Dems Do Little to Alter 2016 Delegate Selection Rules

The Democratic National Committee's Rules and Bylaws Committee (RBC) on Friday raced through the twenty rules -- and subrules -- that govern the party's delegate selection process. In the process of review, the RBC changed little about the rules.

The big story -- if one can call it big -- was that the national party signaled the earliest points on the 2016 presidential primary calendar that the first four carve-out states can hold contests. Functionally however, this revelation was little more than a carryover of the 2012 rules. In 2012, Rule 11.A granted Iowa the ability to hold its caucuses 29 days before the first Tuesday in March.¹ New Hampshire, as has become the custom, was allowed to hold its primary 21 days prior to that point -- eight days after Iowa. That is or will be no different in 2016. Iowa can go as early as February 1 -- 29 days before the first Tuesday in March (March 1) -- and New Hampshire can follow on February 9 -- 21 days before March 1.

What the RBC did change was how Nevada and South Carolina are treated by Rule 11. The 2012 rule actually conflicted with New Hampshire state law in that it allowed Nevada Democrats to hold their caucuses 17 days before the first Tuesday in March. That allowed only a four day cushion between New Hampshire and Nevada. The statute in the Granite state requires a seven day cushion between the first in the nation New Hampshire primary and any other similar contest following it. The DNC rule for 2012 contradicted that.

Rule 11 no longer contains that "oversight".² In a nod to the reality that both Nevada and South Carolina prefer Saturday delegate selection events, the DNC Rules and Bylaws Committee has given the green light to Nevada caucuses 10 days prior to March 1 -- and 11 days after New Hampshire -- and a South Carolina Democratic primary 3 days prior to that first Tuesday in March.

That latter rule regarding the position of the South Carolina primary likely will ensure that the Democratic and Republican primaries in the Palmetto state will once again be held on different dates. That will definitely be the case should March 1 end up being a de facto southern or southeastern primary day. South Carolina Republicans -- like the situation in New Hampshire -- require (by custom, not law) a seven day window between the South Carolina primary and the next earliest southern contest. The SCGOP also prefers a Saturday contest, meaning that a February 20 date is likely (assuming no other calendar shenanigans). That would put the South Carolina Republican primary on the same date as the Nevada Democratic caucuses and perhaps even the Republican caucuses in the Silver state. That sequence of contests is similar to the positioning on the 2008 calendar.

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The primary dates section of the rules brought some minor changes, then, but that really was not the real surprise to come out of the brief Rules and Bylaws Committee meeting in Washington, DC on Friday. The real surprise -- to FHQ anyway -- was that there was no change and no discussion of changing the penalties associated with rules violations. As recently as last fall there was some discussion -- outside of the RBC -- of the party considering a stiffer penalty on rogue primary states (those that violate the timing rules). At that time, the word was that the RBC would perhaps consider a penalty similar to the RNC super penalty. That may have happened, but did not in the context of one of the Rules and Bylaws Committee public meetings. In any event, Rule 20 was left unchanged for 2016 as compared to its 2012 version. That means a few things:

1. States that violate the timing rules for scheduling their delegate selection events will be docked 50% of their delegates. That is the very same penalty that has proven ineffective with a select few agitators over the last couple of presidential election cycles. But…
2. The Rules and Bylaws Committee still reserves the right to increase the penalty (Rule 20.C.5) or through its recommendation and an affirmative vote from the Democratic National Committee's Executive Committee to conduct a compliant party-run contest (Rule 21.C).
3. There is some lack of uniformity between the RNC penalties and the DNC penalties. However, that difference is more a reflection of the RNC more explicitly laying out the exact consequences of violation and the DNC allowing itself a bit more leeway in assessing an appropriate penalty should the rules be broken. 

This last point has been a point of emphasis for FHQ since 2012. We have consistently argued that rules coordination between the national parties was necessary but not sufficient to keeping states in line. It also requires some coordination on the penalties as well. The rules across parties are not the same, but with this fall back option, the DNC has now likely given (along with the extant RNC rules) 2016 the best chance yet to be the cycle in which the national parties get something close to their ideal primary calendar.

It is a fighting chance, but now that the national parties have moved, the ball is in the states' court. Whether the states will comply is a question for 2015. It will be interesting.

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¹ The latter reference point date was the earliest date on which non-carve-out states could conduct the first step of their delegate selection process without penalty from the national parties.

² This is another win for the New Hampshire primary in terms of assists its calendar position has gotten from the national parties. The RNC has already indicated that all four carve-out states have the ability to move to a spot on the calendar up to a month before the next earliest contest without incurring a penalty from the party. In 2012, the RNC only allowed the carve-outs to shift to dates on or after February 1 without penalty (see Rule 15(b)(1)).


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Missouri Senate Bill on Presidential Primary Passes Committee Stage in State House

The Missouri Senate bill that would move the Show Me state presidential primary from February to March has gotten the thumbs up from both the House Committee on Elections and the House Rules Committee.

A bill with the exact same language has already passed the House and is currently being considered in the state Senate. SB 892 passed the Senate with only a handful of dissenting votes earlier this month. This clears the way for the bill to be considered on the floor of the state House, first through an amendment process and through a final vote.

The legislation would shift Missouri back into compliance with the national party rules on delegate selection. This follows a cycle when Missouri Republicans had to allocate delegates via a later [March] caucus/convention process while the February -- state-funded -- primary was a mere beauty contest. Missouri Democrats received a waiver from the DNC to continue with (an uncompetitive) presidential primary on the February date.

The Missouri General Assembly will be in session until May 16.

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Utah Presidential Primary in 2016, Prologue or Epilogue

FHQ is late to this but I did want to point readers in the direction of a nice summary piece on the recent effort in Utah to move the presidential primary in the state online and ahead of the carve-out states.

More interesting, perhaps, is the brief bit on where legislators or the parties in Utah may turn next, now that the move to challenge Iowa and New Hampshire has passed:

Utah Republicans are working with their counterparts in Idaho, Montana, Wyoming, Colorado, New Mexico and Arizona to put together a regional primary that would be held between March 15 and April 1, Hough said.

This is noteworthy on the heels of news that there is an effort underway among a series of southern states to have a southern regional primary at the beginning of March. But such a western regional primary would be susceptible to some of the same issues that would face a southern primary. Mostly, that it is potentially difficult to coordinate. Still, it looks at though Utah is unlikely to wait until June to conduct its presidential primary in 2016. The rest? We'll have to wait until 2015 to see about them.

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Missouri Senate Passes Bill Moving Presidential Primary to March

Earlier, the Missouri Senate voted 25-7 to pass SB 892. This is the bill that would shift the Show Me state presidential primary from February to March and into compliance with national party delegate selection rules.¹

The Senate bill now moves to the House where an identical bill has already been passed. Each chamber is dealing with the other's (exact same) version of the legislation. Having already passed, each should move smoothly through the respective chambers.

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Additional background:
The description of the bill on the Senate floor for a procedural vote on April 9 by its sponsor, Senator Will Kraus (R-8th) describes the reasoning behind the proposed March position on the calendar. A June date was considered but rejected as too late.² And the original April proposal faced opposition from elections administrators because of logistical issues (e.g.: combining partisan and non-partisan races on one ballot, requiring two different machines). Not mentioned was the fact that this particular date in March will preserve the winner-take-all delegate allocation method Missouri Republicans have traditionally used. New RNC rules prohibit winner-take-all allocation of delegates before that point on the calendar.

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UPDATE:
The 25-7 vote split largely on party lines. Seven of the nine Democrats in the Senate opposed the measure. The majority Republicans were unified in support of moving the primary from February to March.

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¹ The specific move is from the first Tuesday after the first Monday in February to the first Tuesday after the second Monday in March. That would be a move from February 6 to March 15 for the 2016 cycle.

² Presumably a June presidential primary would have been consolidated with primaries for state and local office as well. Separate legislation is seeking to shift the current August primary for state and local offices up to June.

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Nebraska Bill on Binding Delegates Based on Primary or Caucus Results Signed into Law

When FHQ discussed Nebraska bill LB 1048 back in February, talk was that an amendment would be added to the legislation. That amendment would have had the effect of shifting the presidential primary in the Cornhusker state out of May and to an earlier point on the presidential primary calendar. Yet, that particular amendment never came.

However, LB 1048 unanimously passed the Nebraska Unicam late last week and was signed into law by Governor Dave Heinemann (R) on Wednesday, April 9.  

From February, here's the impact of the bill for the presidential nomination process in Nebraska in 2016:

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.

At its core, the new law requires that the state parties bind at least 80% of their delegates to candidates based on either the state-funded presidential primary election or presumably the first step of a party-funded caucus process (the precinct caucuses). Nebraska Democrats are already compliant, having done this the last two cycles through a caucuses/convention process.

The above changes to the law will be more consequential to Republican Conrnhuskers. The primary has always been used as an advisory beauty contest and the beginning stages of the caucus process had no direct bearing on the selection of delegates. A certain number of delegates for a particular candidate did not have to be elected in a precinct based on the percentage of the vote that candidate received there. The only restrictions were 1) that potential delegates to the national convention had to file with the state and party (with a candidate preference) just after the primary and 2) only credentialed delegates to the state convention were eligible.

There was, however, no binding mechanism. Now there is. And it was consistent with the DNC delegate selection rules and with the new binding requirement that the RNC has added to its rules for 2016.

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Missouri Presidential Primary Bill Clears Procedural Hurdle in Senate

The Missouri state Senate voted on April 8 to finalize -- perfect -- its version of a bill to move the Show Me state presidential primary from February to March. The bill that is identical to a previously passed House bill will now be considered one final time on the floor of the Senate before a recorded vote on passage.

The House version is currently being considered in the state Senate. Both bills would shift the Missouri presidential primary into March and into compliance with the RNC rules (and likely DNC rules) on delegate selection for the 2016 cycle.

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A Step Closer to a March Presidential Primary in Missouri

The Missouri state Senate Financial and Governmental Organizations and Elections Committee on March 26 gave the green light to a substitute version of a bill that would shift the Show Me state presidential primary out of February, into compliance with national party rules. More importantly, the timing discrepancy that existed between the House version of the bill (HB1902) and the Senate version (SB 892) was reconciled by the committee amendments to the Senate bill.

Now, both the Senate and House bills call for moving the primary from the first Tuesday after the first Monday in February to the first Tuesday after the second Tuesday in March. That would place the Missouri presidential primary on March 15, 2016. The move would not only bring the state back into compliance with the timing rules put in place by both national parties, but would also allow Missouri Republicans to protect their traditional winner-take-all allocation of delegates. March 15 is the first date in 2016 on which Republican state parties can allocate delegates in a winner-take-all fashion according to the RNC delegate selection rules.

The Senate bill now heads to the floor for consideration next week while the House version (...has passed the House and...) has been referred to and will be considered by the same Senate committee that just granted the exact same language -- in the Senate version -- a "Do Pass" designation.

While this is a positive move in terms of moving the primary into compliance with the national party rules, it should be noted that legislation has reached this stage before and failed in the Missouri General Assembly. Floor debates and inter-chamber divides have derailed similar legislation several times since 2011.

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Bill to Clarify Funding of South Carolina Presidential Primary Passes State House

The South Carolina state House on March 26 unanimously passed HB 4732. The record will show that the legislation does little more than remove references to the 2008 presidential election cycle in the current statute, but the story is slightly more complicated than that.

It was for that cycle -- 2008 -- that South Carolina opted to change its to-that-point traditional practice of state parties directly funding their own delegate selection events and settling the rules (including the scheduling of the primary itself) for conducting the contests. The rules-making function remained with the state parties, but legislation ahead of the 2008 nomination process shifted the funding from the state parties to the South Carolina State Elections Commission (and the counties).¹ When 2012 rolled around, the clause in the statute pertaining to the funding of the presidential primary -- specifically the 2008 and only the 2008 primary -- left questions about which governmental entity would fund the election. A disconnect developed between the State Elections Commission and the counties.

This 2014 legislation seeks to clarify that issue. Technically, the state parties collect the filing fees from the candidates and transmit the funds to the State Elections Commission to conduct the election. Any surplus (filing fees minus election expenditure) stays with the state to be used for similar purposes in future elections.

This bill still has to be considered and passed by the South Carolina state Senate and signed by the governor. There seems to be broad support, however. In any event, this discrepancy did not affect South Carolina's ability to conduct the first in the South primary in 2012 and would not in 2016 even if this legislation dies at some point in the legislative process.

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¹ Though state parties have the final say on (the conditions for) how they will select delegates to the national convention, when the funding mechanism moves from the state parties to the state government, the state government typically takes on the date-setting function as well. State parties can opt out of that set up and fund their own separate primary or caucuses, but few give up what amounts to "free money". South Carolina is an exception to that rule. When the funding crossed over to state governmental hands, the date-setting role stayed with the parties. That was a very obvious nod to the position the Palmetto state plays in the presidential nomination process; preserving its first in the South status.

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Utah's Stake on the First in the Nation Presidential Primary a Casualty on Final Legislative Day

Memories will fade [quickly] and all that most will remember is that the efforts in Utah these past few weeks to challenge New Hampshire and Iowa at the head of the presidential primary calendar died on the last day of the 2014 legislative session. The record, however, indicates a richer story.

Again, as FHQ described earlier, the idea in Utah was novel. The state would not only have granted the lieutenant governor the authority to set the date of the primary -- assuming legislative funding -- but it would have required them to set the primary before Iowa, New Hampshire or any other state. The first part isn't unique. New Hampshire's secretary of state has had that ability since 1976, the Georgia General Assembly granted similar power to its secretary of state in 2011 and Arizona gives the governor the ability to set the primary for a date earlier than called for by state law. The intent in each is to empower an individual with the task rather than a partisan body susceptible to gridlock, and thus, slow to react. Only New Hampshire state law requires that individual -- the secretary of state -- with ensuring that the contest is first in the nation. But the Utah bill mimicked that provision, requiring also that the lieutenant governor set the presidential primary in the Beehive state first on the calendar.

The Utah bill, then, addressed the pace of response problem that most states face (and New Hampshire does not). Additionally however, the legislation also struck at the other advantage New Hampshire has in the process: the pace of implementation. The rationale of the secretary of state office in the Granite state -- or part of it anyway -- has always been that other states may challenge or vie for first in the nation status, but we can wait them out with an ability to deploy the election administrative troops in a shorter period of time than anyone else.

Utah's innovation? By shifting the voting online, there would be no concern about New Hampshire waiting the state out. Utah could logistically respond/adapt accordingly and quickly.¹

That vision passed the Utah House on Monday and was expedited along with a raft of other legislation in the state Senate on Wednesday. But the Thursday final session day did not see the bill that would threaten the carve-out states, not to mention defy the national party rules, simply die as the clock ran out.

No, instead, the Senate floor sponsor, Senator Curtis Bramble (R-16th, Utah, Wasatch), provided yet another rather forward-thinking twist. In this case, forward thinking meant anticipatory maneuver with the thought of future showdowns with New Hampshire (a la Nevada Republicans in 2011) or the national committee of either party. The proposed, Senate-amended bill sought to provide Utah in that scenario with some additional leverage. It called for the same actions -- giving date-setting authority to the lieutenant governor and shifting to online voting -- but added an "unless" rider. In other words, Utah would be first unless certain conditions were met. Those conditions were that Utah would be or would challenge for first unless at least two other western states joined Utah in the type of Western States Presidential Primary called for in state law (but which has never fully come to fruition as intended).

How is that leverage?

Assuming such a bill had passed and was signed into law, Utah first could threaten to or maybe even actually set a date in, say, 2015 in order to force New Hampshire's and the national parties' hands. The threat likely would have been enough to get the national parties involved in if not pressuring other western states, then at least inquiring about their openness to moving their contests to a [less problematic/early or compliant] date concurrent with the Utah primary.

The bottom line intent there is simple: Utah wants to be first to gain attention. If we can't be first, then we can still get attention so long as there is at least subregional primary of neighboring western states along with Arizona, Colorado and/or Nevada, for instance. One of the unintended consequences of these types of attempted negotiations is that, legislatively, states rarely provide themselves with the options necessary to get even some of what they want if the first option -- going first on the calendar in this case -- falls through. Often, states are forced to go the all-or-nothing route and can end up worse off (especially if a legislature is still required to set the date but is not in session).

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This was, then, a new wrinkle to the proceedings. As the day went on yesterday, though, and time ran out on a Utah state legislature with a full agenda, the typical sine die day negotiations to get a number of things passed (including the primary bill) commenced. This horse trading produced a last ditch Senate proposal that included concessions of the most controversial portion of bill; the requirement that Utah be first in the nation. Left in the bill were the provisions shifting the date-setting authority from the legislature to the lieutenant governor and for online voting. Also gone was the "unless" rider to coax a real Western State Presidential Primary out of the process. While the language was less provocative, the lieutenant governor still would have had the ability to threaten the front of the calendar. The office just would not have had the requirement to do so under state law.

Yet, in the end, even that did not pass muster in the behind the scenes wrangling in the state Senate. The bill never came up for a vote, time ran out and it was returned to the House; dead.

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There a few notes that should be made here before closing.

1. Just because this issue is dead in 2014 does not mean that we will not see this return in Utah during the 2015 state legislative session.
2. Relatedly, these sorts of (provocative) ideas are now out on the open market. Other states may consider them and strategically augment them in 2015.
3. This notion of consideration and strategic negotiation sounds a lot like the sort of bartering that Governor Jan Brewer (R-AZ) did with the Arizona primary in 2011. Now, she did not ultimately threaten Iowa and New Hampshire, but she did win a Republican presidential debate out of it. ...all while still maintaining a non-compliant primary. Whether this sort of action will become the norm for aspiring rogue states remains to be seen. But Utah is evidence that the idea is spreading, even if on a limited basis for now.

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¹ Now, the question still remains whether candidates and campaigns would throw the known of New Hampshire by the wayside for an unknown process with unknown consequences in Utah. FHQ has its doubts.

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Missouri House Passes Bill to Move Presidential Primary to March

During its morning session today, the Missouri House of Representatives passed the committee substitute to HB 1902. After clearing a procedural hurdle Tuesday -- with no additional amendments tacked on -- and receiving a thumbs up from the Committee on Fiscal Review today, the legislation was brought to the floor and passed by an announced margin of 97-48 along party lines in the chamber.

The bill, which would shift the Show Me state presidential primary from February to March, now moves to the Senate where a similar piece of legislation -- SB 892 -- is still in committee. It should be noted that both bills initially called for moving the date of the Missouri presidential primary from the first Tuesday after the first Monday in February to the the first Tuesday after the first Monday in April. The state Senate bill is still in that form. The state House bill is not. At the committee stage, that April date was revised to the first Tuesday after the second Monday in March.

That would be March 15 during the 2016 cycle. That is also the first date on which states may hold true winner-take-all contests under the Republican delegate selection rules. The change from April to March was presumably made to line the Missouri primary -- a traditionally winner-take-all contest -- with the change in the Republican rules shifting the proportionality window into March. It remains to be seen whether the Missouri Senate will act on its own bill or shunt it to the side to deal with the House bill.

As FHQ has described, inter-chamber disputes have derailed similar presidential primary moves in the past.

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