For 2020, Colorado Republican Delegate Allocation Rules Seemingly at Odds with RNC Rules

Back in the lead up to the 2012 presidential primary season, the Republican National Committee (RNC) instituted a new set of rules governing the presidential nomination process. The changes for that cycle put in place a later start time to primary season (reserving February for the four carve-out state contests), but also added a new wrinkle to how state parties could allocate delegates based on the results a primary or caucus.

The latter of those national party-level restrictions on the activities of state parties required that states with primaries and caucuses in or before March allocate delegates in a proportional manner. Now, in the time since that point, the RNC has redefined what proportional means and decreased the size of the window of the calendar in which winner-take-all rules are prohibited. But that proportionality window still exists. State parties with contests before March 15 have to set in place rules that proportionally allocate national convention delegates.

Yes, that is a more restrictive national party mandate than has historically been the case in the Republican process. However, state parties are not without some latitude. They have some discretion. For one, state parties can add a delegate qualifying threshold of up to 20 percent which can greatly restrict the number of candidates who receive delegates (especially in a cycle in which an incumbent president is seeking renomination).

State parties also have the option of splitting up the allocation of different types of delegates. At-large delegate allocation can be tethered to statewide result while congressional district delegates can be awarded to candidates based on their performance in those subunits within a given state.

Finally, even in the proportionality window that opens the presidential primary calendar under the RNC rules, state parties have the option of adding a winner-take-all trigger for candidates who win a majority or more of the vote statewide. Massachusetts Republicans, for example, added a winner-take-all trigger to their delegate selection rules for their Super Tuesday primary in 2020. And that is not uncommon for states with contests in the proportionality window. Most, in fact, have winner-take-all triggers in their plans.

In other words, state parties have options to tilt the allocation in a winner-take-all direction on the early calendar and still remain in compliance with RNC rules.

Perhaps that is an overwrought preface, but it is laid out in advance of a possible rules violation by one state party ahead of the 2020 cycle. Last week -- on or before October 1 -- state Republican parties were to have finalized and submitted to the RNC their delegate selection plans for 2020. And the bylaws of the Colorado Republican Party appear to violate the proportionality mandate from the RNC for the party's 2020 presidential primary (newly reestablished for the 2020 cycle).

Much of this potential conflict can be traced to the late March 2019 state central committee meeting of the Colorado Republican Party. The state party chair election dominated the headlines coming out of that meeting, but that was not the only piece of business on the committee's agenda that weekend. They also considered changes to the 2020 delegate selection rules.

In light of the new presidential primary in the Centennial state, a proposal came before the committee to streamline the delegate selection process. And it should be noted that Colorado Republicans are constrained not only by national party rules but state law as well. RNC rules require that delegate allocation be based on the earliest statewide contest and the new Colorado law concerning the presidential primary purposefully schedule caucuses in the state for after the primary (the Saturday after). The caucuses (and any attendant presidential preference vote) would follow the vote in the primary. The Colorado Republican Party, then, is basically stuck using the primary for allocating delegates.

Part of the rules changes on delegate allocation at the state central committee meeting in March addressed that. Struck from the rules at the time was a contingency for allocation depending upon whether there was a primary or caucus. Now that section of the bylaws simply refers to the results of the Colorado Presidential Primary.

Also struck from the old rules, however, was guidance on who -- which candidates -- would qualify for delegates in the event that Colorado held a presidential primary. The old rules, and this other section that was struck from them, allocated delegates to candidates who received 15 percent or more of the vote in the presidential primary. Again, that is consistent with RNC proportionality requirements for states with primaries or caucuses before March 15 and was part of the 2016 rules Colorado Republicans used (but there was no presidential primary).

But that guidance is now gone, and in its place is this language on delegate allocation and binding:

a. On the first nominating ballot for President, in accordance with State statute all members of the State’s delegation shall be bound to vote for the Presidential candidate who received the highest number of votes in the Colorado Presidential Primary, and the CRC Chairman acting as chair of the delegation, or his designee, shall announce that the entire vote of the State’s delegation is for that candidate. If that Presidential candidate releases his delegates through public declaration or written notification, the candidate's name is not placed in nomination, or the candidate does not otherwise qualify for nomination under the rules of the Republican National Convention, the individual National Delegates and National Alternate Delegates previously pledged are released to cast their ballots as each may choose. b. On any succeeding ballot for President and on all ballots for other purposes the individual delegates are released to cast their ballots as each may choose.

[Emphasis added by FHQ]

That appears to be a violation of RNC rules restricting delegate allocation in early calendar contests.

However, there are a couple of caveats.

First, the next rule in the sequence after those listed above does give the state central committee the ability create rules governing the selection of delegates that are consistent with both the bylaws and RNC rules on or before October 1 in the year prior to a presidential election. The above winner-take-all provision, then, is just a baseline. But one that conflicts with national party rules given the position of the Colorado primary on the calendar.

In addition, the process by which delegates are selected requires them to align (or remain unpledged) with a candidate. The RNC legal counsel interpretation of the RNC rules in 2016 was that that alignment -- pledging to a candidate upon filing to be a delegate candidate -- bound that delegate candidate to their presidential preference. And that Colorado selection procedure is still in rules for 2020. Whether the RNC legal counsel still interprets the RNC rules the same in 2020 as was the case in 2016 remains to be seen.

Regardless, any delegates selected at the state convention or in congressional district conventions aligned with candidates other than the winner of the presidential primary in Colorado would likely be bound to those candidates at the national convention. But that would only be the case if that candidate was still in the race and had his or her name placed in nomination at the convention. That, too, seems a stretch in a year in which an incumbent Republican president (still popular within the party) is up for renomination. But any such delegates would become free agents and could support another candidate.

Finally, the secretary of state in Colorado also has the option of canceling the presidential primary if there is no competition. That has to be done by January 3, 2020. But the bar for ballot access to the Colorado primary is quite low for prospective candidates: $500 fee or 500 signatures.

Colorado, then, will likely have a Republican presidential primary on March 3, and because of those caveats above, likely will not allocate delegates in a winner-take-all manner.

...unless the party has added a winner-take-all trigger as other states have done.



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Rhode Island GOP Inserts Winner-Take-All Trigger into 2020 Delegate Allocation

Late last month as the RNC deadline for state Republican parties to finalize delegate selection procedures for the 2020 cycle, Rhode Island Republicans made some adjustments.

Four years ago, the party allocated its 19 delegates in a proportional manner to candidates who received more than 10 percent of the vote either statewide or in the two Ocean state congressional districts. Little of that has made its way into the process the party has set up for 2020.

First of all, RIGOP has pooled all of its delegates -- at-large, congressional district and automatic -- instead of allocating them as separate categories. Additionally, there is now (as of a September 20 meeting of the state central committee) a winner-take-all trigger included. Should a candidate win a majority of the vote statewide, then that candidate would receive all 19 delegates in the Rhode Island delegation to the Republican National Convention. It is clear that the latter was added during that September meeting, but it is not as clear that the decision to pool all of the delegates occurred at that time as well.

There are at least some hints that some changes were made to the Rhode Island Republican Party delegate selection process before September. For example, the Providence Journal article outlining the new winner-take-all trigger also mentioned that the qualifying threshold to receive any delegates was set at 20 percent. That, too, is new for 2020. Again, the threshold for 2016 was just 10 percent. It has doubled to the RNC's maximum-allowed threshold and applies collectively to all 19 Rhode Island delegates.

No, 19 delegates is not likely to fundamentally affect the race for the 2020 Republican presidential nomination, but Rhode Island Republicans have made some changes to streamline their process and potentially maximize their influence (to the extent that can be done in the context of a regional primary with five other, often more delegate-rich, states). It also represents another datapoint in the narrative of how these state-level rules have come together on the Republican side ahead of 2020. State parties have moved in subtle and dramatic ways to increase the usage of winner-take-all rules or make other changes to potentially advantage the president's path to renomination.



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Iowa GOP Carries Over 2016 Delegate Allocation Rules to 2020

Unlike a couple of other carve-out states -- Nevada and South Carolina -- Iowa Republicans have long maintained that they will, in fact, hold a presidential preference vote during their 2020 caucuses next February and not cancel the contest.

But that does leave at least somewhat unanswered just what the party may do with its delegate selection process in 2020. In truth, there is little for Iowa Republicans to do. In 2016, the party ostensibly felt compelled to follow the letter of the law (or rule anyway) from Republican National Committee with respect to delegate allocation in an effort to protect the Hawkeye state's first-in-the-nation position. The Republican Party of Iowa (RPI) adopted in 2015 a straight proportional plan with no qualifying threshold (other than the percentage of the vote necessary to round up to one delegate).

And that plan has carried over to the 2020 cycle. The language of Article VIII of the rules of the Republican Party of Iowa remains the exact same for 2020 as it was in 2016.¹ And that means that delegates will be allocated proportionally to the candidates who make the caucus list based on the statewide results of the caucuses. There again is no official qualifying threshold.

However, the key carry over component from 2016 is one related to the conduct of Iowa delegates at the national convention. Should only one candidate reach the requirements of Rule 40(b) of the RNC rules to be placed in nomination at the convention, then the entire Iowa delegation is to vote for that candidate. That is part of the reason why Iowa delegates ended up casting their votes for Trump at the 2016 Republican National Convention despite Ted Cruz having carried the caucuses.

That, too, carries over to 2020. The big difference this cycle is that the dynamics of the caucuses are far different with a much smaller field of candidates, one of whom -- the president -- has only token opposition. But the allocation rules look the same in Iowa.


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¹ Article VIII of the RPI bylaws:

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For Maine Republicans, 2020 Will Feature a Primary Instead of a Caucus

The Maine state legislature this summer passed legislation that was later signed into law that reestablished a presidential primary in the Pine Tree state for the first time since the 2000 cycle. One of the facets of that effort was a division along party lines. Democratic legislators in the majority supported the primary while legislative Republicans opposed it, favoring the pre-existent caucus/convention system.

That raised some questions once the bill became law. Maine Democrats were eager to support the new primary election -- especially given new rules-based encouragement from the Democratic National Committee to increase participation -- but it was an open question about whether Republicans in the Pine Tree state would opt into the new presidential primary or choose to instead stick with the caucus/convention system the party had used through much of the 21st century.

But as the Republican National Committee deadline for state parties to finalize delegate selection processes for the 2020 cycle approached and passed on October 1, it became clear that Maine Republicans would follow the lead of Democrats in the state and opt into the presidential primary election.

This was noteworthy because Maine was among the states in 2004 -- the last Republican presidential nomination process featuring an incumbent Republican president -- canceled its presidential preference vote at the caucuses that year. That presumably would have been an option for Maine Republicans for 2020 as well. The party certainly would not have been alone in forgoing a preference vote for the purposes of allocating delegates. At least six other states have already canceled primaries or caucuses. Maine Republicans, however, have taken a different tack in deciding to use the newly reestablished presidential primary.

Finally, the Bangor Daily News reports that at least some of the 2016 allocation rules will carry over to the 2020 process for Maine Republicans. There will, for instance, still be a winner-take-all trigger layered into the rules to reward a candidate with all of the state's delegates if that candidate wins a majority of the vote statewide. That trigger stands a much greater chance of being tripped in 2020 with a popular (within the Republican primary electorate) president seeking renomination against only token opposition.

How much of the remainder of the 2016 allocation rules in Maine's Republican process remains a bit of a mystery. FHQ's attempts to reach out to the Maine Republican Party for clarification have so far gone unanswered. Should that change, there will be an update on the overarching delegate allocation rules in the state in this space.


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Georgia Republicans Nudge Delegate Allocation in a Winner-Take-All Direction

Back in May 2019, the Georgia Republican Party gathered in Savannah for its state convention. Coming out of the weekend, the biggest of headlines was the election of David Shafer as state party chair, but that was not all Republican delegates to the state convention considered.

No, there were also changes considered and made to the rules of the Georgia Republican Party, including some tinkering with the party's process for selecting and allocating delegates to the Republican National Convention. The main change on that front was the insertion of a new section into Rule 7.3 of the Georgia Republican Party rules. That new section plus a new preface to the original section defining delegate allocation in the state created a contingency based on when the presidential primary is scheduled.

B) If the Presidential Preference Primary shall occur on March 15 or thereafter in the year in which a Republican National Convention is held, the Republican Presidential candidate receiving the highest number of votes in the Presidential Preference Primary in each Congressional District shall receive all votes of such Congressional District Delegates and seated Alternates to the Republican National Convention. The Republican Presidential candidate receiving the highest number of votes in the Primary statewide shall receive all statewide (State at Large) Delegate and seated Alternate votes to the Republican National Convention, and such Delegates and Alternates shall file a qualification oath as required by O.C.G.A. $ 21-2-196.

Given the national party rules restricting the usage of winner-take-all allocation methods prior to March 15, the Georgia Republican Party basically created an allocation method for primaries scheduled on either side of that line of demarcation in the Republican presidential primary calendar.

The rules in the event of a pre-March 15 primary are the same as they were in Georgia in 2016: proportional under the broader Republican National Committee definition of the term with a 20 percent qualifying threshold (statewide and in each the congressional districts) and a winner-take-all trigger if a candidate wins a majority in each unit (statewide and in each the congressional districts). None of that has changed.

However, the new section B to Rule 7.3 accounts for a March 15 or later presidential primary. And it shifts Georgia Republican delegate allocation back to a method the party reliably used before 2012: a winner-take-most/winner-take-all by congressional district method. A candidate who wins a plurality statewide would win all of the statewide/at-large delegates. Any candidate who wins a plurality in any of the 14 congressional districts would win the three delegates from that district.

And that will be the method Peach state Republicans use in 2020. A month after the Savannah state convention, Secretary of State Raffensperger (R) set the Georgia presidential primary date for March 24. Georgia, then, will have a more winner-take-all flavored allocation method for 2020 than it has in any cycle since 2008.

While this may be treated by some as some advantage for President Trump, it should be noted that there were already winner-take-all triggers both statewide and at the congressional district level in the plan Georgia Republicans used in 2016. An incumbent president, popular within his own party, very likely would have/will hit those majority thresholds that would have tripped the winner-take-all triggers.

In any event, Georgia will be more winner-take-all in 2020 than it has been in recent cycles.


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Florida GOP Eschews Presidential Primary Cancelation, but...

While a handful of other Republican state parties have made decisions throughout the summer months of 2019 to cancel 2020 primaries and caucuses, the Florida Republican Party has chosen not to join the club.

Republican Party of Florida chair, Joe Gruters said, "If people think that they want to challenge the president, by all means, go ahead, they’re going to get annihilated," according to The Palm Beach Post.

But while spinning the likely landslide primary win as a bonus for the president is one thing, that may not be the end of the story on the fate of the Republican presidential primary the Sunshine state in 2020. Florida, as it turns out, has a law on the books that cancels the primary if only one candidate makes the primary ballot. This canceled the Republican primary in the state in 2004 when George W. Bush was up for renomination. And the Florida primary was again canceled in 2012 when Barack Obama saw no competition for the Democratic presidential nomination.

That could again happen in Florida for 2020 depending on ballot access. But here's the rub: the bar for ballot access to the presidential primary in the Sunshine state is quite low. There are no petitions and no filing fees as hoops through which the various campaigns have to jump. Instead, the process is initiated by the state party itself. A state party submits to the Florida secretary of state a list of candidates to be included on the primary ballot by November 30, 2019. The secretary of state, then, publishes the list within the week by December 3. That becomes the official list unless one or more of the candidates wants his or her name removed from the ballot.

There is still a chance, then, that the Florida primary will be canceled, but it hinges on the list that the Republican Party of Florida will, itself, submit to the secretary of state. Chair Gruters' comments above seem to imply that the three challengers are more than welcome to a spot on the primary ballot.

But whether the party actually submits their names by November 30 remains to be seen. That is the key question moving forward.

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The Florida primary is set for March 17 and would retain the winner-take-all allocation formula the party has utilized in recent cycles (according to the party rules adopted in 2017).



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Canceled No More? South Carolina GOP Decision to Cancel Presidential Primary Challenged in Court

A lawsuit has been brought against the South Carolina Republican Party over its decision to cancel its 2020 presidential primary the Charleston Post and Courier reports. The issue is less directly about the decision itself than how the decision was made.

Under the rules of the South Carolina Republican Party, the party has the option of canceling a presidential primary as it has done a number of times in the past in uncompetitive Republican presidential nomination cycles involving an incumbent. It happened in 1992 and again in 2004. But the mechanism in place to cancel the primary follows a certain protocol, a protocol laid out in party rules and not seemingly followed during the decision-making process for 2020.

The prime actor charged with initiating the cancelation under the rules is the state convention. And in March of 2019, the South Carolina Republican state convention did not take up the issue of the presidential primary. Instead, it was the party's executive committee that made the move. Now, the executive committee is not without some power in the cancelation process, but is limited and actually runs in the opposite direction. As Rule 11 details, the cancelation decision is the domain of the state convention. But if the executive committee later decides that there is value in holding a presidential primary and not canceling, then the committee can reverse the decision by January 15 of a presidential election year.

The executive committee, then, has the power to reverse a cancelation, but not cancel the primary by itself. But that is exactly what the SCGOP executive committee did on September 7. And there is nothing in the rules covering that decision, nor one to reinstitute a primary once it has been canceled. The committee can only reverse the state convention system.

It was this conflict that drew the lawsuit from former South Carolina congressman, Bob Inglis and one other complainant. Whether the action reverses the SCGOP decision remains to be seen, but it is one that clearly strays from the process described in the state party rules, which also conflicts with state law prohibiting state parties from doing so.



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Utah Republicans Will Hold a 2020 Presidential Primary

UtahPolicy is reporting that the Utah Republican Party is planning to stick with its presidential primary for the 2020 cycle. Unlike the handful of Republican state parties that have opted out of primaries and caucuses during the summer months of 2019, Beehive state Republicans are carrying over their 2016 process and actually upgrading to a state-run presidential primary for 2020.

But everything else will remain the same. That means that Republican candidates will face the same thresholds for delegate allocation in 2020 that were in place for 2016. If a candidate wins a majority of support statewide, then the allocation is winner-take-all. Otherwise, the allocation is proportional to candidates clearing a 15 percent qualifying threshold. However, should no candidate win a majority and fewer than three candidates break 15 percent, then the threshold disappears and the allocation if truly proportional. It seems likely at this time that President Trump will clear that majority threshold in 2020 and trigger the winner-take-all allocation.

The one thing that is different in Utah for 2020 is the date of the primary. It will fall on Super Tuesday, three weeks earlier than would have been the case under the primary law under with the 2016 presidential primary operated.

But the bottom line in Utah is that there was no mechanism in state law or state party bylaw to allow the state party to opt out of the presidential primary. That drove the decision.


NOTE: Counter to what the Utah GOP chair, Derek Brown, said in the UtahPolicy article, this is not the first time Utah's primary has fallen on Super Tuesday. The Utah primary was part of the massive Super Tuesday logjam on February 5 in 2008.



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At the End of the Calendar, a Tweak to 2020 Montana Republican Delegate Selection

On the surface, there is not much that separates the delegate selection plan Montana Republican used in 2016 and what the party will carry forward into 2020.

Yes, the primary in Treasure state will fall at the end of the Republican presidential primary calendar, and yes, the allocation will remain winner-take-all for the second consecutive cycle. Those toplines are exactly as they were for the last cycle.

However, the overall process is not without some differences relative to 2016. And those changes do not occur in the delegate allocation portion, but on the delegate selection front. The plurality winner in the June 2 presidential primary will receive all of the delegates to the national convention from the state of Montana. But how those delegate slots are filled and by whom is a bit different for 2020.

In 2016, the power to elect/select delegates to the national convention was within the roles and responsibilities of the Montana state convention without any formal input from the candidate and campaign of the primary winner. That will differ from what will occur in 2020.

Under the rules adopted by the Montana Republican Party adopted in June, the convention will retain the role of ratifying who the national convention delegates from the state are, but will defer to the campaign of the presidential primary-winning candidate on identifying a slate of delegates. Instead of holding both roles -- identifying/selecting delegates and ratifying that -- the state convention will now only hold the latter role. The winning candidate's campaign chooses the slate of delegates and then the state convention ratifies that by majority vote. Should that slate fail to receive that ratification from the state convention, then the candidate submits a new slate (or slates) until that majority threshold is met.

Functionally, this would likely cede in 2020 the selection role to the Trump reelection effort, and that slate would be highly likely to pass muster with the delegates to the Montana Republican state convention. This is another example of a subtle shift in state-level rules that could be interpreted as incumbent-friendly.

It is also a rules change that seemingly has a sunset provision in the rules. Section B.III.F.3 of the Montana Republican Party rules is specific to the 2020 cycle. There is no expiration included in the rule, but a change will have to be made to apply this to 2024 or tweak it for that cycle.


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Connecticut Republicans Add Subtle but Specific Change to 2020 Delegate Rules

Connecticut Republicans have planned to stick pretty close to the delegate selection plan the party utilized in 2016. The allocation looks just the same.

At-large delegates are all awarded to any majority winner. Absent a majority winner, the delegates are allocated proportionally to candidates with at least 20 percent of the vote statewide. On the congressional district level, it remains a winner-take-all scheme. A candidate who wins a congressional district with any plurality wins all three delegates from that district.

Nothing is different there.

However, there was one subtle change the party added to its formula in 2018 and it concerns any uncommitted delegate slots allocated because of votes for "uncommitted" on the primary ballot. Here's the new rule (Section 17(h)):

In the event that any delegates are awarded to the uncommitted spot on the Presidential Preference Primary Ballot, said delegate positions shall be filled by the state party chairman, and submitted in the same manner as prescribed in subsection (d).

Theoretically, this rule cedes to the state party chairman the ability to name uncommitted delegates, delegates that could be picked to hypothetically align with an incumbent president seeking renomination. But this is a very narrowly applicable rule. Connecticut is a state that automatically cancels primaries if only one candidate appears on the ballot. Should none of President Trump's three challengers make the ballot, then there would not be a primary and thus no need for an uncommitted line on said ballot.

This rule would only apply in a scenario where 1) one of more of those Republican challengers make the presidential preference primary ballot, 2) enough Republican primary voters (more than 20 percent) flock instead to uncommitted as a protest to Trump and qualify uncommitted for delegates, and 3) Trump fails to get more than a majority of the vote statewide.

In that unusual scenario, and that scenario alone, would the state party chair choose those uncommitted delegates (and likely be inclined to choose delegates closely aligned with the incumbent).

Yes, this is a very subtle change to the Connecticut Republican delegate selection process. But it is one that, at least under these specific conditions, would stand to benefit the president.

It is also a rules change that one could file under the leave no [rules] stone unturned category.


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