Republican Proportionality Rules Changes for 2016, Part One

These discussions never really go away, but with candidates officially announcing and 2016 drawing closer, the salience of the delegate selection rules has begun its quiet rise. Already, FHQ has seen snippets of comments and reporting out there building up the potential for rules changes -- breaking with the typical rhythms of the nomination process -- to increase the chaos of the 2016 Republican nomination process.¹ Perhaps they will. Certainly, as the story tends to go, rules changes of any stripe -- big or small -- will cause significant changes in the landscape of a nomination race.

Of course, it is always more nuanced than that. The rules changes are there, sure, but the impact is typically more muted than is often discussed. For 2016, FHQ wants to try and get out ahead of this as much as possible. That way, once primary season hits late next January or early next February, there can be a more informed discussion concerning the rules changes and the actual impact they are having on the Republican race in real time.

My column last week at Crystal Ball set a baseline of sorts, and FHQ dug a little deeper on some of the Republican rules changes for 2016 specific to the Ron-to-Rand Paul delegate maneuvering. Yet, a change by change examination may be more appropriate for our purposes; a primer in some sense.

To start, let's talk proportionality. FHQ will lay out the rules changes in this post and then follow up with an addition two or three posts on potential implications of the changes for 2016.

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The RNC adding a proportionality window was actually a big rules change during the 2012 cycle. No, the change was not large in terms of its impact. The definition of proportionality was sufficiently broad as to bring about only minimal changes to state party delegate selection plans as compared to how those same parties had operated in 2008. States were not lurching from a truly winner-take-all method of allocation to a truly proportional one. Instead, in a great many case, plans that were already hybrid plans -- in between the winner-take-all and proportional extremes on the spectrum -- that were tweaked ever so slightly to meet the requirements of the new rules for March contests.

What made the change "big" was that the Republican National Committee made the change at all. That the RNC voted for the recommendations of the Temporary Delegate Selection Committee, breaking with the national party's traditional hand-off approach to dealing with state delegate selection/allocation processes, was what was significant. Creating a mandate for proportionality in a more or less top-down way rather than leaving those matters up to the states/state parties as had historically been the case is still something that rankles some in the party.

Once such a rules change is introduced, though, the desire or perceived need to tinker with those rules becomes almost inevitable. That is particularly true after a party loses presidential election. Actually, the fun footnote to all of this is that the Romney team made the proportionality requirement optional (the infamous shall/may switch) in the version of the 2016 rules coming out of the Tampa convention. After the former Massachusetts governor had lost the 2012 election, though, the RNC readopted the requirement, trading may for shall in the language of the rule at the 2014 RNC winter meeting.

[Reference: 2016 Republican delegation selection rules]

With the quiet reintroduction of the proportionality requirement came a number of subtle changes to Rule 16(c)(2, 3).² First, the RNC compressed the proportionality window by two weeks. Instead of the allocation in primaries and caucuses having to be proportional in all of March, the 2016 rules condensed that to just the first two weeks of March. That could mean different outcomes coming out of the proportionality period dependent upon how many states actually crowd into the window. If a smaller window yields fewer contests, then the difference is likely to be negligible. If, on the other hand, a month's worth of 2012 contests clusters in that two week opening in 2016, the effect may be larger. Of course, under the 2012 rules with the broad definition of proportionality, this distinction -- a two week or month-long proportionality window -- is largely irrelevant.

However, the party simultaneously tightened the definition of proportionality. The RNC reduced the number of ways in which a state party could proportionalize to meet the requirement. In combination, a smaller (or equivalent) number of primaries and caucuses in the proportionality window in 2016 relative to 2012 plus a stricter definition of proportionality are likely to cancel each other out. As of now, there are 17 states scheduled before March 15 (not counting the four carve-out states) in 2016. Once the Republican caucuses states are added into likely positions in early March, the number of primaries and caucuses in that two week proportionality window will approach if not match the 30 (non-carve-out state) contests held before April 1 during the 2012 cycle.³

To fully understand this, though, we need to take a step back and examine the actual change in the proportionality guidelines from 2012 to 2016. How narrowly has the RNC defined proportionality or more accurately what loopholes has it eliminated? The 2012 proportionality guidance the RNC legal counsel provide states granted states a great deal of latitude in achieving a proportional plan. As FHQ argued in 2011, all a state really had to do was to make the allocation of its at-large delegates proportional. Those delegates were a smaller part of a state's total number of delegates the large a state was (based on how the RNC apportioned delegates to each of the states). There were states like Texas that overreacted and changed to a truly proportional allocation plan,⁴ and states like Ohio that mostly maintained a winner-take-all by congressional district plan, but allocated its small cache of at-large delegates proportionally based on the statewide vote.

But here is what Republican state parties were looking at in 2011  as they were putting together delegate selection plans for 2012⁵:

Proportional allocation basis shall mean that delegates are allocated in proportion to the voting results, in accordance with the following criteria: 

i. Proportional allocation of total delegates based upon the number of statewide votes cast in proportion to the number of statewide votes received by each candidate shall be the default formula for calculating delegate allocation, if no specific language is otherwise provided by a state.  

ii. If total delegate allocation is split between delegates at-large and delegates by congressional district, delegates at-large must be proportionally allocated based upon the total statewide results. 

iii. If total delegate allocation is split between delegates at-large and delegates by congressional district, delegates by congressional district may be allocated as designated by the state based upon the total congressional district results.  

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%.  

vi. Proportional allocation is not required if the delegates either are elected independently on a primary ballot not in accordance with a primary presidential candidate's slate or are not bound at any time to vote for a particular candidate. 

The quick and dirty version of that is states in the 2012 proportionality window had to allocated their delegates proportionally. If the delegation was split between at-large and congressional district delegates, at-large delegates had to be proportionally allocated while states could maintain discretion over the allocation of congressional district delegates. States could further dilute proportionality by creating minimum thresholds for receiving delegates and/or receiving all of the delegates.

The RNC took that and between the convention period in 2012 and August 2014 boiled it down to this for 2016:

(3) Proportional allocation of total delegates as required by Rule 16(c)(2) shall be based upon the number of statewide votes cast or the number of congressional district votes cast in proportion to the number of votes received by each candidate.  

(i) A state may establish by statewide vote or by congressional district 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 twenty percent (20%).  

(ii) A state may establish by statewide vote or by congressional district 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 fifty percent (50%).

Gone in 2016 is the discretion the RNC gave state parties regarding the allocation of their congressional district delegates. Those delegates can no longer be allocated winner-take-all based on the results within the congressional district. In essence more states would have to adopt plans similar to the one Alabama Republicans used in 2012. And like Alabama Republicans did in 2012, 2016 states with contests in the proportionality window can -- CAN -- add a minimum threshold for receiving any delegates and/or receiving all of the delegates (at both the statewide and congressional district level).

This would have the effect of very slightly turning the knob toward the proportional end of the spectrum in 2016 as compared to 2012. That would potentially split the delegates up even more between candidates and perhaps by some small measure slow down the nomination process. Potentially. It could also all be a wash considering that it looks like a smaller or roughly equivalent number of states will hold primaries and caucuses in the smaller 2016 proportionality window as was the case in 2012.

But those thresholds, where the state parties do have some discretion, do offer some interesting layers to the process. FHQ will examine the implications of those in Part Two.


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¹ Yes, this is mostly a Republican thing. With no real competition on the horizon on the Democratic side and no changes of consequence to the Democratic nomination rules, there is far less to talk about as far as the Democrats are concerned.

² FHQ says "quiet" because it was as if the proportionality requirement had never left. Folks at the RNC told FHQ in 2013 that the intention was to keep it in place all along; that "may" would change to "shall" in Rule 16(c)(2):

Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to March 15 in the year in which the national convention is held shall provide for the allocation of delegates on a proportional basis.

³ This 2012 number includes states with primaries or caucuses before March. Florida's "move" to January 31 had the effect of stretching the proportionality window out to include February and March contests. That had a minimal impact because both Florida and Arizona ignored the proportionality requirement and most of the rest of the February delegate selection events were non-binding caucuses (not affected by the requirement).

⁴ That change was made by Texas Republicans before redistricting challenges forced the primary from the first Tuesday in March to the end of May.

⁵ None of this was codified in the actual Rules of the Republican Party. Rather, the RNC legal counsel had to provide guidance concerning what constituted allocation on a "proportional basis". That protocol has changed for the 2016 cycle. The RNC included the proportionality guidelines in the rules regarding the proportionality requirement.

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Idaho Presidential Primary Funding Bill Signed into Law

On Friday, April 10, Idaho Governor Butch Otter (R) signed SB 1178 into law. The legislation appropriates funds for the reestablished but newly separate presidential primary in the Gem state. Governor Otter signed the bill recreating the presidential primary a day earlier.

The $2 million price tag will go toward the March 8 presidential primary. Only Idaho Republicans have opted to use the primary as a means of expressing presidential preference. Democrats in the state have already chosen to maintain the caucuses/convention system the party has traditionally used. Idaho Democrats have selected March 22 as the date of the party's precinct caucuses.

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Legislation Introduced to Move Ohio Presidential Primary Back a Week to March 15

Ohio Representative Mike Dovilla (R-7th, Berea) on Monday, April 13 introduced legislation to move back the presidential primary in the Buckeye state. HB 153 would shift the Ohio presidential primary from the first Tuesday after the first Monday in March to the second Tuesday after the first Monday in March. For 2016, that would mean the difference between a March 8 primary under the current law and a March 15 contest if the law is altered.

This represents a small but potentially significant shift. That one week change means moving out of the proportionality window to a date that allows Ohio Republicans to allocate their national convention delegates in a more winner-take-all fashion. Early reporting on the bill indicates that this is the motivation behind the bill. Yet, FHQ would urge caution on that particular conclusion. That is not a function of the reporting being wrong. Rather, FHQ would point out that Ohio Republicans have typically utilized a winner-take-all by congressional district method of allocation in the past. 2012 was something of an exception when to comply with RNC rules, Ohio Republicans made the small sliver of statewide, at-large delegates proportional while the congressional district delegates were doled out to the winner of each congressional district. The "16 mini-contests" that Darrell Rowland at the Columbus Dispatch mentions (and implies were unique in 2012) have not been an uncommon feature of Ohio Republican delegate allocation. According to the Green Papers, Ohio has been winner-take-all by congressional district since at least 2000. 2012 was the only slight blip in that series of cycles.

But to be even winner-take-all by congressional district as has historically been the case in the Buckeye state, Ohio Republicans will have to have a later presidential primary.

...but just a week later to be compliant.

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Rhode Island Bill Would Move Presidential Primary from April to March

A bill filed on Thursday, April 9 would move the presidential primary in Rhode Island up from the fourth Tuesday in April to the fourth Tuesday in March. HB 6054 was introduced by state House minority leader, Brian C. Newberry (R-48th, New Smithfield). The move would pull Rhode Island out of the calendar position it used in 2012 with Connecticut, Delaware, New York and Pennsylvania to form a mid-Atlantic/northeastern regional primary and schedule it for 2016 alongside the Arizona primary on March 22.

This particulars behind this measure resemble in a number of ways the stalled effort by legislative Republicans in Connecticut to push an earlier primary bill through a Democratic-controlled legislature. If the regional cluster can be replicated in 2016, that means an additional number of delegates will be tacked on to an already small state's delegation to the Democratic National Convention. Republicans are hypothetically more motivated to move contests up in 2016 to participate in an active nomination race while Democrats are content to hold later contests and possibly in regional groupings that in both cases gain delegates.

Tracking...

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Nevada Senate Committee Again Tweaks February Presidential Primary Bill

On Friday, April 10, the Nevada state Senate Committee on Legislative Operations and Elections rescinded its earlier recommendation to the chamber to pass SB 421. Instead, the committee made a technical correction -- changing the date of the proposed primary from the third Tuesday to the last Tuesday in February -- and sent it back out with a "do pass" recommendation.

There are a few reminders about the dynamics around this bill that should be mentioned. First, the bill's sponsor, Senator James Settlemeyer (R-17th, Minden), sits on the committee and helped usher it through despite testimony from the Nevada Republican Party in opposition to the measure. What Settlemeyer may be able to overcome in committee is different than the obstacles he and his bill may face on the floor of the Senate. Secondly, this bill differs meaningfully from the version now active in the Assembly. While the Assembly bill creates a separate presidential primary it makes participation by the state parties optional. If the parties opt in, then a primary date in February is agreed upon and a primary election is conducted. However, if the parties opt instead to select delegates and express presidential preference through a caucuses/convention system, then there is no primary election. The Senate bill makes the primary a requirement, or at least attempts to add some legal muscle to the primary mode of delegate selection in the Silver state.

The Assembly bill is, perhaps, more forward looking: attempting to add the option for the future. The Senate bill, on the other hand, is intended, according to the sponsor, affect the 2016 process in Nevada.

The Assembly version seems the more feasible of the two. That is particularly true since both state parties have already expressed their intention to hold caucuses in 2016.

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On Rand Paul, the Republican Presidential Nomination and Delegate Selection Rules

Jim Rutenberg has a look in today's New York Times Magazine at one advantage the Rand Paul campaign may have in a protracted race for the 2016 Republican presidential nomination: its knowledge of and ability to strategize about the Republican National Committee's intricate delegate selection rules. As Rutenberg describes it in one segment:

The process by which presidential candidates are nominated is, at its most basic level, a race toward a magic number of party delegates — in the Republican Party’s case, 1,235 required to win — amassed state by state and, in some cases, congressional district by congressional district. Getting them depends not only on the speechifying, door-to-door vote-hunting and million-dollar ad buys we associate with campaigning, but also on a bewildering array of procedural minutia: obscure national bylaws that overlay a mind-bending patchwork of local rules that can vary drastically from state to state, some of which award delegates not based on votes received in primary elections but on back-room wrangling at local party conventions and meetings that take place weeks or even months after votes are cast.

FHQ has a few thoughts on this and Rand Paul campaign strategizing in general. First, as Rutenberg points out later in the article, the RNC has tightened its rules since 2012. The objective was to cut down in 2016 on some of (what the national party viewed as) the shenanigans the Ron Paul campaign and its supporters pulled in the last campaign. This affects three areas of the nomination process for the 2016 cycle. First, there are no more non-binding caucuses. Any statewide presidential preference vote -- like a vote at precinct caucuses -- now has to guide the delegate allocation in states like Iowa or Minnesota or Maine (among others).¹ That means that even if there is "back-room wrangling at local party conventions and meetings" later in the course of the caucuses/convention sequence, it will only affect who a delegate is, not to whom that delegate is bound. The preferences expressed in the first, statewide step -- the precinct caucuses -- is the one that guides subsequent steps. While the selection of delegates is still open in district conventions and at the state convention, the allocation part is mostly done after that first step. [FHQ will revisit that "mostly" momentarily.]

To make sure that the binds created during the primary or first step caucuses phase stick, the RNC also altered the process voting on the nomination at the convention. These are the other two ways in which the national party tightened its rules for 2016. First, even if a delegate bound to, say, Mitt Romney preferred Ron Paul, said delegate could not vote for Ron Paul at the convention in 2016. Rule 16(a)(2) directs the secretary of the (national) convention to "faithfully announce and record each delegate's vote in accordance with the delegate's obligation under these rules, state law or state party rules." If a candidate is bound, then, the secretary of the convention will recognize the binding rather than the delegate's preference if there is a conflict. What happens in those precinct caucuses is the guide.

That rules change is further buttressed by the increased threshold a candidate must meet to have his or her name placed in nomination. According to Rule 40, a candidate must in 2016 control delegations from eight states rather than the five that were required in 2012 to be formally nominated.

Together, those three changes makes any "wrangling" less meaningful when it comes to the nomination part of the national convention. Delegates can also affect planks on the platform and other party business, but the nomination is the big ticket item for the convention. And the RNC has closed a number of loopholes.

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FHQ spoke with Rutenberg about this story, and we raised and discussed the change that closed off the non-binding caucuses loophole. One other factor we also chatted about that did not make the article was what would happens when candidates who have won some delegates withdraw from the race. What happens to those delegates? Would they become a set of free agent delegates possibly circumventing the prohibition on non-binding caucuses through a side door? The quick answer is yes in theory. However, there is a bit of nuance to this. Here is where that "mostly" from before reenters the discussion.

The interesting thing is that states and Republican state parties have in some cases been reading that change to the binding rules quite literally. That is why Iowa Republicans were concerned about the Ames Straw Poll. There was some worry that that would qualify as the first, statewide vote and thus delegates would have to be bound based on its results. Other comments from people within state parties have seemingly indicated that the thinking is delegates are bound based on the results of the primary or caucuses period. That there are no exceptions even for the delegates bound to candidates no longer in the race in April, much less at the July convention. In other words, if Carly Fiorina were to win delegates in Iowa but withdrew after the SEC primary on March 1, those Iowa delegates would still be bound to her at the national convention. FHQ does not read the RNC rules that way, and I'm willing to bet that Rand Paul and his campaign are not either. That is particularly true if Fiorina in this example were to release her Iowa delegates. They would become free agent delegate slots.

All of this does seem to open the door to some wild possibilities. On the one hand, non-binding caucuses are out, but on the other 2016 offers this supposedly wide open race for the Republican nomination. That means all those candidates could win some delegates and that even if some of those candidates withdraw, their delegates could be meaningful in helping to champion a candidate who does not hold the delegate lead based on the delegates he or she won alone. To make this clearer, Rand Paul, for instance, could wrangle to control those released delegate slots in the same district and state conventions his father's campaign exploited in 2012 to overcome a 2016 deficit in the delegate count to hypothetical leader, Jeb Bush. I mean, come on. This sounds like a dream come true for the three of us rules nerds out there wandering the wilderness, fingers crossed, hoping for just such a scenario.

Yet, here comes FHQ to throw some cold water on that notion. All this does is raise the importance of the delegate rules at both the state and national level. And it is those very rules that are very likely to limit the number of delegates who are free agents in the first place. The total number of delegate slots allocated to one candidate but filled after released in the selection process by a delegate aligned with another candidate is likely to be small. Just how small depends on a couple of factors.

First, it bears repeating that the earliest states -- carve-outs excluded -- have to allocate their delegates to candidates in a proportional manner. That said, part of the proportionality rules allow state parties to set a minimum threshold of the vote that a candidate must receive in order to be allocated any delegates at the congressional district or statewide level. That threshold can be set as high as 20% (Rule 16(c)(3)(i)). 20% is a high bar in a multi-candidate race. That means that losing candidates -- already more likely to withdraw -- are even less likely to win any delegate slots that can be exploited by other surviving candidates down the road in the process.

Secondly, the field is going to winnow the deeper the nomination process gets into the calendar. Those candidates most likely to drop out are the candidates who may be shut out of delegates within the proportionality window (March 1-14; again, the carve-outs are excluded). That means that a significantly winnowed field (two or maybe three viable candidates if history is our guide) and the end of the proportionality window are going to hit nearly simultaneously. And that translates to there likely being many fewer released delegate slots to sweep up from the beginning stages of the race.

There may be some free agent delegates in the 2016 Republican nomination process, but they are likely to be more like John Edwards' delegates in the 2008 Democratic nomination race: free to choose from among the remaining candidates but very unlikely to be decisive. Chaos could happen, but history (with an admittedly small N) and the rules suggest otherwise.

And if chaos does occur, I hope those 2012 Santorum folks now on Rand Paul's 2016 team don't count delegates like this.

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¹ Minnesota Republicans are in pursuit of a waiver from the Republican National Committee to continue the caucuses/convention practice as they have in the past.

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Maryland House Agrees to Senate Changes, Passes Late April Presidential Primary Bill

Maryland Governor Larry Hogan (R) will now have two presidential primary bills before him after the state House concurred on Friday, April 10 with Senate changes and passed the its bill to move the election back three weeks.

The Maryland state House passed an amended version of HB 396 that is now identical to its Senate companion, SB 204. The bills, whether one or both are signed, would shift the Maryland presidential primary from the first Tuesday in April to the fourth Tuesday in April. The original intent of the legislation in both cases was to prevent a conflict between spring holidays and the early voting window preceding the presidential primary election day. That originally meant just a one week shift to the second Tuesday in April.

However, the fourth Tuesday in April was a lure to Democrats in control of the state legislature. Neighbors Pennsylvania and Delaware are also scheduled to hold primaries on April 26. The Connecticut and Rhode Island primaries are also slated for that date.

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Otter Signs Presidential Primary Bill, Idaho Date Set for March 8

Idaho Governor Butch Otter (R) on Thursday, April 9 signed SB 1066 into law. The measure reestablishes a presidential primary in the Gem state, but unlike in the past, the primary will now be a stand-mostly-alone election scheduled for the second Tuesday in March -- March 8 during the 2016 cycle.¹ The primary elections for other state and local offices will continue to be administered but separately now in mid-May.

Idaho Democrats have already chosen to maintain the caucuses/convention system the party has utilized since 1972. Gem state Republicans, then, will hold a March 8 primary and their Democratic counterparts will caucus two weeks later on March 22. The move makes Idaho the second state to slot into the second Tuesday in March date, joining Michigan. Mississippi and Ohio already had primaries scheduled for March 8 along with Hawaii Republicans' caucuses. Washington state is currently considering legislation to shift their primary to that date, and Alabama is looking to leave the March 8 date for the SEC primary a week earlier on March 1.

A bill to fund the primary is now also on the governor's desk having passed the now-adjourned Idaho state legislature.

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¹ School elections are also scheduled on that date throughout parts of the state.

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Different February Presidential Primary Bill Passes Nevada Assembly Committee

FHQ discussed yesterday the Nevada bill to create a February presidential primary that made it through a state Senate committee earlier in the week. In the lower chamber yesterday, the Committee on Legislative Operations and Elections held a work session for the Assembly version of that bill. The outcome for AB 302 was much the same as its partner in the state Senate. It passed mainly with Republican committee members in support and Democrats against.

However, the two bills -- the Assembly and Senate versions -- now differ. The bill that will be considered on the state Senate floor is the original bill but with a third Tuesday in February primary date replacing the January date initially called for. The Assembly version in the words of committee counsel, Kevin Powers, gutted the original bill, creating an unspecified February presidential preference primary that the state parties can opt into but are not required to participate in. In other words, both parties would have to request that a presidential primary be held and set a date for sometime in February.

To reiterate a point from the post yesterday about the state Senate bill passing committee, this, too is somewhat surprising. That is because all of this legislative maneuvering in both chambers is moot for 2016. Both the Nevada Republican Party and the Nevada Democratic Party have opted to select and allocate delegates to the national convention -- and hold a presidential preference vote -- through a caucuses/convention system in 2016. The Assembly bill would create a presidential primary option for future cycles and that makes it a worthier pursuit than the Senate legislation. That bill would create a February presidential primary that would also include the usual June primaries for other offices in the Silver state. It would also attempt to codify a requirement for parties to allocate and bind delegates through a presidential primary system. The Senate version has the steeper climb of the two.

...but neither bill is likely to have any effect on the caucuses both Nevada parties are planning to hold next year.

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Maryland Senate Concurs With House Changes to Presidential Primary Bill and Sends Off to Governor

The state of Maryland today moved one step closer to moving its presidential primary to the fourth Tuesday in April. On Thursday, April 9, the Maryland state Senate concurred (47-0) with the minor changes made to SB 204 by the House just a day before, clearing the way for the bill to be enrolled and delivered to Maryland Governor Larry Hogan (R) for his consideration.

An April 26, 2016 presidential primary in Maryland -- assuming the governor signs the bill into law -- would coincide with primaries in Delaware, Pennsylvania, Connecticut and Rhode Island. Though that is one potential benefit, the initial driver behind the push to move the primary back three weeks was to avoid the contest overlapping with spring religious holidays.

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