambiguity; shifting problems between the state and the national parties to a potential showdown between the two state parties.

...with no one to solve them.

As well-intentioned as the change is, the legislature will likely need to revisit this at some point. That is why it was good this was added now, rather than in, say, 2015 when it may have been more difficult to fix.

Stay tuned...

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¹ I want to point out the fact that I did not press (much less ask) Reid on the Rubio/2016/Florida primary shift point. FHQ will leave that to others to explore. The one thing I will add is that such maneuvering -- if there was a connection -- is not unprecedented in home states or elsewhere.

Jimmy Carter's nascent campaign in the lead up to 1976 was involved in arguing (in Florida) that the Florida presidential primary should remain early (then in March). During the invisible primary of the 1980 cycle, President Carter's team again was instrumental in urging both Georgia and Alabama to join forces with Florida at an early point on the calendar. The Ted Kennedy threat was apparent in the move as the southern subregional primary was seen as potential counter to any advantage Kennedy might gain in the two states after Iowa that year: New Hampshire and Kennedy's home state of Massachusetts. [As it turned out, Carter won Iowa, New Hampshire and the three southern states and encountered more trouble from Kennedy later in the calendar when the nomination was mostly wrapped up.]

Bill Clinton's campaign -- or Clinton himself -- used the Arkansas governor's connections from his time as head of the National Governors Association as an in with Georgia governor, Zell Miller. Miller helped guide through the Georgia General Assembly a bill to shift up the date of the Peach state primary by a week in 1992 (to the first Tuesday in March). This move was intended to give Clinton a southern boost after New Hampshire. [NOTE: The bill was proposed, passed and signed into law before Clinton had announced his candidacy.]

More recently and less obviously, the 2008 cycle saw Arkansas and Illinois move to earlier and seemingly more advantageous dates on the presidential primary calendar (for favorite sons/daughters candidates). There were Arkansans seeking the nominations in both major parties (Huckabee signed the Arkansas move into law in 2005.) and among the stated reasons for the move of the Illinois primary in 2007 was to help then-Senator Obama in the Democratic primary race.

So again, it has happened before. Whether that is the case with Rubio and Florida for 2016 is an open question.

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2016 Florida Presidential Primary: Out of January, But Confined to March?

Sine die day 2013 in the Florida legislature was a typical last legislative day of the session in that there was the usual hustle and bustle of pushing some measures -- often complex -- through at the last minute. Late Friday in Tallahassee that included an omnibus elections reform bill that ultimately included a provision altering the dynamics of the Sunshine state presidential primary.

Early reports out of the capital (see Miami Herald) seem to have misinterpreted both the practical application of the bill and its implications (...likely or otherwise). First, here are the changes deeply nestled in an amendment to HB 7013 [scroll down to line 1005 on p. 37]:

Each political party other than a minor political party shall, at the presidential preference primary, elect one person to be the party's candidate for nomination for President of the United States or select delegates to the party's national nominating convention, as provided by party rule. The presidential preference primary shall be held in each year the number of which is a multiple of 4 on the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty. Any party rule directing the vote of delegates at a national nominating convention shall reasonably reflect the results of the presidential preference primary, if one is held.

FHQ will spare everyone a cut and paste of the struck through portions of the original bill that were changed, but I do want to drive home one very important point about the transition called for in the above legislation: The changes to this bill did not and do not eliminate (or nix) the early presidential primary in Florida. The changes made to the election law two years ago already accomplished that, or at the very least provided for the possibility of that (impermanent) outcome. The law, as altered in 2011, laid the groundwork for a handpicked committee -- the Presidential Preference Primary Date Selection Committee (PPPDSC) -- to select (by the end of September) the date on which the Florida presidential primary would occur in the following (presidential) year.

But that committee had a fair amount of leeway in making its decision. The bill signed into law in 2011 gave the PPPDSC the ability to set the date of the presidential primary as early as the first Tuesday in January and as late as the first Tuesday in March. That is different from the 2007 bill that changed the law to permanently position the Florida primary on the last Tuesday in January on the calendar. Though the PPPDSC opted to schedule the 2012 Florida primary for the same date (as called for in that 2007 law), the mechanism by which that occurred was different.

The changes pushed through in the amended HB 7013 yesterday did not eliminate the early presidential primary; it eliminated the ability of Florida -- through the decision-making force of the PPPDSC -- to be more adaptive in selecting a perceived advantageous calendar position. It eliminated those options.

The curious thing is that this maneuver was not even necessary. If the presumed landing spot for the Sunshine state presidential primary in 2016 is the first Tuesday in March (more on this in a moment), then that was already an option under the law enacted in 2011. One could argue that the legislature was leaving it to chance that the PPPDSC would opt in late 2015 to select a date for the primary that would be non-compliant with at least one of the national parties' sets of delegate selection rules. That is true but it is difficult to fathom a scenario in which a group -- the PPPDSC -- selected by the governor, president of the state Senate and speaker of the state House would go rogue. The whole issue throughout 2011 in Florida was that the unwritten mission of the committee was to do just that: go rogue. But that was the guidance the majority Republican group had gotten from the legislature, the governor and the Republican Party of Florida. It was not to go rogue (with the scheduling of the primary) so much as it was to make the Florida primary relevant/decisive to the Republican nomination race. Again, it is hard to imagine a scenario where a hypothetical PPPDSC put together in 2015 would set a date that would conflict with a calendar position that those very same guidance-providing interests desire. If the state party, governor and legislative leaders wanted a "later" date, they would place individuals on the committee who would support such a move.

In that regard, this change is a needless one. It was not necessary. It certainly was not necessary given the justification that was circulated: that Florida was going to get hammered with penalties from both national parties. Nothing in the current Florida elections law painted the state into any corner as far as delegates or delegate penalties were concerned. As long as the window provided to the PPPDSC by law included January and February, the possibility of facing the super penalty on the Republican side was always present. That is, present but not assured.

As for the Democrats, well, there are no DNC delegate selection rules for 2016 yet, so the Miami Herald reporting that those sanctions would be worse than the Republican penalties is wrong [WRONG, WRONG, WRONG]. It is factually inaccurate to state that "none of the Democrats' delegates would count in 2016, nor did they in 2008". Again, there are no 2016 delegate selection rules for the Democratic nomination as of now. And on top of that, Florida's delegates "counted" in 2008. The Democratic Party in Florida sent a full delegation with full voting rights to the convention in Denver that year. There was a period between late summer 2007 and the 2008 convention where Florida Democrats lost half their delegates, then all their delegates, then gained back half again (told comedically here) before gaining them all back for the convention. Those delegate slots did not count during primary season, but the delegates selected did count at the convention. [Here's a full timeline.]

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Finally, FHQ wants to talk a little about the language of this bill and what means for where Florida will end up on the 2016 calendar. The presumption is that the "first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty" means the first Tuesday in March (March 1, 2016). I do not think that is the case. That is the highest probability landing spot, but it is by no means the only possibility. There are a couple of reasons why that is the case.

First of all, and to repeat an earlier point, there are no Democratic rules at this point. The DNC Rules and Bylaws Committee may or may not continue with the first Tuesday in March as the earliest point that non-carve-out states can hold delegate selection events. That is an unknown right now, but FHQ is on record as saying that there is at this point little expectation for big changes on the Democratic side of the equation.

The second reason that it is anything but clear that the first Tuesday in March is the definitive calendar position for the Florida presidential primary is because of a semantic double whammy. For starters, it is an open question as to what constitutes the earliest calendar position without penalty on the Republican side. States can hold, as Michigan is seemingly going to do in 2016, a contest as early as the last Tuesday in February without penalty. With a shift in the method of delegate allocation, Florida Republicans could match that position. Secondly, the change in language in the Florida law does not require agreement between the major political parties on the issue of the earliest point at which states can hold primaries and caucuses. Without that sort of requirement, there are two ways of reading the proposed (It still requires the signature of the governor to be enacted.) law. Either...

1. As it is being widely interpreted at the moment, that is the first Tuesday where both national parties' rules are congruent with respect to the earliest allowed date. In other words, even though under certain circumstances the RNC allows for an unpenalized, non-carve-out contest as early as the last Tuesday in February, the Florida law requires the penalty-less window to be open in both parties before the primary can be held. ...or...
2. The other interpretation is the law is suggesting that when looking at both sets of major political party delegate selection rules, the state can hold a primary at the earliest point allowed by either parties' rules. 

It is not clear which is correct, which is why FHQ is of the opinion that the Florida legislature will revisit this segment of the law (if signed) in future sessions. The first interpretation begs for the addition of a both whereas the second interpretation seemingly requires an either. Either way, one or the other will need to be inserted in the law at some point for clarity.

Now, there are a couple of caveats to add to that second interpretation. One is that one must assume that the RNC will stick with their rules and penalties are currently constructed. Again, it is open as to what constitutes the earliest date on which a contest could be held without penalty in the Republican rules. If that last Tuesday in February/first Tuesday in March loophole is left unchanged, then that may cause problems for the legally constructed scheduling of the Florida primary. Of course, that leads into the second and largest caveat. Much of this depends on what the Republican Party of Florida wants to do with its method of delegate allocation. FHQ has argued that under certain circumstances, Florida could abandon a non-compliant true winner-take-all method of delegate allocation in favor of a compliant hybrid method with an element of proportionality and still maintain or improve the state's influence over the Republican nomination process (as measured by the resulting margin of candidate delegates). The RPOF could make that switch and complicate matters and the application of this law by making the last Tuesday in February the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty. However, that point is moot if RPOF scraps that idea and maintains a true winner-take-all formula.

Of course, the catch is that Florida Republicans -- if avoiding sanction is the goal -- are going to have to make some sort of change to their method of allocation, otherwise the delegation will be reduced by half (depending on the fate of the may/shall question). The party may be comfortable with that penalty as it has proven over the last two cycles, but if unnecessary changes are being made to state election law based on the threat of a super penalty that may never have been triggered by the Florida primary, then who knows?

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The big winners in yesterday's maneuvering in Tallahassee were the national parties and the carve-out states; especially South Carolina (which has had to push forward the last two cycles because of Florida to maintain its first in the South status). Overall, chaos was reduced to some extent for the front of the calendar. Yet, in Florida questions remain as to the true nature of this bill. Chaos, or more appropriately, uncertainty were increased on the state level. For the last two presidential election cycles, Florida has been a perfect example of the limitations of parties policing themselves on issues like the presidential nomination process. This case is different, but continues to demonstrate how the different party interests  -- national parties, state parties, parties-in-state-governments -- interact with each other to accomplish that policing goal. In this instance, one can talk about policing being accomplished rather than it not being accomplished.

That is a welcomed development to the presidential nomination process. But it never had to be just Florida. All it takes is one state to be able and willing to challenge the national party rules. As the 2016 presidential nomination race continues -- yes, continues -- it will be interesting to see if any other state takes up the mantle.

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Maine Bill Would (Re-)Establish Presidential Primary, Bind to New Hampshire Under Certain Conditions

Earlier this year, FHQ mentioned that the Maine legislative committee charged last year with considering the prudence of a presidential primary -- as opposed to caucuses -- had passed on the idea, citing no desire among members or constituents for the switch. That conclusion did not preclude future legislative action on transitioning from caucuses to a primary as the means of allocating national convention delegates. That is particularly true, perhaps, in light of the fact that the 2012 elections saw control of both chambers of the Maine legislature swing from the Republican Party to Maine Democrats.

That seems to have been the case as Representative Deane Rykerson (D-92nd, Kittery) has introduced legislation (LD 1422) to reestablish a presidential primary in the Pine Tree state that has eight Democratic representatives and two additional independent (one representative and one senator) co-sponsors. The details of the proposed primary system are interesting:

PRESIDENTIAL PRIMARY ELECTIONS
Determination and date of primary; voter eligibility 

1 Determination of primary. Whenever the state committee of a party certifies that there is a contest among candidates for nomination as the presidential candidate of the party and that the committee has voted to conduct a presidential primary election, the State shall hold a presidential primary election. 

2 Date of primary. A presidential primary election held pursuant to subsection 1 may not be held earlier than January 1st of the year in which the presidential election is held. The date of the presidential primary election must be chosen in the following manner.

A If certification is made pursuant to subsection 1 for only one party and that party chooses a date for the presidential primary election, the State shall hold the election on that date. The party shall deliver to the Secretary of State notification of the chosen date by December 1st of the year prior to the presidential election year.  

B If certification is made pursuant to subsection 1 for more than one party and those parties agree by November 1st of the year prior to the presidential election year to one date, the State shall hold the presidential primary election on that agreed-upon date.  

C If a party does not choose a date pursuant to paragraph A or there is no agreement on a date pursuant to paragraph B, the State shall hold the presidential primary election on the first Tuesday after the presidential primary election in New Hampshire, unless that primary occurs in the preceding calendar year, in which case the election must be held on the first Tuesday in March.

If this bill is passed (and signed into law), then, the immediate impact is pretty minimal. State parties would still have the ability to hold caucuses as the means of allocating delegates, but would have a state funded primary option at their disposal. That is true even if just one party opts into the primary system.

Where things get interesting is in the area of scheduling the contest. Let's say Maine Democrats opt in to a hypothetical presidential primary and Pine Tree state Republicans maintain a caucus system. Maine Republicans would retain the ability to schedule their caucuses at any point on the calendar within the guidelines of the RNC rules (to the extent the party wants to abide by those rules). Democrats in Maine would face potential conflicts with national party rules as well, but would have the freedom to schedule a state funded primary as early as January 1 of a presidential election year. If the 2016 Democratic Party delegate selection rules are consistent with the rule that governed the 2012 process, the earliest date on which contests other than those in Iowa, New Hampshire, Nevada and South Carolina could be scheduled is the first Tuesday in March.

If both parties opt into a hypothetical state funded primary system, then they have to agree on a primary date that can be no earlier than January 1. If neither party selects a date or if the parties cannot agree on a date for the primary, then the presidential primary would be held on the Tuesday following the New Hampshire primary. First of all, that would not conflict with New Hampshire law because it would be seven days after the New Hampshire contest. That is the requisite buffer required by law in the neighboring Granite state. Secondly, however, this would only hold true if the New Hampshire primary is scheduled in the same calendar year as the presidential election. Should the New Hampshire primary be forced into, say, 2015 and no date be agreed to by the two major parties in Main, then the Maine primary would be held on the national party rules-compliant first Tuesday in March.

It should be noted, however, that the Maine state parties would have the ability to schedule the primary in the window of time reserved for the carve-out states. Maine could serve as a challenge to the rules and not really face much of a sanction on the Republican side. The jury is still out on what the DNC may do with its own 2016 penalties.

This bill is worth tracking. It is sponsored by Democrats in a Democratic-controlled legislature, but Maine does have a Republican governor currently.

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2016 RNC Rules: A Loophole and Another Layer for Would-Be Rogue States to Consider

Last week, FHQ examined more closely the so-called super penalty that is now a part of the Republican National Committee presidential delegate selection rules for 2016. That sanction is specific to states that violate the timing rules -- when a state can hold its delegate selection event -- and would reduce the delegation size of any state holding a primary or caucus before the final Tuesday in February  to twelve delegates. The point of the exercise was to show the degree to which the new restriction seemingly tamps down on would-be rogue states. It turns the knob up on the penalty on large and/or willing (and able) states and significantly whittles down the list of small states that may also want to crash the early calendar party.

Of course, the RNC rules assume that states willing and able to move up at all costs will remain mostly stationary and will not be proactive as 2016 approaches. In particular, the rules assume that 1) Republicans in especially Arizona, Florida and Michigan will find the super penalty a significant barrier to primary dates earlier than February 23, 2016 and 2) each of those states will maintain their traditional (or if not that, current) methods of delegate allocation. With regard to the former, that may be. For those states, a penalty-induced reduction to twelve delegates is going to translate to a greater than 75% penalty. Still, it will be up to actors in each state to determine whether that penalty hurts their respective states more than an earlier-than-February-23 primary would help. The RNC is betting that that will be a sufficient penalty. [FHQ tends to agree, but it is an open question from our vantage point here in 2013.]

Yet, there is some recourse for all three usual suspects (and others, if it comes to that). As FHQ has mentioned previously, the timing rules are but one area in which the RNC levies penalties. The other is in the area of delegate allocation. As the rules stand now, there is no proportionality requirement for contests held prior to April 1 as was the case in 2012. The "may/shall" question may or may not be addressed at future meetings of the RNC.¹ The calculus would be different for both the RNC and states, but if "may" is reverted to "shall" at some point, and the proportionality requirement is reaffirmed, then the door is still left open to states to skirt, or perhaps more appropriately, game the rules.

Obviously, if the there is no proportionality requirement, then the process reverts to what it was in 2008: states determine how they want to allocate their apportioned delegates regardless of the what-would-then-be meaningless penalties discussed in Rule 17.

But if there is a proportionality requirement, that 50% penalty for using non-compliant methods of allocating delegates is back on the table. The assumption within the RNC is that Arizona and Michigan could stay on February 23 -- where both states' primaries are currently scheduled according to their respective state laws -- but if they maintain their current methods of delegate allocation would be docked 50% of their delegation. That serves as a pseudo-penalty for holding a delegate selection event prior to March 1 (the first Tuesday in March in 2016). In other words, if Arizona, Michigan and also Florida want an early primary date and do not also mind a 50% penalty -- a penalty that has not proven to be a deterrent to any of those states over the course of the last two presidential election cycles -- then each state has a landing place somewhere in the week prior to March 1, 2016.²

But that 50% penalty would only be in place if those three states with a history of violations maintained non-compliant, winner-take-all methods of delegate allocation; not because they were "too early". And if you have not noticed the flaw above, let FHQ point out that under the proportionality guidance that the RNC provided in 2011 and would/will likely extend to 2016 if the proportionality requirement is reinstituted, Michigan would be rules-compliant. Well, Michigan would be rules-compliant if it utilizes the original delegate selection plan it put in place for the allocation of a full, unpenalized delegation. That is, Great Lakes state Republicans would allocate congressional district delegates in a winner-take-all fashion dependent upon who won each congressional district and the remaining at-large delegates would be proportionally allocated based on the statewide results (to candidates who surpass a 15% of the statewide vote threshold).

If that is the plan Michigan Republicans use in 2016 and the primary remains on February 23, then Michigan would face no delegate reduction. Technically, Michigan would violate Rule 16 (no contest prior to March 1), but not "qualify" for the sanction in Rule 17 (timing penalty assessed to states with contests before the last Tuesday in February).

What's interesting is that Arizona, Florida and other states could follow suit. But, focusing on Arizona and Florida, a change could be made to the method of delegate allocation, and the two states could still come out in better positions relative to their  respective 2012 allocations. What FHQ is driving at here is that Arizona and Florida could make a change from a true winner-take-all method to one of the several proportional options the RNC allows and potentially still not lose any influence.

How?

Well, a transition from a true winner-take-all allocation to a true proportional allocation is likely giving away too much; leaving too much to chance. If there is a runaway frontrunner, then it is not likely to make much difference. However, if a race is hypothetically more competitive, then a switch from winner-take-all to proportional is unnecessarily injurious in terms of the delegate advantage the state may provide the ultimate winner.

The question, then, given the combination of rules above, is whether a state such as Arizona or Florida could make a switch from a true winner-take-all system to proportional and still come out ahead.

To best highlight this we can reallocate the 2012 delegates -- unsanctioned -- and look at the difference in the delegate margins between candidates/across methods if any. This simulates a situation where either or both of the states in question could modify their delegate allocation method to avoid any sanction from the national party, even with a pre-March 1 date. To reiterate a point FHQ made ad nauseum during 2011-2012, the lowest threshold for achieving proportionality in the eyes of the RNC is the method described above: winner-take-all by congressional district and (conditionally) proportional statewide.³

Recall that Mitt Romney won both Arizona and Florida in 2012 and claimed all 29 and 50 delegates from them, respectively. In other words, the former Massachusetts governor and eventual Republican nominee left those states with either a +29 or +50 delegate margin. Those are our baselines for comparison. If Florida and Arizona were winner-take-all by congressional district, but proportional in terms of the statewide delegates (and assuming 2016 rules), both states would have potentially doubled their delegation sizes, and/but have put more delegates on the table for candidates other than the winner.

In Arizona, 58 total delegates would have been at stake. That is 27 congressional district delegates, 28 at-large delegates and 3 automatic (party) delegates. Romney won all eight congressional districts.⁴ Additionally, he carried over 52% of the vote among the three candidates who cleared the 15% threshold. [The others over 15% were Newt Gingrich and Rick Santorum.] That would have meant 24 congressional district delegates and 15 proportionally-allocated at-large delegates for Romney. Santorum would have netted 8 at-large delegates and Gingrich would have pulled in 5.⁵ With 39 total delegates, Romney would have been 31 delegates clear of his next closest rival; an advantage of two delegates more than he left the state with under the sanctioned, winner-take-all rules in 2012.

And in Florida?

Instead of a penalized total of delegates set at 50 under the winner-take-all rules, Florida would have had a total of 99 delegates at stake if Sunshine state Republicans had been compliant with the RNC rules on "proportional" delegate allocation. Encompassed in that total would have been 81 congressional district delegates, 15 at-large delegates and 3 automatic (party) delegates. In this scenario, Romney won 22 of 25 congressional districts and 59% of the statewide vote (among the two candidates who cleared 15%).⁶ The former governor, then, would have ended up with 66 congressional district delegates and 9 at-large delegates (75 total delegates). Newt Gingrich's second place finish in the January 31 primary would have meant 6 at-large delegates, and by virtue of having won three congressional districts, 9 additional congressional district delegates (15 total delegates). That leaves Romney +60 over his nearest competitor; a gain of ten delegates over the cushion he had coming out of the state under straight winner-take-all rules in 2012.⁷

In both instances -- Arizona and Florida -- the winner came out better under revised and compliant rules than under a non-compliant and penalized delegate allocation method.

Now, caveats abound in this simulation. Sure, neither state lost any influence (as measured by the delegate margin it provided the winner under the assumptions of the simulation) and in the process did not also lose any delegates. However, if the rules had been different, candidate strategy surely would have been adapted accordingly. Santorum may have opted to spend some time and resources in Arizona as opposed to focusing everything on the Michigan primary the same date (after non-binding victories elsewhere earlier in the month). Also, Gingrich could have pulled some resources from Florida and redistributed them both outside the state in preparation for subsequent contests and/or on a handful of additional Florida congressional districts where he may have been more competitive and/or could have won.

On the states' side of the equation -- or their attempts to maximize their influence in the context of the nomination process -- this does add an additional layer to the 2016 calculus. There is a new tradeoff that would-be rogue (but not so rogue in the eye of the RNC penalties) would have to or could consider. On the one hand, why lose delegates when you don't have to? Any of these three states could go earlier than March 1 and modify their delegate allocation rules to maintain compliance and not lose any delegates (as long as the contests were not scheduled before the final Tuesday in February). That is weighed, of course, against putting all of the delegates on the table in a potentially more competitive environment that may end up diluting the influence of the state in the grand scheme of winnowing the presidential field and/or proving kingmaker for the nominee, thus effectively wrapping up the nomination.

As is the case with a great many of these sorts of tradeoffs (i.e.: When is the best time to hold a primary or caucus?), it can be difficult to definitively answer the question in advance. There is too much uncertainty. Uncertainty about the identity of the candidates who may run. About how they perform in earlier states. About which candidates would still be viable at the point in the calendar when your state is scheduled. About which other states are also considering similar moves. About the usual issues of the timing of these decisions also. The decisions are often made well in advance of when a great many of those questions above can be answered so as to allow the delegate selection plan to be implemented (i.e.: to administer to the election process). The national parties do both have deadlines for when states should have in a place a plan for the upcoming delegate selection process (usually in the late summer or early fall of the year preceding a presidential election).

But states like Florida and Michigan and Arizona have shown in the past that they want to have their cake and eat it too. Threading this particular needle -- though it may be considered and ultimately acted on -- is a tough one to do in advance. If the invisible primary has seemingly produced a clear frontrunner, the gamble is easier; not so much of a gamble. The rationale among state-level actors would be, "Hey, we know the likely outcome, let's alter the delegate allocation rules so as not to lose any delegates through penalty." The closer/more competitive it looks like the race will be, though, the harder it becomes for states to pull the trigger on a plan that may or may not reduce the state's influence.

After all, a win may be a win no matter what the delegate advantage is coming out of any given state (see Santorum's early February victories in non-binding contests in Colorado, Minnesota and Missouri in 2012).

This bears watching not only in Arizona, Florida and Michigan but in other states that may opt to alter their rules to maximize their influence. Of course, none of this is likely to be taken up until state parties hold off-year conventions or executive committee meetings to make these determinations in 2015.

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¹ The 2012 rules held that states "shall" allocate delegates in a proportionate manner if they hold contests prior to April 1 (Rule 15.b.2). The current Rule 16.c.2, however, states that states "may" hold proportional contests before that same point on the calendar. There is, then, little to no force behind the rule. It is a suggestion for 2016 instead of the mandate the rule was in 2012.

² That March 1 threshold is assumed and has proven to be a point on the calendar over which most states are unwilling to cross due to the penalties both parties have put in place.

³ Some states used this method but took advantage of a provision in the RNC definition of proportional that allowed a conditional allocation of the at-large/statewide delegates based on the results of the primary. If a candidate received a majority of the vote statewide either all of the state's delegates (congressional district delegates included) or all of the at-large delegates could be allocated to the winner. Otherwise, the allocation of the at-large would be proportional.

⁴ The strange thing about this is that neither Arizona nor Florida had newly drawn congressional districts at the times at which their primaries were held. New lines had been drawn to account for the new district in Arizona and the two new districts in Florida, but neither plan had been precleared as part of both states' coverage under the Section 5 provisions of the Voting Rights Act (as, for instance, South Carolina had in late 2011 ahead of the January presidential primary in the Palmetto state). There was still activity between the Department of Justice and both Arizona and Florida as late as April. To FHQ's knowledge, neither state overtly lobbied the RNC with the argument that lack of Section 5 preclearance effectively infringed on the states' rights to determine their own method of delegate allocation and subsequent abilities to comply with the rules. Without clearly defined and approved congressional district lines, neither Arizona nor Florida had the ability to choose any of the "proportional" methods of allocation by congressional district. Their options were either a true winner-take-all allocation or a true proportional allocation. Both obviously opted for the former; methods both states had traditionally used in the pre-proportionality requirement days (before 2012, then). This is not to suggest that those sorts of pleas would have been successful, but the argument could have been made that certain options that were available to some states were not available to Arizona or Florida. New York, for instance also had redistricting issues as well (but those were not Section 5 related) and had to have contingencies in place for the method of allocation under a 27 and 29 congressional district alignment. Those contingencies were not in place in either Arizona or Florida; some evidence that there had been no Section 5-related argument put forth by either state party before the RNC.

⁵ Due to the issue cited in footnote 4, those three congressional district delegates from the ninth district are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

⁶ See footnote 4.

⁷ Due to the issue cited in footnote 4, those six congressional district delegates from the twenty-sixth and twenty-seventh districts are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

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A Closer Look at the RNC Super Penalty for 2016

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A Closer Look at the RNC Super Penalty for 2016

The RNC spring meeting in Los Angeles last week briefly shone the light back on the party's 2016 presidential delegate selection rules. There are a couple of matters that FHQ will deal with later this week in reaction to that meeting, but there are also some leftovers from the three part series of posts (which wrapped up last week) on the current state of the rules that we would like to circle back to.

To start with, FHQ will focus on the so-called super penalty the RNC has put in place to deal with states that may be willing and able to break the timing rules laid forth in Rule 16(c). The new penalty is described in Rule 17(a):

If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state, and the corresponding alternate delegates shall also be reduced to nine (9). 

All states, then, that hold a delegate selection event prior to the last Tuesday in February -- in 2016, that is February 23 -- would have their delegation to the convention reduced to 12 delegates. If this penalty had been in place in 2012, Florida's January 31 primary, for example, would have seen the state's delegation shrink from 99 delegates to 12; instead of the 50% penalty that knocked the Sunshine state down to 50 delegates.

The innovative aspect of all of this is that the new Rule 17 puts in place a sliding scale of penalties -- variable by state size -- that ends up buttressing the so-called "on ramp" that the Growth and Opportunity Project report indicated the party values. In other words, big states with large delegations would be taking more of a gamble in breaking the timing rules than small states. Taking the original, pre-penalty 2012 delegate numbers, we can assess just how large the super penalty would have been had any state held a binding primary or caucus prior to the last Tuesday in February:

The result is that the knob is turned up on a seemingly ineffective 50% penalty for over three-quarters of the states and territories.¹ California's delegation would be docked 93% of its delegates while Vermont would face a much smaller 29% penalty. This has the practical effect of amping up the penalty on those states that have proven to be the most willing to jump the queue. Florida would face an 88% penalty to its delegation. Michigan and Arizona, though both are currently compliant with February 23, 2016 primary dates, would face 80% and 79% penalties, respectively, for moving up into the window of time on the calendar reserved for the carve-out states. 

The question is whether this incentivizes smaller states moving up, gambling that their delegation is already small and calendar position is more important. Does the penalty change tip the balance in that direction? Well, eyeballing it, probably not. Look at the 13 states and territories with a penalty of 50% or less. New Hampshire already has protected status. New Mexico, DC, Rhode Island, Delaware and Vermont are all primary states controlled by Democrats. That leaves the territories -- most of which could not incur any penalty because the size of their delegation is already below 12² -- Maine and Hawaii as potential rogue states with an incentive to shift to an earlier and non-compliant date. Hawaii is a tough sell during primary season. Getting candidates out there and/or spending money is not something the system has seen much of in the post-reform era. 

That leaves us with Maine. And Pine Tree state Republicans have held early February caucuses for the last couple of cycles. But are they willing to flaunt the rules and take an approximately 50% penalty to remain there in 2016? That is the question.

All in all, unless one of the big states opts to go nuclear -- by blowing up their delegation -- this is theoretically a potentially effect penalty. It is variable in its treatment of states; giving larger states a poison pill and reducing the list of possible/rational violators to smaller states -- those where the on ramp of retail politics would be enhanced instead of hinder (as would be the case with larger states).

It will be interesting to see how this one plays out in 2015.

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¹ Calling the 50% penalty ineffective is somewhat misleading. That penalty was more than sufficient in forcing compliance in the vast majority of states in 2012 and before. Where is was less than effective was under the circumstances where a limited number of states were willing to incur the penalty in exchange for what actors in states like Florida in 2008 and 2012 perceived as a more influential position on the calendar. 

² Puerto Rico has a larger delegation and may actually prove interesting in this context should Republicans on the island opt into the primary again in 2016.

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Three

Future Changes to the Rules

Having set the baseline of 2016 delegate selection rules for both parties and having examined the pressing divides between those -- Democratic and Republican -- baselines, FHQ will now turn its sights in part three of this series on the possibility of change and what shape those changes may take.

[NOTE: Some of what follows relies on the reader being familiar with the discussions in the first two parts to this series of posts.]

The question of change to the national party rules guiding the 2016 delegate selection process in two competitive presidential nomination races is first dependent on a couple of things. The first is rules-based: Do each of the parties have the ability to alter their respective rules? The second is one of timing: When can rules changes be made?

As we have already described in some detail the rules that came out of the 2012 Republican National Convention in Tampa, FHQ will start there. Obviously, no major changes came out of the RNC winter meetings in Charlotte in January. But FHQ does not know that there was any widespread expectation of altering the rules at that meeting anyway. Rule 12 of the 2012 Rules of the Republican Party -- the rules that will govern the 2016 process -- give the RNC the latitude to make amendments to the rules between conventions; something that did not happen before the 2012 cycle. Again, as FHQ highlighted in the previous post, the bar is pretty high for changing the rules (a majority vote on the Rules Committee and a three-quarters vote among the full RNC membership). Whether the rules change or not, we can say that it takes the full RNC to make any changes which means that said changes will only occur at the regular meetings of the RNC. The group meets at least three times a year in accordance with Rule 8 and we furthermore know that the deadline for making changes is September 30, 2014. We can surmise for that that there are approximately four or five more RNC meetings before that time.

The DNC set up is similar, though there is less guidance in the party's bylaws about what constitutes a winning coalition on any amendment before either the Rules and Bylaws Committee or the full Democratic National Committee. [One would assume a simple majority is sufficient.] The DNC does meet at least two times a year according to Article II, Section 7 of the party bylaws.

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Opportunities for change aside, the groundwork was laid in Charlotte to potentially make changes to the Republican rules at the spring meetings this week in Los Angeles. What that entails is a more difficult question to answer. Here also there are two matters to consider.

First, the Growth and Opportunity Project report has been released in the time since the RNC winter meeting. Now, as FHQ mentioned in reaction to the report, the provisions on the presidential nomination process contained deep in the document amounted to some rather sweeping changes to the delegate selection process. These are long-term and potentially controversial/divisive changes. And while there may be some discussion of the G.O.P. report during a lengthy Rules Committee meeting on the agenda for this afternoon, the debate and actual changes -- should any emerge from this gathering -- are likely to center on other matters.¹

What other matters? Well...

The second consideration, and one that was deeply embedded in the groundwork laid for the LA meeting in January in Charlotte was about the rules handed down from the Tampa convention. FHQ does not think it will come as any surprise to those who either closely followed the 2012 Republican presidential primary process or the convention in Tampa (or both) that there were factions within the party did not like how the process had been conducted in the primaries (and caucuses) or how the future rules were crafted at the convention itself. The Paul faction -- part of which has gained some institutional footing within the RNC -- remains rather agitated over both.

But that faction remains just that: a faction. And it is not a majority faction within the Rules Committee or the RNC as a whole. Yet, the discontent over the rules that emerged from Tampa was something that stretched beyond just the Paul-aligned faction of delegates (and now RNC members). What that group seeks is a sort of retrogression to the rules package that was agreed to by the Rules Committee in meetings the week prior to the Tampa convention but ultimately altered by folks aligned with the Romney campaign. The face of those changes -- changes that were perceived as having centralized power over the nomination rules in the establishment wing of the party² -- was Romney lawyer and DC national committeeman, Ben Ginsberg. And the ongoing effort to revert the rules to what they were prior to Tampa, as best voiced by Virginia national committeeman Morton Blackwell, has been called an effort to "de-Ginsberg" the rules.

Factoring in both of the above considerations creates a push and pull effect on the rules in their current form. The Growth and Opportunity Project report pushes for broader changes to the rules, well beyond where they stand now, while the de-Ginsberging effort would pull the rules back to basically what they were during the 2012 cycle. Now, FHQ should note that the latter is more of a micro-, inside baseball sort of battle (The fight is not necessarily small nor does it lack controversy or philosophical scope.³) while the former is more macro; a sweeping and potentially new philosophical approach to the nomination process that would entail and almost fundamental rewriting of the rules.

This push and pull does have an impact on the ways in and pace with which change is likely to occur at future RNC meetings. In the context of the meeting in LA this week, it means that the changes are likely to occur along the de-Ginsberg axis rather than on the Growth and Opportunity Project report axis. However, that movement (likelihood of change) is somewhat limited. Rule 12 allows amendments to rules 1-11 and 13-25, but none of the mostly convention-specific rules that are higher in number than 25. That means that the changes to Rule 40 would/could not be included in any amendments.⁴ But it also means that the delegate allocation and binding rules (and penalties) are on the table. Two things viewed negatively there are the Rule 16.A change that forces delegates to observe their binding during the nomination roll call or be forced to resign their position and the may/shall discrepancy (see part one)  in Rule 16.B.2 that seemingly eliminated the proportionality requirement established for the 2012 cycle.⁵

Those are not inconsequential changes, but they are the items that are likely to change (if any change is to occur) coming out of the ongoing RNC spring meeting.⁶

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Thus far, FHQ has focused almost entirely on the Republican side of the equation. As has been mentioned previously, that is a function of the RNC actually having made some efforts in the area of 2016 rules. The Democrats have yet to begin their process and will not until later in the summer (2013) when the Rules and Bylaws Committee convenes. As such, the DNC is in a kind of "wait and see" mode. They are waiting to see what comes of the RNC process -- in the way of incremental or sweeping changes -- before making any definitive moves about the rules of their own 2016 process. FHQ mentioned in part two that there were no pressing issues -- no overt desire for any fundamental reform to the 2012 process -- that emerged from the RBC meeting following President Obama's inauguration. The expectation for future change to the Democratic Party delegate selection rules is almost entirely dependent upon what happens with the Republican process of reform. The DNC is currently in the position of reacting or adapting to any changes that come from the RNC.

While the Growth and Opportunity Project report recommends a series of rather big changes, many of them, as FHQ has pointed out, are not possible without Democratic Party buy-in. In other words, there cannot or will not be unilateral and significant change to the process without both parties on if not the same page, then at least in the same chapter. And even then it is difficult because of state party and state governmental interests in the process out of the national parties' control. Incremental change like those called for in Blackwell's de-Ginsberged rules and reaction/adaptation is more likely than G.O.P. report-type alterations to the rules.

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¹ FHQ would link to it, but it seems to have disappeared from the RNC website. When it was still up, the draft agenda showed a 1-5 or 6pm (Pacific) meeting of the Rules Committee.

² See particularly the changes to Rule 40 (discussion in footnote here) but also the addition of Rule 12 (allows changes to be made outside of the convention) and Rule 16 (concerning delegate binding and allocation).

³ To say that the de-Ginsberging effort is not based on philosophical concerns is to suggest that a mobilized, grassroots part of the Republican Party is not seemingly against a more establishment part of the party. These are bottom-up versus top-down approaches, respectively.

⁴ The Rule 40 change in Tampa raised the bar for candidates to be placed into nomination at the convention from controlling five state delegations to eight delegations.

⁵ For a better idea of what is at stake in these de-Ginsberg proposals, here is a marked up/edited version of the current rules with de-Ginsberged substitutes. In addition to the Rule 16 changes, this motion also includes the removal of the Rule 17 loophole discussed in part two that would potentially invite some states to move into a last Tuesday in February primary or caucus (something that would conflict with Democratic Party rules regarding the calendar).

⁶ The other noteworthy discussion will be over Rule 12 itself. There is an open question as to how Rule 12 should be interpreted. At question is the amendment process. FHQ has discussed the thresholds for passing measures through the Rules Committee and then the full RNC, but there is some question as to whether amendments raised at one point could be amended at another. In particular, there is no guidance in the rules about whether an amendment that has passed the Rules Committee can be amended at the RNC stage of its consideration. See Matthew Hurtt's diary at RedState containing excerpts from an email correspondence from Morton Blackwell to RNC Chairman Reince Priebus for more.

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Two

With members of the Republican National Committee descending upon Los Angeles this week for the party's spring meeting, the opportunity presents itself to revisit the current state of the rules that will ultimately govern the 2016 presidential nomination process.

Having established a baseline set of Republican delegate selection rules for the 2016 presidential election cycle in part one, FHQ will layer in the Democratic Party process and save our prospective look at the potential for future rules changes for a subsequent follow up post. It may also be helpful to look into the collective implications of the rules on both sides as they stand now. FHQ has spoken with some of the principals in both parties over the course of 2013, so the intent here is to be as concrete as possible without giving into the temptation of speculating. That said, FHQ would be remiss if it did not add the caveat that the rules are not set in stone on either side and will not be until the summer of 2014. In other words, there is going to be both intra- and interparty work on the rules and with that some give and take (read: rules changes) between now and then.

This post will focus more on the interparty dynamics and save the intra-party discussion for later.¹

If one were to take the baseline set of Republican rules detailed in part one of this series and compare it to the only set of rules available on the Democratic side -- the rules utilized during the 2012 process² -- there are some notable and consequential discrepancies that may affect not only the progression of the primary process in 2016, but the rules-making process as well.

Delegate Allocation:
As was pointed out in part one of this series of posts, there is currently a change embedded in the RNC rules for 2016 relative to 2012 in regard to the allocation of delegates. There is now a suggestion instead of a requirement that states (in some way) proportionally allocate delegates if they hold contests prior to April 1. This is a language issue within Rule 16 that the RNC is very likely to alter. However, this is largely an RNC issue. The Democrats have discussed allowing late states to hold winner-take-all contests as a means of speeding up an already-decided nomination, but the proportionality requirement for all states has held to this point. If the Democratic process is all proportional and the RNC allows some winner-take-all contests, then as many have discussed in the past, the Republican process could wrap up earlier if calendar and candidate/campaign dynamics are the same across the two parties' contests. That, though, is a large assumption. All of those factors -- delegate allocation requirements, the calendar and candidate/campaign dynamics -- interactively affect how any given nomination race progresses.

The bottom line is that this is not and would represent any new divergence between the two national parties' sets of delegate selection rules regardless of the RNC reinstating the proportionality requirement used in 2012.

Calendar:
Though both parties informally coordinated the basic structure of a primary calendar for the 2012 cycle, there is some break in that at this point in the 2016 cycle. That is not to suggest that there has been some sort of a divorce between the bipartisan group of rules-making principals who kept the lines of communication open with respect to the creation of the 2012 rules. However, there was a rules change coming out of Tampa that is somewhat consequential in a comparative light across the two parties' sets of rules.

FHQ will circle back to a broader discussion of the penalties in a moment, but the interparty divergence on the calendar is based on an intra-party discrepancy between the Republican guidelines in Rule 16 and penalties in Rule 17. In short, Rule 16 allows only Iowa, New Hampshire, Nevada and South Carolina to hold contests prior to March 1 (or one month before the next earliest contest). Yet Rule 17 does not penalize a state for holding a contest -- so long as it provides a proportional element in its method of delegate allocation -- on or after the final Tuesday in February.

As was mentioned in part one, this would provide states like Arizona and Michigan -- already scheduled for the last Tuesday in February according to state law -- with some cover. It provides a landing place for states that would like to hold early contests but potentially penalizes them based on the proportionality requirement penalty. [Yes there is a discrepancy between the "requirement" in Rule 16 and the penalty in Rule 17 here as well.] The states that have been willing to take the 50% delegation penalty for violating the rules on timing in the past -- Arizona, Florida and Michigan -- have also utilized a winner-take-all method of allocation. Under the current rules and penalties, all three could hold contests as early as February 23, 2016 and only lose 50% of their delegation, assuming no changes are made to the delegate allocation rules at the state level. That is a price each was willing to pay in 2012.

This does create a potential problem for the Democratic Rules and Bylaws Committee. As the rules stood during 2012, no state other than Iowa, New Hampshire, Nevada and South Carolina could hold a contest prior to the first Tuesday in March. If Arizona, Florida and Michigan all decide to move into that moderate, 50% penalty area of the calendar -- avoiding the superpenalty associate with going before the last Tuesday in February -- that means that those states would be subject to penalties on the Democratic side as well. The complicating factor and the saving grace here from the states' (Democratic) perspective is that Republicans control the decision on where the primaries in all three states end up. The complication is that Republicans could shift the contests in those states with no real recourse from state-level Democrats (either in the state parties or state governments). However, the Democrats in those states could petition the Rules and Bylaws Committee for a waiver for this very reason as long as some effort had been made by Democrats in the state to create changes that would bring the state into compliance with the Democratic Party rules (see the recently introduced bill in the Florida legislature).

Waivers aside, the question remains: Would the DNC really want a calendar that protected the carve-out states but has three medium-to-large states on their heels? A better question may be whether the DNC could do something about that anyway. One answer to the latter issue is to move up by one week (to the final Tuesday in February) the earliest date that non-carve-outs could hold contests. Of course, that has the potential of inadvertently inviting Democratic-controlled states to move up to that point on the calendar. In turn, that could put Republicans in the same position the Democrats now face: having to deal with states petitioning the party for a waiver. Additionally, if Arizona, Florida and Michigan are already positioned at that point on the calendar, the RNC would have two classes of states: the three aforementioned states penalized because they continue a history or winner-take-all allocation and a possible unpenalized group of states which have gained waivers.

This seemingly small change really does highlight the importance of some form or fashion of coordination between the two parties on their calendar rules and penalties. That one week window creates the potential for a messy situation between the national parties themselves, but the national parties and proactive states as well. This is an area where something is likely to give before both sets of delegate selection rules are finalized.

Penalties:
The mindsets of the two parties where penalties for rules violations are concerned are completely different. The RNC has arrived at a point where they as a party want penalties with teeth. Compliance has proven difficult in the absence of meaningful penalties. That is why there is now a 50% penalty for violating the proportionality requirement (assuming it is reinstated) and a superpenalty, knocking states delegations down to 12 delegates, for states that would violate the last Tuesday in February threshold. There is nothing similar on the Democratic side. There, there is a 50% penalty for violating the rules on timing and an additional penalty on candidates' delegates (should they campaign in a rogue state), but nothing more. That did not prove effective in deterring either Florida or Michigan in 2008 (though one could argue we have not seen the subsequent move from Florida and Michigan on the Democratic side).

Regardless, the Democratic Party approach is different. The teeth -- actually carrying through with the penalties at the convention as the RNC does -- is not something with which the DNC concerns itself. In the eyes of those on the Rules and Bylaws Committee, the penalty is effective in that it affects the candidate accrual of delegates during the process. By extension, by the time the nomination process reaches the convention, the decision has already been made and there is no need to penalize states and/or individual delegates. The obvious counter to this is what was witnessed in early February in 2012. Non-binding caucuses (Colorado, Maine and Minnesota) and primaries (Missouri) all received attention from the candidates and media despite there being no delegates at stake.

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These two sets of rules do not and will not be carbon copies of each other, but there is the potential need for some coordinating action between the two parties on the rules, particularly those dealing with the calendar and to a lesser extent the penalties for violations. That action -- potential changes to the baseline rules -- is where FHQ will next turn its focus.

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¹ The one intra-party note to add in this context is that the Democratic National Committee rules-making process will look different in 2016 than it has during any other cycle in the post-reform era. The one seemingly consequential decision -- and it is more a functional change than a substantive one -- that was made when the DNC convened in Washington the same week as President Obama's second inauguration was that the Rules and Bylaws Committee would handle the recommendation phase of the rules-making process in-house. Traditionally, a commission has been created to examine the rules in the context of the previous cycle(s) and compile a list of recommendations for rules changes. For the 2016 cycle there will be no commission like the Democratic Change Commission following the 2008 cycle.

From FHQ's perspective, this signals a couple of things:
1) On some level, the decision on the part of the Rules and Bylaws Committee to forego the commission step of the process is indicative of some consensus behind the existing rules. But...
2) It is also a nod to the reality of the overall process across both national parties. Removing the commission in some ways centralizes the power to craft the rules in the RBC. FHQ says "in some ways" because the RBC has never been in a position of obligation relative to any of the commissions that have existed over the years. The RBC never had/has to act on the recommendations made. But by removing the commission and considering changes in-house, the RBC is theoretically better able to adapt to any changes the RNC makes to its process. The other positive is that this saves the DNC from the needless creation of a body that would examine, compare and make recommendations for rules changes based on a potential moving target on the Republican side. Recommendations are worthless if they are based on in some way an outdated reality in the Republican rules.

² This is an obviously flawed comparison. The 2012 Democratic Party rules being carried over to 2016 is entirely dependent upon 1) there being a desire among the members of the Rules and Bylaws Committee to alter the rules and 2) what exactly the RNC changes about its current rules. Barring wholesale changes to the RNC rules (i.e.: unilaterally instituting a regional primary system), the expectation based on past precedent is that there would be only minor changes to the rules from the previous cycle.

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