From Utah, a Bill to Potentially Disrupt the 2016 Presidential Primary Calendar

Buckle up. This is an interesting one.

With just a little more than a week left in the Utah state legislative session, the state House is considering a bill that would shake up elections in the state. No, FHQ is not talking about the legislation that would alter the caucuses/convention process that provided so much drama during the Lee-Bennett Republican Senate nomination race. Instead, HB 410, (sponsored by Rep. Jon Cox (R-58th, Ephraim)), if passed and signed into law, could potentially overturn the applecart that is the carefully constructed 2016 presidential primary calendar.

How?

First, FHQ should note that everything here -- whether the bill passes or not -- is contingent on the Utah legislature appropriating funds for the presidential primary election; something the body did not do for 2012. But let's assume for the a moment that the legislative body in the Beehive state provides funds in the 2016 budget -- which it will have to pass during the winter session in 2015 -- for the 2016 presidential primary. How does this bill change that?

In arguably the most provocative change, HB 410 would require the Utah lieutenant governor to schedule the Utah "Western States Presidential Primary" on a date "that is earlier than the scheduled date for any meeting, caucus, primary, vote, or other method used in any other state or territory of the United States that constitutes the first determining stage of selecting a presidential nominee."¹ Compounding that is an additional provision in the bill empowering the Utah state legislature with the ability to declare by resolution that the presidential primary vote be conducted as part of an online/electronic voting pilot program.

Structurally, then, this bill has to not only pass both chambers of the Utah state legislature, but it has to be signed into law by the governor. Then, assuming all of that occurs, the state legislature has to separately appropriate funds for the election and also pass a resolution qualifying the presidential primary election for the online voting pilot program. That may or may not be a high bar, but at a minimum, that is an awful lot of legislative process. And it is all sequential. If there is an impasse at any point in that chain, everything falls apart. Keep in mind also that Utah has very short legislative sessions. That further reduces the probability of all of this coming together prior to 2016.

This remains a possibility and nothing more.

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But assuming all the above benchmarks are hit, what impact would that/Utah have on the 2016 presidential primary calendar?

The main impact would be that the Utah primary would be first in the nation. The lieutenant governor would be tasked by law with scheduling the Western States Presidential Primary for a date earlier than any other contest; Iowa and New Hampshire included. We have played this game of chicken before, however. Remember that bill in Arizona last year that anchored the primary in the Grand Canyon state to the date of the caucuses in Iowa? This sort of action would likely trigger a game of chicken that advantages Iowa and New Hampshire. In the Arizona case, as long as Iowa could outlast the drop dead point at which Arizona had to set a date -- a point that would provide the state with enough lead time to prepare to conduct an election -- then they (Iowa) win.²

...and leave Arizona in the lurch in terms of when to actually set the date.

In other words, as long as Iowa and New Hampshire can wait out a state attempting to encroach on their early turf, they can retain their positions at the front of the queue. And because none of the (failed) proposals to anchor primaries or caucuses to either Iowa and/or New Hampshire or before them have contingencies in place in the very likely event that the two earliest states wait them out, those states are even further disadvantaged. There would be no guidance from state law as to when the primary should be scheduled.

Yet, the Utah proposal offers a new twist: online voting. If part of if not the main problem of successfully challenging Iowa's and New Hampshire's positions is that they have a competitive advantage in being able to more quickly organize caucuses or a primary, respectively, then why not reduce those costs? The Utah proposal in HB 410 does that on two fronts. First, online voting is cheaper. A separate presidential primary would have cost Utah up to $3 million in 2012. According to the fiscal note tied to HB 410, the infrastructure for secure online voting would cost $1.6 million up front. One would imagine that maintenance would also be required in subsequent years, but would/could be less than the original start up costs. That reduces costs relative to the flat -- yet increasing with inflation -- budget appropriation for an election with physical polling locations.

Second, the costs associated with attempting to play the brinksmanship game with Iowa and New Hampshire would be reduced to almost nil. It is much easier to move around the date of an online election than it is an election that requires reserving polling locations, organizing and paying poll workers, and reimbursing counties and/or local political units.

This is not unprecedented in presidential primary elections. The Arizona Democratic Party utilized online voting in its 2000 presidential primary/caucuses. That was more an effort to try the format than challenge the earliest states. The voting took place in the first full week of March, during a window from Tuesday through Friday before the caucuses on Saturday, March 11. That was well after Iowa and New Hampshire that year. It should also be noted that Arizona Democrats did not retain the online voting procedure for the 2004 cycle.

But the potential Utah of 2016 is not Arizona in 2000. This plan has the effect of turning the screws on Iowa and New Hampshire in a way that the post-reform system has not witnessed. Sure, there have been challenges over the years, but none of them have been successful. And no states have employed a method that streamlines the process enough to quickly adapt to anything that Iowa and New Hampshire might do. Utah may not be there. Certainly the proposed system of online voting is adaptive, but the decision-making process is fraught with the potential for legislative roadblocks. The decision on the date of the primary is not centralized as it is in New Hampshire and Georgia (with the secretary of state).

Still, we're assuming that this actually comes to pass. If that is the case, then there is one more factor to layer into this.

What about the national party delegate selection rules? There is a new super penalty (in the Republican National Committee rules) that is supposed to deter states from queue jumping like this, isn't there? There is, but that rule may have a problem. By reducing states' delegations to just 12 delegates if they have more than 30 total delegates and 9 delegates if they have fewer than 30 total, penalized states may end up with the same reduced total in the end, but different rates of reduction. Stated differently, big states take a larger hit than smaller and medium states do. A reduction of 99 delegates to 12 is a lot different than 40 delegates to 12 delegates. Florida is the 99 and Utah is the 40. Is a 70% penalty really all that much different to Utah than the 50% penalty that existed in 2012? Maybe, maybe not. Regardless, states on the smaller side of the median number of total delegates have an incentive to potentially gamble on this and that is exactly what is at stake in this Utah discussion.

It is an open question and at least one Utah legislator is of the opinion that the 70% penalty is not steep enough to deter him from introducing this bill. Time is running out in the Utah legislative session, but even if this plan goes nowhere, it may be a blueprint for future challenges to Iowa and New Hampshire.

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Hat tip to Bryan Schott at Utah Policy for sending information on this bill FHQ's way.

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¹ This moniker is a relic of an effort by Utah and a number of other mostly Rocky Mountain states to hold a concurrent regional presidential primary in 2000. The tag has been a holdover in the state law referring to presidential primary since then. The primary is not conditioned on other states also holding delegate selection events on the same day as Utah.

² The Arizona bill was bottled up in committee, but would have set a 90 buffer for elections administrators between when the date of the election was set and the election itself. Iowa Republicans set the date of their 2008 caucuses with under 80 days of time between that decision and the caucuses. Iowa Democrats left only about 65 days between those two points in 2008. Both Iowa Democrats and Republicans left similar windows in 2012. New Hampshire did even better in whittling down that window. Secretary of State Bill Gardner (NH-D) allow 69 days of preparation in 2012, but just 48 days in 2008.

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Iowa. Still a Winnowing Contest. ...to Clinton and everyone else.

The news stories about the 2016 Iowa Democratic caucuses are less deja vu these days than they are like the constant, repetitive backgrounds in cartoon chase scenes. The pattern is pretty clear at this point:

1. Some combination of Hillary Clinton lost Iowa in 2008 and/or frontrunners often "stumble" there. 
2. Iowa is terrible at picking nominees/presidents.
3. A new poll is released showing Clinton up on any and all Democratic challengers.
4. Wash, rinse, repeat. 

Presumably, this will continue until Iowa in 2016. Maybe the cycle will begin anew for 2020 shortly thereafter.

Mark Z. Baraback has the latest fuel for the fire that powers this perpetual motion machine; cautioning a prospective Clinton campaign about what might lie ahead in the Hawkeye state.  The problem is that there is little caution in there. The problem from a political science perspective is that we're dealing with a small N problem. There are so few observations -- competitive nomination races in the post-reform era (1972 and after) -- that it is difficult to make generalizations in a sea of idiosyncratic presidential election cycles we can chalk up to the dynamics/fundamentals of any given year.

The point is that it is relatively easy to find examples of frontrunners losing (relative to expectations) in Iowa. [That game can be played with New Hampshire too!] Within that group there are two subgroups: 1) those frontrunners who "lose" Iowa and go on to win the nomination and 2) those frontrunners who "lose" in Iowa and lose the nomination. The latter group is fairly limited and often leads to the conclusion in #2 above. [More on that momentarily] There are, though, other groups of cycles that often get short shrift in this discussion. Most people remember recounts in 2000, but understandably forget the two (mostly) cakewalk nomination races that year. Many also fail to include the favorite (regional/state) son phenomenon that hit Iowa in the 1988-1992 period when Gephardt, Dole and Harkin won the caucuses.

So, there are exceptions. Regardless, frontrunners are typically successful in their quests for nominations no matter if you quantify that -- being a frontrunner -- as a mixture of poll position and funds raised (Mayer) or as a combination of those two and endorsements from party elites/insiders (Cohen, et al).

[And keep in mind that no one in Iowa wants to say that Hillary Clinton is inevitable. As Richard Skinner has noted in response to Peter Hamby's story from Iowa, it hurts their bottom line -- encouraging interest in the (competitive) Iowa caucuses. It is same there as it is in newsrooms where writing "Clinton is inevitable" stories gets old quite fast.]

The logical follow up is to ask why Iowa is first when it is so bad a choosing nominees/presidents. But please don't do that. That's just keeping Fred and Barney running past that doorway and potted plant. Iowa just does not derail front-running candidates with any level of regularity. It tends to winnow the field, leaving the determinative job to some subsequent state or series of state contests. That is the cycle we should be paying attention to.

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Missouri Once Again Initiates an Attempt at Presidential Primary Calendar Compliance

For the fourth consecutive year now efforts are underway in the Missouri General Assembly to move the Show Me state presidential primary from February into a compliant position later on the primary calendar. The state legislature was actually closest to shifting the primary back in 2011 when a bill designed to move the presidential primary back to March passed both chambers but was vetoed by Governor Jay Nixon (D) for reasons unrelated to the primary. Since that point in mid-2011, the legislature has been stuck in place or seemingly moving in reverse on the matter of the presidential primary scheduling. Efforts during a special session in the late summer of 2011 and during the regular sessions of 2012 and 2013 failed to gain any traction.

Will the fourth time be the charm?

Considering none of the primary-specific bills even got out of committee -- much less had hearings -- in 2012 and 2013, this current second session of the 97th General Assembly is heading in the right direction. There are two bills -- one in the House and one in the Senate -- that would shift back the date of the Missouri presidential primary. Both HB 1902 and SB 892 originally called for pushing back the primary date from the first Tuesday after the first Monday in February to the first Tuesday after the first Monday in April. The House bill -- introduced last week by Representative Tony Dugger (R-141, Wright, Webster) -- has already made it through the Committee on Elections in an amended form on a 10-0 vote with a "Do Pass" designation. The committee substitute now heading to the House Committee on Rules now differs from the Senate version in that the landing spot for the primary on the calendar is no longer in April. Instead, the Committee on Elections passed a version that would shift the presidential primary to the second Tuesday after the first Tuesday in March. That would be March 15 in the 2016 presidential election cycle.

There are a couple of things to note about these developments in the Show Me state:
1) To the extent the efforts to move the presidential primary have been derailed in the time since late 2011, it has been a function of a difference of opinion across chambers in the Missouri General Assembly. The House and Senate were in agreement about the move to March during the regular session in 2011, but that was the point of the last agreement on this issue between the chambers. Now that the House and Senate versions of these two related presidential primary bills differ, one has to wonder whether or if recent history will repeat itself.

2) One thing that might gird against the notion of inter-chamber division this time is that the change in the committee substitute in the House is clearly a nod to the recent RNC rules changes. Missouri Republicans, before the caucuses diversion in 2012, have traditionally allocated delegates in a winner-take-all manner. The move to April was presumably designed to protect that. But now that the RNC has narrowed its proportionality window a bit, there is no need to move the Missouri primary back to April. March 15 is where winner-take-all allocation is first allowed on the 2016 primary calendar; right where Missouri would be under HB 1902.

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An SEC Primary in 2016? Not so fast… (Part I)

Last week at the National Association of Secretaries of State meeting in Washington, Georgia secretary of state, Brian Kemp (R), rolled out a proposal for the alignment of southern presidential primaries on the first Tuesday in March in 2016. And Secretary Kemp has gotten some "positive feedback" on the plan from others in Alabama, Arkansas, Louisiana and Mississippi.¹

That's all well and good, but let's have a bit of a look under the hood on this thing. In the first part, FHQ will look at those states named above that have expressed an interest in the possibility of a southeastern regional primary.

The date that Secretary Kemp has proposed for what has been affectionately called the SEC primary is March 1. That is the first date on which states other than the four carve-outs -- Iowa, New Hampshire, Nevada and South Carolina -- can hold delegate selection events under the actual (RNC) or expected (DNC) rules. In other words, that may be an attractive landing point for any number of states (see Super Tuesday on February 5, 2008). As of now, March 1 already has a southern flavor. Oklahoma, Tennessee, Texas and Virginia are scheduled for that date according to current state laws in each. Adding Georgia to the mix gives the South the clearest and strongest regional voice on that date. That would make five out of the eight states southern with Massachusetts and Vermont serving as only a token regional counterweight.

But what is the likelihood that others (from the South) join those four (or five if one counts Georgia) on March 1?

Georgia is unique in that the state legislature ceded the authority to set the date of the Peach state presidential primary to the secretary of state in 2011. That makes Georgia like New Hampshire in that regard. Basically what that transfer of power means is that Georgia, like New Hampshire, is better able to move its presidential primary around without the potential for gridlock or just inaction on the part of a state legislature. Getting Georgia to March 1, then, is an easier task than it will be for other states.

And there will be something of a dilemma in the other states to whom that Secretary Kemp has reached out. Alabama, Arkansas, Louisiana and Mississippi will have push a date change through their legislatures. Secretaries of state in each of those states can (attempt to) initiate the legislative process on such moves, but that is no guarantee that there will actually be any shifting. The reason there is no guarantee is that such a proposal raises questions about the expected utility of a move. Alabama, Louisiana and Mississippi are already in March.

What difference does it make to move up a week (as is the case in Alabama and Mississippi) or two-ish (for Louisiana's now customary Saturday primary)?

In Alabama and Mississippi, the expected cost or benefit of a move may or may not be financial. Both are already in March, so the trade-off is more a matter of going with a larger group of southern states and risking getting lost in the shuffle or sticking with a smaller subregional primary on a date a week later when they may collectively and effectively counterbalance the Ohio primary on the same date. That is a tougher question to answer when both dates -- the first and second Tuesday in March -- are potentially attractive landing points on the calendar for a number of states. Getting lost in the shuffle may be a foregone conclusion when it is all said and done and the calendar is finalized in late 2015.

The gamble is similar in Louisiana in that the internal debate is a function of choosing between a date where they may have a greater share of the spotlight later on (if the nomination races are still going in late March) and a date when many other southern states hold their contests; a proposition the nets the Pelican state some regional clout but not necessarily direct attention from the candidates. The situation in Louisiana is complicated by the fact that the state has utilized a Saturday primary the last two cycles. Part of that is designed to reserve a spot on the presidential primary stage where Louisiana stands alone or with other smaller and/or caucuses states. The spotlight favors them.

Legislators in Arkansas face a slightly different calculus. First of all, the new RNC rules almost force Arkansas to consider moving up. Currently scheduled for the next to last Tuesday in May, the Arkansas primary falls at a point on the calendar after the cutoff for when primaries will need to be held to accommodate a late June or early to mid-July Republican convention. But that only adds to the classic late state dilemma: move everything up (presidential primary, state and local primaries and all) or create a separate presidential primary that is easier to move around (but also costs the state additional election funds)? Arkansas has twice gone the latter route (1988 and 2008) and twice has gotten essentially no bang for its buck, the extra expenditure got the state nothing in the way of advertising dollars or candidate attention. How ready and willing is Arkansas going to be to repeat that pattern? The alternative -- moving a consolidated set of primaries to an earlier date -- has its own pitfalls. Such a move impacts state legislators tasked with making the move in the first place. Moving a consolidated primary up lengthens a state legislators general election campaign. It also potentially means that the primary campaign overlaps with the state legislative sessions which means the primary phase campaigning will be happening during the state legislative session. Both potentially make legislators' decisions that much more difficult.

Despite officials being open to the idea of a regional primary in the southeast, that does not necessarily mean that it will be enough to overcome the questions that will be raised during state legislative efforts to move primary dates for 2016 around. Those questions represent potential roadblocks in the legislative process that could derail movement to earlier positions on the primary calendar.

Of course, that is not all that complicates the potential effectiveness of this proposal or its intended implementation. FHQ will examine the other issues attendant to this proposal that may pop up in the intervening period between now and 2016 in part two.

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¹ Below is the press release from Secretary Kemp's office yesterday:

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May Presidential Primary Could Be on the Move in Nebraska

Add Nebraska to the list of states reacting -- directly or indirectly -- to the recent Republican National Committee (delegate selection) rules changes.

As it stands now, Nebraska is slated to have a presidential preference primary election on the first Tuesday after the second Monday in May. That would be May 10, 2016. There is, however, a movement afoot to add an amendment to a broader elections bill before the state legislature that would shift that date up by a month into April. From the vantage point of early 2014, that may be a shrewd decision on at least one front: The first Tuesday after the second Monday in April, 2016 is in the middle of an otherwise vacant portion of the the 2016 presidential primary calendar. If state actors, then, are seeking to maximize the impact Nebraska voters may have on the nominations processes in 2016, moving to a date on which Nebraska is the only game in town, may work to their advantage.¹

Of course, there are potential roadblocks to this.

Moving the primary up, triggers the classic dilemma for the late (presidential primary) state -- like Nebraska -- with concurrent primaries for the presidential nomination among a host of state and local offices. Move everything up or create and fund a separate and earlier presidential primary? As the article from the Omaha World Herald indicates, the former affects state legislators' primaries while the latter may be viewed as less than cost-effective. Moving everything to April extends the general election campaign for state legislators by a month, meaning more work for the very people making this change. And creating a separate presidential primary does not seem to be on the table.

Nebraska Democrats also seem to have indicated that they are going to continue operating outside of the state-funded primary option. Since 2008, Nebraska Democrats have selected delegates through a party-funded caucuses/convention format that allows them to begin their process earlier than is possible with the May primary funded by the state.

But it is on that particular point where this gets even more complicated. The bill (LB 1048) that will supposedly contain the amendment provision that would move up the date of the primary also sets the parameters around other parts of the delegate selection process in the Cornhusker state:

1. State parties have to submit delegate selection plans to the Nebraska Secretary of State by December 1 in the year prior to the presidential election.
2. Those plans should allocate at least 80% of the total number of delegates to candidates based on the results of a primary or caucuses.
3. The plans must also specify how or if those delegates would be bound to particular candidates.
4. Finally, those plans must also set a minimum threshold of 15% in the primary for a candidate to eligible for any delegates whether allocated proportionally or in a winner-take-all manner.

All of this mostly aligns with how both Nebraska Democrats and Republicans allocated delegates in 2012. The one exception is that the Republican primary process has always been advisory to the caucus/convention process.² LB 1048 seeks to end the advisory nature of the primary, eliminating the provisions concerning the state conventions from the current law and adding a binding mechanism to any primary or caucuses utilized by the parties.

What may look like a good idea on paper -- moving the date up -- may not look as good once partisans (in the nonpartisan, unicameral Nebraska state legislature) get a closer look at what some of the other provisions in the bill will do to the delegate selection process. There are a number of items that may not sit well with various groups.

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¹ It is also true that that position may not prove advantageous at all. Such an incremental shift may still come after the point at which the nomination has been decided, depending on how other states move around and how the preceding contests have allocated delegates to the various candidates.

² Truth be told, there is a Democratic primary election as well on that May primary ballot, but Democrats abandoned it for the 2008 cycle, meaning that the primary vote in both the major party presidential primaries was next to meaningless.

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Oregon Republicans are Rethinking May Presidential Primary Date

The new 2016 delegate selection rules from the RNC have the Oregon presidential primary right on the new 45 day line between when primaries can be held and when the Republican National Convention may be held in 2016. That has Republicans considering their options.

They may find moving the primary tough with Democrats controlling all the levers of power in the state government.

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With RNC Rules Revised, the Ball is Now in the Democrats' Court

Now that the Republican National Committee has seemingly settled on the rules that will govern the selection of delegates in the 2016 presidential nomination race, it is time for the Democratic National Committee to get to work.

The history of the rules give and take between the two national parties in the post-reform era is an interesting one, and this latest iteration is more active, perhaps, than things have been for more than a decade. After all, it was the Democratic Party that fundamentally reformed the manner in which it selected delegates and determined presidential nominations following the messy 1968 Democratic National Convention in Chicago. But four years later, in 1972, only the Democrats had a competitive presidential nomination race. The changes brought about by the McGovern-Fraser Commission had little to no effect on the Republican process that renominated President Nixon. Four years later, however, the Republican Party was dragged into the ad hoc and still developing -- from the states' perspectives -- post-reform nomination process.¹ The Republican Party was largely on the sidelines again as Democratic-controlled state governments in the South shifted up the dates of their delegate selection events in 1988 in concert as a means of exerting maximum influence over the Democratic nomination process.²

[Now, the 1988 dynamics were not the result of a concerted national party effort to entice southern states into earlier slots on the primary calendar, but it was a move within the existing Democratic Party rules that had a fairly significant impact on the Republican race that year. George H. W. Bush was able to use a sweep of the contests in the southern states to take a commanding lead in the race for the Republican nomination that year.]

It was the DNC or Democrats, then, that had proven more progressive in altering the rules by which not only their nominees were chosen, but the Republican nominees as well. But that relationship did not and has not stayed the same over time. The Republican Party, for instance, allowed states to hold February contests well before the Democrats followed suit, allowing similar activity in 2004. The 1996 and 2000 cycles saw Democratic state parties forced into a caucus/convention systems in lieu of too-early and non-compliant primary dates that Republicans were able to take advantage of (but Democratic states were not due to DNC delegate selection rules). Take notice of the number of contests that Republicans had between New Hampshire and Super Tuesday in 2000. The Gore-Bradley contest had a long layoff between those two endpoints.

The RNC also flirted with a more fundamental reshaping of the rules governing the delegate selection process in both 2000 and 2008. The Bush campaign quashed the Delaware Plan at the 2000 Republican National Convention. Then, the McCain campaign basically followed that same script in 2008, shooting down the Ohio Plan that the RNC had given the thumbs up to earlier in the year.

The unique thing about both the 2012 cycle and to some extent the 2016 cycle is that both the DNC and RNC are informally coordinating their processes. The national parties are not moving in lockstep, but they are at the very least communicating about a set of shared problems across their respective processes. This was clearer to see in 2012 when the two parties agreed on the basic structure of the primary calendar.³ And while those best laid plans were ultimately dashed by a handful of rogue states, the failure did point to a glaring deficiency in the Democratic and Republican rules: penalties. Just as 2008 had done to the Democrats, 2012 highlighted the fact that the RNC did not have an adequate penalty in place to deter states from moving into non-compliant points on the calendar.

With the rules it passed last week, the RNC addressed the penalty issue by solidifying a more severe penalty on states that might violate the party's rules on (primary/caucus) timing. The party also moved to shift the back end of the calendar as well to accommodate an earlier convention. Both moves affect the Democratic Party and what the DNC Rules and Bylaws Committee may think about when it meets at the end of February to more officially begin hammering out the DNC delegate selection rules for 2016.

Both the DNC and RNC are on the same page where the front end of the calendar is concerned. The parties have voiced a preference for a process that begins with a limited number of small states kicking the process off in February and the remaining states falling somewhere after the first Tuesday in March.⁴ But the back end of the calendar is not in synch across parties given the changes the RNC just instituted. That may or may not matter to the Democratic Party. It is not entirely clear what the DNC reaction to an earlier Republican convention will be. If the party is enticed into having a similarly early convention, then the Democrats may also move to push late states a little earlier on the calendar. [But the Democrats may not want to do that.]

That is one matter the DNC Rules and Bylaws Committee will have to consider. Another is the penalties point. There was a discrepancy between the DNC and RNC sanctions on rogue states in 2008 and 2012, but not one that amounted to much difference. Despite the fact that candidate delegate totals were directly penalized (if a Democratic candidate campaigned in a rogue state), that did not significantly affect the calculus on the state-level. This was complicated in 2008 by partisan control of state governments as well. Republican-controlled Florida, for example, moved into violation of the DNC rules (with Democratic state legislative votes). Even the Rules and Bylaws Committee move completely stripping Florida of all of its delegates did little other than point out how little control one national party has when a state government is controlled by the opposition party.

That does also highlight the problem of states (governments or parties) being able to exploit the differences across the two national parties. That is exactly why the RNC last week made an allowance for late states -- those that may have contests that fall in the window 45 days before the convention -- controlled by the Democrats. But if there is a significant amount of variation between the two parties' sanctions on rogue states, it does potentially provide the states with another point of exploitation.

Now that the super penalty is set in stone, the Democrats may consider following suit. In fact, FHQ has been told that such an item -- a more severe penalty -- will be on the table when the Rules and Bylaws Committee convenes to begin hashing out the Democratic delegate selection rules. That said, there may still remain an issue where enforcement is concerned. There is a philosophical difference about enforcement that exists across the parties. The RNC has taken a hardline approach, enforcing its penalties directly at the convention. Break the rules, lose the delegates. The DNC approach is less severe and may hamper even a more severe penalty if enacted.

Assume for a moment that the Rules and Bylaws Committee recommends to the DNC a penalty similar to the RNC super penalty. While the RNC would strip a state delegation down to twelve or fewer delegates (depending on the size of the state) at the convention, the DNC would not.⁵ The DNC views this as a penalty for the primary phase of the campaign. The party sees the damage as having been done if the penalty merely affects the delegate count in real time during primary season. The assumption is that by the end of the process, the party will have settled on and lined up behind one candidate and the delegate count is a non-issue at the convention and reducing delegations only serves to hurt those who are working hardest on the state level. In truth, history is on their side despite the quadrennial rush of brokered convention stories in the news. Still, such a view does potentially lend itself to festering conflict between two presidential aspirants. The type that would not necessarily bode well for the party overall.⁶ The delegate issue would not be closed until the convention if it is unsettled.

But again, the invisible primary phase the 2016 cycle is currently in and the primary season itself typically resolve those matters. Regardless, there are a couple of fairly significant matters the RNC has given the DNC to think about now that it has settled on its delegate selection rules. Such is and has been the give and take between the two national parties over the presidential nomination process over time.

Now it is the DNC's turn.

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¹ The short version of this is that the Democrats had for 1972 made the votes in state-level contests -- whether primaries or caucuses -- binding on the delegates who would attend the national convention. Rather than determinative decisions being made at the convention, the action shifted to the newly empowered delegate selection process. That initiated a period of learning for the candidates, states (state parties and/or state governments) and the national parties themselves.

² Even 1988 was the product of several cycles of movement. Alabama, Florida and Georgia had concurrent primaries in early March 1980, and four years later in 1984, a handful of late primary states adopted a caucus/convention format and moved into various points in March (see Arkansas, Kentucky, Mississippi and Oklahoma).

³ This is mostly due to the fact that the Democrats did not have a stake in the nomination season. The party was nominating a sitting president with no serious opposition.

⁴ FHQ will have more in clarification on this March point in a future post.

⁵ Now granted, the Republican nominee and his or her campaign has some say in this as well. That campaign will control the convention and the delegates ultimately seated, but the RNC has enforced those penalties at the convention the last two cycles. They got creative with it in 2008, allowing all the delegates to be seated but with half the voting privileges. In 2012, the affected delegations were reduced by half as called for by the rules.

⁶ Yes, this may be a complete dead end point if Hillary Clinton both decides to run for and coasts to the Democratic nomination. But bear with me on the point about the difference in philosophy.

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Snapshots of Reactions to RNC Rules Changes from Around the Country

FHQ's inbox has filled up with news on the RNC rules changes over the last few days. Here are a few of the state-level reactions to the alterations:

California needs and will have an automatic waiver from the RNC if the Golden state primary stays in June.

Michigan looks to be staring down some stiff penalties without moving its February primary.

The gamble in Alabama is whether the state will matter on the second Tuesday in March. The Alabama Republican Party thinks it will.

As soon as North Carolina anchored its primary to South Carolina's in August, the talk shifted to moving it back. North Carolina Republican National Committeeman, Dave Lewis, says that is likely to happen in May.

South Carolina's safe.

FHQ will add more reactions as they are available.

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The Myth of Republican Proportionality Change

Before FHQ digs into this, go read James Hohmann's piece at Politico on the 2016 delegate selection rules changes the RNC enacted this week at its winter meeting in Washington.¹ Then check out Marc Ambinder's reaction to the new rules at The Week.

...then come back and allow me to be nitpicky for a while.

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Regular FHQ readers will recall that I spent a great deal of time and space pushing back against the nature of change that the introduction of the proportionality rules caused before and during the race for the 2012 Republican presidential nomination. John Sides and I even showed that it was the calendar changes and not the proportionality requirement that was the culprit -- if a rules-based change was to be blamed -- that drew the process out. And while many continue to harp on the "rebrand" the Republican Party has undertaken with regard to issues, most forget that one of the findings of the Growth and Opportunity Project was that impact of delegate allocation rules (ie: proportionality) is dynamics-dependent. In other words, every nomination race is different and the ways in which those delegate allocation rules affect the process are different because of it.

That said, I think a number of analyses are overstating the changes the Republicans put in place this week. And much of it has to do with the supposedly new proportionality requirements. Hohmann mentions this "new" rule that allows a (proportional) state (before March 15) to award all of its delegates to any candidate that clears the 50% threshold statewide. Additionally, Ambinder hints at the 20% of the vote that states can now require candidates to hit in order to receive any delegates.

Both changes sound like they could have some impact on any race; 2016 or otherwise. But they aren't new. In fact, both thresholds are the exact same as they were in 2012. The only real change is that both have been officially added to the broader list of rules. That wasn't the case in 2012 when the office of the RNC legal counsel provided a memo to states and other ne'er do wells about compliance with the new requirement. That memo was the guide for compliance.

Section III deals with the proportionality requirement and parts iv and v set the thresholds:

iv. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached below which a candidate may receive no delegates, provided such threshold is no higher than 20%. 

v. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached above which the candidate may receive all the delegates, provided such threshold is no lower than 50%.

Again, this is the 2012 set up and it is no different than what the RNC officially added to the rules this time around. There was no widespread rush on the state level to up the threshold described in part iv above in 2012 (see Alabama as an example) and states like Idaho and Mississippi were among the handful of states that experimented or retained rules that allowed for a winner-take-all allocation of delegates if one candidate received a majority of the statewide vote. In fact, as I pointed out in 2011 and 2012, most states took the road of least resistance in reaction to the rules changes put in place for 2012. That is, states only changed what they had to. Where they complied with the RNC rules, they left well enough alone. This was especially true in states where the minimum threshold for gaining any delegates is set lower than 20% by state law (see New Hampshire and North Carolina for examples)

Now, another cycle of this proportionality requirement being in place may mean that states (state parties and/or state governments) have had additional time to see the true nature of the possibilities. States may have learned some in other words. But that has not really been what has been witnessed over time. Are there changes that take place that seek to exploit -- for the state's gain -- the new rules? Sure, but more often than not, they end up being exception rather than rule.

Will these "new changes" have a pronounced effect? Well, we'll see. FHQ is guessing no, since they aren't really changes for 2016 anyway. In the meantime, let's all be careful about what has changed with these rules and what it may or may not mean for the 2016 Republican presidential nomination race.

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One last thing:
Hohmann's conversation with North Dakota national committeeman, Curly Haugland is somewhat misleading. Haugland bemoaned the fact that the RNC did not take up proposed changes to correct the increased Rule 40 requirement on the number of state delegations a candidate has to control in order to have his or her name placed in nomination at the convention. This was a contentious part of the rules discussion in Tampa. Paul-aligned delegates were upset that that number of states was raised from five to eight.

The little secret here is that that rule is untouchable as are all the other rules that deal specifically with the next national convention (Rules 26-42). Rule 12, which was added in Tampa, allows for amendments to be made between conventions to Rules 1-11 and 13-25, but all the other rules -- Rule 40 included -- are off limits (to amendments) until the 2016 convention. That eight state requirement, then, could not be changed at the winter meeting of the RNC and cannot be changed until the 2016 convention.

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¹ This one is probably the best summary of the changes I've read.

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RNC Passes 2016 Delegate Selection Rules Proposals

The full RNC voted early this afternoon to pass a series of changes to the national party's delegate selection rules; the rules that will govern the process by which the party selects its next presidential nominee. Neither the Rules Committee process nor the full RNC consideration today were all that contentious. In both meetings where the changes were considered -- and ultimately passed -- there were just a handful of dissenting votes.

In other words, there was some consensus within the RNC membership behind the changes that the Rules subcommittee devised and submitted for consideration at this winter meeting.

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FHQ will certainly have a more robust analysis about the exact changes made in the coming week(s), but for now some reactions to, well, the reactions to these alterations.

A few of the talking points emerging in reaction to the changes are nothing new. They tend to fall in at least a couple of categories. On the one hand, there is skepticism that it will ever work in their intended fashion; in this case, to rein in not only a chaotic calendar formation process, but to tweak the overall nomination process. On the other, there are comments about the national parties fighting the last war; mistakenly making changes to account for problems from the last cycle.

I don't know. Those observations certainly aren't wrong, but in both cases, miss the all-too-important nuance. The "last war" line strikes me as off base in the narrow context of the relationship between the national parties and the states (whether state parties and/or state governments).¹ Of course the national parties are fighting the last war when they assemble to devise a delegate selection plan for an upcoming presidential nomination cycle. They move forward with the uncertainty-addled information they have. This is, and has been since the 1972 cycle, an iterative and sequential process. The national parties make rules and the states (and candidates) react to those rules -- some in compliance, but some, and usually only a handful, not. Wash, rinse repeat.

Only, it really is not that simple. There is no way of testing these rules changes ahead of their implementation. The only laboratory is either the experience from previous cycles or the combination of the invisible primary and primary season for the next cycle in real time. A national party does not know and often cannot (adequately) rectify midstream (see Florida and Michigan in 2008) problems that may come up along the way. That is the sequential part of the process. The national parties have to have their rules in place so that the states can react to them, to plan for the upcoming election. Only, some states don't play by the rules, or haven't in a select set of cases over the 2008 and 2012 cycles.

And that is where the probably-warranted skepticism comes in to play. State actors may behave seemingly rationally; moving a primary up and out of compliance with national party rules under the assumption that delegate sanctions will not be enforced. That line of reasoning was used numerous times in 2012 during the formation of the Republican presidential primary calendar. But for the second consecutive cycle, the RNC actually did enforce its penalties. And this is where the national parties have become more sophisticated in their responses to rogue activity. The combination of enforcement and an incremental closing of loopholes that states have exploited in the past have made it harder to states to misbehave.

FHQ spent a lot of time in 2011 and 2012 talking about the work both parties had done to coordinate the basic structure of a presidential primary calendar. We spent still more time talking about the fact that a lack of meaningful and coordinated penalties. One of the missed opportunities in 2012 was the fact that both parties had seen the ineffectiveness of the 50% delegate reduction penalty on states. It worked for most, but some were willing to take that type of hit to their delegation in order to impact the nomination process.

States may not be similarly willing to take a much deeper cut at their delegations in 2016. Nine (in the case of small states) or twelve (for big states) total delegates is a significant reduction. But you know what is missing from a lot of the reaction pieces penned in the wake of the RNC rules changes? The Democratic Party.

Oh, sure, there are certainly some light comparative mentions -- usually having to do with the respective fields of candidates and she who must not be named -- but nothing that comes close to identifying the impact the DNC's eventual delegate selection rules will have on whether the RNC will be successful in its endeavor. On the surface, that's a strange concept. It almost sounds like the DNC would be helping the RNC. [That would never happen!] But that isn't the case. This is more a matter of shared interests -- common nuisances -- among the two national parties. If the DNC ups its penalties, for example, it would go a long way toward determining whether the RNC will get the type of primary calendar it is angling for.

But if you want potential unintended consequences, look to the potential for cross-party differences over some of the Rule 20-based changes the RNC just made. These are the rules pushing up the end of the primary process. Now sure, the RNC made allowances for waivers for Democratically-controlled states that may not be able to comply with those rules (depending on what the DNC does).

That's not all of the unintended consequences either, but FHQ will save that for another time.

The bottom line for now is that the national parties are doing exactly what one would expect them to do. While they are still susceptible to rogue states, the national parties have gotten more sophisticated in their responses to them. The traditionally-exploited loopholes have largely been closed. Want rogue states in 2016? Look at the usual suspects FHQ has been mentioning for months. It won't be Florida. It'll be Arizona, Michigan, Missouri and North Carolina.

And start looking to the end of the calendar too. We may see some creative rogue states in 2016. The reactions the curbs on late May and early June contests may provide for some unconventional "rogue" activity.

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¹ In the broader context of the overarching delegate selection process, there may be something to this. Again FHQ is reminded of John Sununu's comments on this at the National Association of Secretaries of State meeting in January 2013. I'm paraphrasing here, but he mentioned that national parties often tread this line of managing or controlling the delegate selection process. He said that when parties attempt to control the process rather than manage it, they often get themselves into some form of trouble. Whether what the RNC has done this week falls into the control or manage category likely is in the eye of the beholder.

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