What Happens if States Don't Go Along with the National Party? [Annotated]

Meg Kinnard has a super helpful explainer up at the Associated Press about how parties and states set their presidential primary and caucus dates. There is good stuff in there. We need pieces like these. But the section added on the penalties applied to violating states by the national parties highlights the fact that some things just get lost in the oral and written histories of presidential nominations over time. 

A few things about that penalties section...

First, the DNC does have a penalties regime in place for rogue states. If a state jumps into the pre-window period on the calendar, then that state loses half of its delegates.¹ But the DNC Rules and Bylaws Committee (DNCRBC) also has the discretion to increase that penalty. This is what was witnessed in Florida and Michigan in 2008. Both states would have been stripped of half of their delegates under the rules. But the DNCRBC, getting little to no help from either state party in Florida or Michigan or state Democratic legislators (some of whom had voted for the primary date changes that put both states in violation of the rules) opted to make an example of both in late 2007. Using that discretion, the DNCRBC stripped both states of all of their delegates. 

And yes, near the end of primary season in 2008, the DNCRBC did restore all of those delegates to both Florida and Michigan in a Memorial Day weekend compromise that held that all delegates from the two states to be seated but only retain half a vote at the convention. But that was not the end of the story. At the beginning of August 2008, Sen. Barack Obama (D-IL), the presumptive Democratic nominee, requested that the states' full voting rights be restored at the Denver convention later in the month. It was a request Obama's main opponent, Sen. Hillary Clinton (D-NY) echoed and the Credentials Committee at the convention honored.² 

It is this very tension that state Democratic parties in both Iowa and New Hampshire are now banking on for 2024. That is, the national parties are typically torn in this situation. On the one hand, upholding the rules -- or relenting -- has implications for future cycles (and state behavior in them). But on the other, at that time in the cycle -- the convention -- those same national parties and the nominees they are set to formally nominate are transitioning toward a general election fight where unity is key; unity that would be disrupted if one or more state delegations are not seated at the convention. The timing just is not right for national parties to truly and effectively crack down (unless maybe the state is a lost cause or a sure thing). 

Kinnard then moves on to 2012...

After the chaos of 2008, both national parties saw the need to right the ship for 2012. Despite the fact that both the DNC and RNC shifted back by a month the point on the calendar when non-carve-out states -- those other than Iowa, New Hampshire, Nevada and South Carolina -- could hold contests, Florida and Michigan jumped the queue into the pre-window once again. They were joined by a handful of non-binding Republican caucuses. 

The Republican rules covered the noncompliant Florida primary at the end of January and the similarly noncompliant Michigan primary at the end February. Both lost half of their delegates. The few non-binding caucuses skirted the Republican sanctions because no delegates were allocated directly based on the results of the first stage caucuses. But the penalties that were levied were upheld at the Republican National Convention in Tampa. 

Nothing was done on the Democratic side with Florida or Michigan in 2012 because the state Democratic parties in each shifted to caucuses during that cycle to avoid sanction from primaries moved by Republican-controlled state governments and because President Obama was seeking renomination without any serious opposition.

It is worth noting that Florida and Michigan Democrats in the state parties and state legislatures made good faith efforts to comply with the rules in 2012 in contrast with 2008. It is those sorts of efforts under Rule 21 that often help in avoiding sanction from the DNCRBC. 

Things then shift to penalties on candidates...

The description here would be, I suppose, closer to what the Republican National Committee does to candidates; ding them on speaking slots. But none of that is officially part of the RNC rules. And, in fact, it would be less an RNC move than a presumptive nominee's at that point. It is their convention after all, and the nominees-to-be tend to orchestrate things with assists from the national party. In that light, a move to bump a former opposition candidate to a poor speaking slot for campaigning in a rogue state months before would be more petty than anything.

But while the RNC does not have official candidate penalties, the DNC does. It has since the same 2008 cycle rules changes that also added Nevada and South Carolina to the pre-window lineup of states. But those penalties were never meted out because it was discretionary. The rules changes for the 2024 cycle alter that calculus. No longer may the party strip a candidate who has campaigned in a rogue state of all of their delegates won in that state; they shall do that. And beyond the strengthening of the rules there, the DNC has also made the definition of the what constitutes campaigning more inclusive. Campaigning now includes filing to be on a ballot in a rogue state or not working to remove one's name from a rogue state ballot (where filing is not required and ballot access is more automatic). The new rules have also granted the DNC chair the authority to take matters a step further should candidates not not abide by these rules. The chair can prohibit candidates in violation of the campaigning rules from presidential primary debates sanctioned by the national party. 

Those are deterrents with some teeth that have implications for the candidates before and during primary season, not just at the end of it. The idea is to keep candidates out of rogue states in order to neuter the violating contests in those states. Under those circumstances, states theoretically would not want to hold rogue contests because the lure -- candidates and attention -- would no longer exist (or would at the very least be greatly minimized). 

Is the DNC committed to penalizing Iowa and New Hampshire if either goes rogue? 

Ultimately that will be a question better posed in the summer of 2024 as the conventions approach. But the DNC is serious about the candidate penalties (see rules changes for 2024) and fully stripping states of their delegates -- beyond the baseline 50 percent sanction -- is also on still on the table. Such a prospect was raised in the conversations about the calendar rules at the DNCRBC meeting that adopted the new calendar proposal. 

Rules matter. So do rules changes. 

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¹ Republicans had the same 50 percent penalty for states in violation of the RNC timing rules in both 2008 and 2012. However, the party strengthened its penalty for going rouge for the 2016 cycle; something the national party has had in place ever since. The super penalty strips a bigger state of all but nine of its delegates and smaller states of all but six delegates.

² Honestly, this should not count against Kinnard. I had trouble enough tracking down information to even confirm my recollection of events. FHQ has some oblique references to the moves here and also here. Wikipedia has a footnote which leads to a piece on the DNC Credentials Committee vote, but sometimes one just has to go straight to the roll call vote on the nomination which shows a full Florida delegations of 211 and likewise a 157 delegate Michigan group.

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Recent posts:

New Hampshire Congressional Delegation Defends First-in-the-Nation Presidential Primary

Democrats Mull Changes to the 2024 Calendar?

Adjournment Kills Michigan Presidential Primary Bill

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New Hampshire Congressional Delegation Defends First-in-the-Nation Presidential Primary

And folks, why would they not? 

It is completely natural for New Hampshire Democrats like Sen. Hassan, Sen. Shaheen, Rep. Kuster and Rep. Pappas to defend this particular piece of political real estate. Every New Hampshire politician, regardless of party, has done so for at least the half century of the post-reform era. But it is worth considering -- on this side of the decision by the DNC Rules and Bylaws Committee (DNCRBC) to strip Iowa of its position altogether and shunt New Hampshire's presidential primary into the second position alongside Nevada -- whether the old arguments have grown stale. New Hampshirites will likely argue no, but 2024 represents the first cycle that New Hampshire's position in the pecking order has not been directly protected in the Democratic process since 1980 (and the first time in the post-reform era that its first-in-the-nation status has not been at least indirectly protected).

Things are different. But the arguments have remained largely unchanged from past cycles when the primary came under threat. 

Retail politics

The congressional delegation starts by making the claim that the New Hampshire presidential primary occupying the first position makes both the country and democracy stronger. That having given power to voters and not party bosses in the process over a century ago has allowed the state to nurture and harness a certain participatory culture. In combination with the small size of the Granite state that all makes retail politics maximally possible. 

Sure, it takes time to develop a culture like that, but retail politics is possible elsewhere. In South Carolina, for instance. The Palmetto state is bigger than New Hampshire, but it is not bank-bustingly bigger. Candidates can meet face to face with voters, hear their concerns cheaply and easily, and be tested just the same. South Carolina Democrats have been a part of the pre-window since the 2008 cycle, and no, that is not a century's worth of experience, but it offers an electorate that is more diverse than what the Granite state has to offer. And it is debatable whether an unrepresentative primary is better for the country or democracy in a narrow or broad sense. The DNCRBC has placed a bet that diversity matters in the Democratic (and democratic) process. 

Blackmail

Another part of the New Hampshire primary culture that the four member congressional delegation leans on is blackmail. That will be read in a negative light, but it is not intended in that way. Look, New Hampshire decision makers across the board have taken a "protect the first-in-the-nation position at any costs" approach for a very long time. Decision makers in any other state under the same conditions would do and would have done the same thing that folks in New Hampshire have been doing for the last 50 years. 

But part of that effort has definitely been blackmail through organizing candidate boycotts when other states have threatened to encroach on the New Hampshire primary's primacy. The threat to candidates has always been some form of "pledge that you will not campaign in the aggressor state or you are done here in the Granite state." In other words, cross New Hampshire and prepare to have your presidential aspirations kneecapped. That happened in 1996 in a standoff with Delaware and again in 2012 when Nevada Republicans tried to carve out an early spot once pushed there by a rogue Florida primary.

The problem in the 2024 cycle is that the DNCRBC has turned the tables on New Hampshire. By locking the presidential primary in the Granite state in the second position behind South Carolina in the rules, a New Hampshire shift would open the state up to penalties. But more importantly, candidates who campaign in a potentially rogue New Hampshire would then not only be stripped of any delegates won in the state, but also be subject to possible prohibition from candidate debates for campaigning in the state.

Of course, the New Hampshire congressional delegation does not broach the topic of unofficial candidate boycotts. That is not the particular blackmail they bring to the table. Instead, they raise the prospect that New Hampshire Republicans will use state Democrats' supposed negligence against the state party and lure crucial independents into the still-first Republican presidential primary. Furthermore, they argue that those same independents may stick with the GOP in a general election, potentially tipping the balance against Democrats in a narrowly divided state, and by extension, possibly costing the party Senate control and/or electoral votes. 

All of that is true. Those things could happen. But it could also be that President Biden seeks reelection, ends up running largely unopposed, and New Hampshire independents flock to the competitive Republican presidential primary anyway. Is it a gamble for the president and the DNC to potentially irk a sliver to a lot of New Hampshire voters by coming down hard on the state Democratic Party for fighting to maintain its traditional position? It undoubtedly would be if it is not already. But are independents, Democratic-leaning or otherwise, going to vote for a Republican nominee in the Trump mold (or Trump himself) over Biden because of the primary? The answer is maybe (or if one is in New Hampshire, YES!). But that seems to be a gamble the president and those around him are willing to take in this fight. There are very few scenarios where New Hampshire's four electoral votes serve as the tipping point in the electoral college. It is possible although less probable than other, bigger states. And neither New Hampshire US Senate seat is up until 2026. Is that gamble worth it? Time will tell that tale. 

The Nevada pairing

Dipping back into the well of retail politics, the congressional delegation also draws attention to the injurious impact that not only the New Hampshire primary not being first, but pairing it with the Nevada primary will have. That is not wrong, but the group missed an opportunity to point out a major drawback in the president's calendar proposal. It is not just that the New Hampshire/Nevada pairing will put a cross-country strain on campaigns, but that three contests (including a leadoff South Carolina primary) in the proposed calendar's first four days turns a typical slow build up through small states into a more nationalized event. 

The New Hampshire/Nevada pairing would have an impact on the retail politics that the process has typically known, but three contests on top of each other as proposed would further hamper face-to-face contact with voters and have implications for how the field of candidates winnows. The winnowing issues are less problematic if Biden runs for reelection and is largely unopposed. But setting the precedent of an early calendar cluster in 2024 may lay the groundwork for a repeat of the untested experiment in 2028 when it may matter substantially more in a competitive environment.

State law

Finally, the New Hampshire congressional delegation defends the state's first-in-the-nation primary with the trump card decision makers in the state ultimately end up pulling every time a threat arises: state law. There is a state law. It does require the secretary of state to schedule the New Hampshire presidential primary for a position on the calendar at least seven days in advance of any other similar contest. And lest one forget, the state law also codifies how the parties are to select and allocate delegates based on the results of the primary. So while it is tempting to argue that the secretary of state is the actor bound by the law, the state parties are tied to it as well. 

Granted, it is also true that the courts have continually sided with political parties under free association grounds when these sorts of conflicts arise between law and party rules. The New Hampshire Democratic Party could fight elements of this law as well. But in so doing, the party would further undermine the statute and the position of the New Hampshire presidential primary on the calendar. Plus, the party can allocate delegates under DNC rules, but it cannot unilaterally change the date of the presidential primary. That decision is out of the party's hands. 

And that is the predicament New Hampshire Democrats find themselves in on this issue. For the first time their first-in-the-nation primary is neither directly nor indirectly protected by DNC rules. And their arguments come down to basically a state law that could be challenged in court by the state party (if it did not want to further threaten the primary's position) and a variation on the blackmail New Hampshire actors have made for half a century. The conditions are different for 2024 and the arguments look different in that light.

The New Hampshire presidential primary will be first. But it will be first in the Republican process. The secretary of state will see to that. But the question remains whether New Hampshire Democrats will break in the unprecedented standoff with the DNC.

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Recent posts:

Democrats Mull Changes to the 2024 Calendar?

Adjournment Kills Michigan Presidential Primary Bill

Nevada Holds the Key for 2024 Republican Presidential Primary Calendar

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Democrats Mull Changes to the 2024 Calendar?

Which Democrats?

According to The Hill, there are "vocal concerns about South Carolina from all corners of the party." But the tell that these are not serious concerns is in the supposed compromise states being offered as substitutes for the newly tabbed first state in the 2024 pre-window lineup. 

North Carolina?

Democrats in the Tar Heel state did not even apply for a waiver when the process was opened up by the DNC Rules and Bylaws Committee (DNCRBC) earlier in 2022. If one thinks South Carolina Democrats -- a state party that has been knowingly and willingly involved in the pre-window period of the calendar for four cycles now -- were surprised by being moved in President Biden's proposal to the first slot, then imagine how North Carolina Democrats would feel at having the honor fall in their laps. Any initial elation would quickly subside, overtaken by the need to actually prepare for being first.

Specifically, North Carolina has a near Republican supermajority in the General Assembly, where any effort to move the presidential primary would start. In theory, Republican legislators may like a more prominent position on the calendar. But in practice, none of them would like seeing the state's Republican delegation slashed by more than 80 percent. State Democrats cannot work around that roadblock. Nor can the national party.

Georgia?

FHQ has discussed this in depth elsewhere, but Georgia has a Republican obstacle of its own. Brad Raffensperger, Republican secretary of state in the Peach state, has signaled that his office will not jeopardize either party's full slate of delegates and has no interest in taxing election workers across two presidential primaries (nor for adding the costs of a second presidential primary to accommodate the DNC plan).

Yes, Georgia was a part of the proposed Biden pre-window slate, but it was always wishful thinking that the national party, much less Georgia Democrats, could make that change happen given the existing constraints. It was an aspirational move with little downside. "Hey, we tried to add Georgia as an early state, but local Republicans stood in our way," is not a bad argument to make in a closely divided state. By itself, that probably will not move many votes, but as part of a larger narrative about Republican obstruction it might. 

Nevada?

Well, at least Nevada makes some sense. Heading into the DNCRBC meeting in early December, the Silver state seemed to be vying for the top slot with New Hampshire and then ended up getting lumped into the same second position alongside the primary in the Granite state. 

But Nevada, like North Carolina and Georgia above, has potential Republican opposition to any move. The new governor stands in the way of any change to the date of the primary. Moreover, the contest is already scheduled for February 6. South Carolina could be moved back in the order (along with New Hampshire) to make way for the Silver state to go first. 

That makes some sense (and was probably why Nevada garnered so much "first" chatter in the first place).

But here's the thing: the DNC cannot signal to one important constituency (African Americans) that they are moving a state (South Carolina) to better calibrate their collective voice in the process and then take it back without some backlash. And that backlash would likely be far greater than the "concerns" that are quietly making their way around some parts of the broader Democratic Party coalition. 

Folks, this is politics. Any move, significant like this one or otherwise, is going to create perceived winners and losers. After all, there is already a burgeoning cottage industry speculating about what these calendar changes may mean for candidates in 2028! There are winners and losers in this calendar proposal and there is definitely backlash to the decision.

Look, it was clear in the immediate aftermath of the DNCRBC vote to adopt the president's proposal that there was opposition to South Carolina being granted the first slot on the 2024 primary calendar. And it has become even clearer in the time since that detractors of the plan are going to use the period between that December 2 vote and the February DNC meeting -- the one that will vote on ratifying the plan -- to gin up if not opposition, then an alternative. But so far all the opposition has done is throw stuff at the wall with the hopes that something will stick. Nothing has. And that is mainly due to the fact that those who stand in opposition to the proposal have yet to grapple with the realities of this process. 

It is fine to throw states out there that are more diverse or more competitive (in a general election) than South Carolina is. The DNCRBC has conducted a process over the course of much of 2022 that already did that. It considered all the states that the Biden proposal included. But one additional factor the DNCRBC weighed that is completely lacking in the sturm and drang of complaints thus far was feasibility. As in, how feasible is it that any given state is actually able to move into a particular slot? 

Georgia and North Carolina? Nope.

Nevada? As described above, maybe.

South Carolina? Definitely. 

And until detractors of the president's proposal wrestle with that reality, their complaints are never going to be taken seriously. 

--

There is a weak point to the president's proposal that many are missing. 

Another reason neither Georgia nor North Carolina are workable in the first position -- and The Hill piece speaks to this to some degree -- is how big and expensive each would be compared to past early states. Both parties still seem to value what the 2013 GOP autopsy called the on ramp to bigger states and multi-contest dates. Both parties continue to hold to notions of retail politics and the little guy having a chance to compete with those who have vast to near-unlimited resources.¹ And both Georgia and North Carolina would break with that principle. 

But if anything was slapdash about the calendar proposal that emerged from the December 2 DNCRBC vote it was not South Carolina, but the early cluster that was created by a compromise.

The initial proposal from the Biden team was different than what was voted on by the panel:

Tuesday, February 6: South Carolina

Tuesday, February 13: Nevada/New Hampshire

Tuesday, February 20: Georgia

Tuesday, February 27: Michigan

But because the Nevada primary was already scheduled for February 6 and prospects for movement away from that position dim, the compromise was to move the South Carolina primary to Saturday, February 3 and shift everything else but Michigan up a week. 

But that turned a plan that called for three small-ish state contests in eight days to three small-ish state contests in a four day span. That may seem like a minuscule difference, but it has the effect of creating a cluster of contests that equate to something akin to the Georgia or North Carolina in the first spot. And this was raised as a concern among DNCRBC members in the period before the vote was taken. Both Carol Fowler (SC) and Scott Brennan (IA) brought up how this cluster of contests sandwiched into a small window to start the calendar may negatively impact how well the party adheres to the value of giving all candidates a chance. 

That is no small thing and no doubt would impact candidate strategy and how the calendar winnows candidates. If anything happens between now and when the DNC votes on the proposal passed by the DNCRBC it may be to tinker some with that cluster of contests.² But it is more likely that South Carolina gets nudged a little earlier to account for the injurious impact the proposed cluster would have than being removed from the top slot altogether as detractors appear to want. 

That, and New Hampshire is likely to jump to the head of the queue anyway. But that is a story that will play out as 2023 progresses.

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¹ That may or may not be obsolete in an environment where invisible primary fundraising allows candidates to run practically everywhere even before Iowa and New Hampshire results have been factored into the equation. A small-time candidate would have an incredibly difficult game of catch-up to play if the plan is to initially rely on early wins -- either outright or relative to expectations -- to jumpstart a campaign. In other words, there has to be some measure of viability demonstrated before voting starts. [Incidentally, the Democrats' debate inclusion process in 2020 helped to repeatedly make that viability point as the invisible primary wound down.]

² One of the near certainties is that neither Georgia nor New Hampshire will meet the January 5 conditions to actually be granted a waiver to even be in the pre-window. That would have the effect of clearing out the beginning of the calendar to some extent.

--

Recent posts:

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Adjournment Kills Michigan Presidential Primary Bill

In the same week that the DNC Rules and Bylaws Committee (DNCRBC) met and adopted the proposal from President Biden to shuffle the early presidential primary calendar deck, the Michigan state Senate passed legislation that would shift the date of the presidential primary in the Great Lakes state up a month to the second Tuesday in February. 

The two were not directly connected. However, coming out of that week there were lingering questions about whether that bill would serve as a vehicle to move the primary into the position carved out for the state by the DNCRBC rules. There are now answers to those questions.

The outgoing, Republican-controlled Michigan legislature adjourned its lame duck session last week, killing all active legislation not acted upon in the state House and Senate, including the presidential primary bill. But the incoming, Democratic-controlled legislature will likely take up the cause and align the date of the presidential primary with DNC rules on February 27.

With unified Democratic control across the executive and legislative branches in Michigan there will be a bill put forward and likely quickly advanced. But the big question surrounding that effort in 2023 will be what the narrowly divided legislature will do with Republicans. A February 27 date for the presidential primary would conflict with Republican National Committee rules for the timing of delegate selection events. That means Republican legislators in the Great Lakes state will have to use what little leverage they have to advocate for split primaries -- a February 27 Democratic primary and a later, compliant Republican primary -- or face the prospect of having to hold a party-run contest after March 1. 

--

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New Hampshire Secretary of State Elected by General Court

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Nevada Holds the Key for 2024 Republican Presidential Primary Calendar

...for right now.

Much of the talk of late when it comes to the 2024 presidential primary calendar has focused on the Democratic side of the equation. It was, after all, the DNC Rules and Bylaws Committee (DNCRBC) that recently adopted a new calendar order that would break with the traditionally established alignment. The full DNC will not have an opportunity to vote to finalize those rules until its February meeting, but the states conditionally granted waivers have to show steps have been taken toward those dates by January 5, 2023. 

The processes will not be complete by then, but South Carolina Democrats will have a Saturday, February 3 primary. The state parties select the dates of primary in the Palmetto state. In Nevada, the presidential primary is already scheduled for the February 6 slot the DNCRBC has reserved for it (and was before the DNCRBC made its decision). And unified Democratic-controlled government in Michigan will mean that compliance in the Great Lakes state is likely forthcoming. 

Those are the known knowns. Each is locked into position (or will be) on the Democratic calendar. 

And that will have some impact on the Republican calendar as well. As will the unknown knowns. Iowa Republicans and the New Hampshire secretary of state will undoubtedly work around the fixed positions of those state contests to remain first in 2024. It just is not clear where either will end up when voting kicks off in little more than a year.

Part of answering that question, however, will be determined by the other two states in the Republican Party early state lineup: Nevada and South Carolina. It does not have to work sequentially, but if an Iowa to New Hampshire to South Carolina to Nevada order is to be preserved in the upcoming cycle on the Republican side, then Nevada will have the most decisive move with respect to where the remaining contests are scheduled on the calendar. 

Well, Nevada Republicans will anyway. The state party there in the Silver state has a decision before it. The path of least resistance -- not to mention the cheapest route for the state party -- would be to utilize the newly established state government-run (and funded) presidential primary. That would lock Nevada Republicans into the same February 6 calendar position as state Democrats and start a chain reaction in the remaining three states that would likely look something like this:

• Monday, January 8: Iowa Republican caucuses
• Tuesday, January 16: New Hampshire primary
• Saturday, January 27: South Carolina Republican primary
• Tuesday, February 6: Nevada primary

[South Carolina Republicans could opt to hold a primary that coincides with Democrats in the state, but that has not been the custom in the post-reform era, nor in the period starting in 2008 when the DNC officially added South Carolina to the pre-window. The same could be said of a Tuesday, January 23 date. That could happen, but again, the custom in the Palmetto state has been to conduct Saturday contests.]

Again, that is the cost-effective route for Nevada Republicans. But "cheap" may not be the only consideration. Recall that Republicans in the Nevada legislature were not onboard with the Democratic-led charge to establish a presidential primary in 2021. And the state Republican Party may eschew the contest and shift to caucuses as a result. That is, the likely electorate is another factor that may take precedence with decision makers within the state party. Or rather, the way that particular electorates may be perceived to affect the outcome in advance of the contest may weigh on decision makers (or be made to weigh on them).  

While the state party may (or may not) be indifferent to the caucuses versus primary matter, it could also be that the candidates (or some faction of them) prefer one to the other. Trump won the Nevada Republican caucuses in 2016 and may, for example, strategically prefer a smaller, more ideologically energized electorate in his efforts to not only win the contest, but take more delegates out of the Silver state. Trump, or candidates and their campaigns that are similarly inclined, may lobby the state party to move in one direction or the other. 

Regardless, going the caucus route would give the Nevada Republican Party some scheduling flexibility that does not currently exist with the state government-run primary. The caucuses would not have to be on February 6 or even before it. In fact, the party would have nearly the whole of February to work with in setting the date of the caucuses, from the Saturday after the primary, for instance, to the Saturday before Super Tuesday.¹ [And it would not have to be a Saturday, of course. Candidates and their campaigns may have strategic considerations in a Tuesday contest relative to a Saturday one. The Nevada Republican Party may too!]

The later the date Nevada Republicans choose for the (hypothetical) caucuses, the more wiggle room South Carolina Republicans would have as a result. Republicans in the Silver state could settle on something in the Saturday, February 17 to Tuesday, February 20 range and stay far enough ahead of the Michigan (Democratic) primary on the 27th. That would also allow South Carolina Republicans to schedule their primary for a spot after Palmetto state Democrats on Saturday, February 10. That would yield a calendar that looks something like this:

• Monday, January 15: Iowa Republican caucuses
• Tuesday, January 23: New Hampshire primary
• Saturday, February 10: South Carolina Republican primary
• Saturday, February 17 or Tuesday, February 20: Nevada Republican caucuses

None of the movement behind or up to the South Carolina Democratic primary on February 3 matters. It is immaterial to decision makers in New Hampshire. The secretary of state in the Granite state will select a Tuesday date at least seven days ahead of the next earliest similar contest. And that will be the South Carolina Democratic primary unless Republicans in the Palmetto state choose to hold their primary before Democrats there. And Iowa Republicans will choose a date eight days earlier than New Hampshire.

Nevada Republicans may hold the key to what happens next in the early calendar on the Republican side, but because of the way the Democratic calendar looks to start, there is not much of a range in where Iowa (Republicans) and New Hampshire will end up. ...unless Nevada Republicans opt to hold caucuses some time in January (which is not necessary).

The unknown unknowns at this point, before state legislatures have convened for their 2023 sessions, is what other states may do. As of now, there is no threat of calendar crashing on the horizon and the national parties have severe penalties in place to deal with states that may consider breaking into the area of the calendar before Super Tuesday on March 5.

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¹ Having the bulk of February with which to work depends on Georgia. While the Peach state was part of the group of five states that made it into President Biden's early calendar proposal, it does not appear likely that state Republicans (in the secretary of state's office) will be cooperative. 

--

Recent posts:

Iowa and New Hampshire Are No Strangers to Threats: The case of 1984 and what it may mean for 2024

New Hampshire Secretary of State Elected by General Court

Why South Carolina Got the Nod to Lead the 2024 Democratic Calendar

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See more on our political/electoral consulting venture at FHQ Strategies.  

Iowa and New Hampshire Are No Strangers to Threats: The case of 1984 and what it may mean for 2024

For those who closely follow presidential nominations, there are handful of things that everyone knows about them. Among them are that Iowa and New Hampshire always go first, both states jealously guard those respective positions, and, for some time in the Democratic Party process, both have become decreasing demographically aligned with the party's overall primary electorate. That last one is a new(-ish) element and is part of what has Iowa on the outside looking in, and New Hampshire likely to follow it, in the new calendar outline proposed by President Biden and recently adopted by the DNC Rules and Bylaws Committee (DNCRBC).

But guarding first-in-the-nation status is a reality that constantly keeps Iowa and New Hampshire under threat whether by ever-changing national party rules or by other states encroaching on their turf (or both!) in a given cycle. The 2024 cycle, then, is not the first time that those in Iowa and New Hampshire have had to stare down a long and difficult journey back to the top before voting starts. Some, in the wake of the newly rolled-out Democratic calendar outline, have been quick to raise 2008 as a case when the traditional first pair overcame the odds and ended up back at the front of the queue. Yes, in 2007 state governments -- legislators and governors -- in both Florida and Michigan pushed primaries in each state into January. Legislators in Florida first slotted the primary there into a January 29 position, and later in the year, the Michigan primary was scheduled for January 15. 

Those moves had the effect of disrupting the DNC plans to hold an expanded early window of four contests (instead of just two), none of which could be held before their respective dates below:

Monday, January 14: Iowa caucuses

Saturday, January 19: Nevada caucuses

Tuesday, January 22: New Hampshire primary

Tuesday, January 29: South Carolina Democratic primary

But the Florida and Michigan primary shifts had the effect of nudging Iowa and New Hampshire closer to the beginning of the year while Nevada held the line on January 19. South Carolina Democrats, to stay ahead of Florida as the first contest in the South, bumped their contest up to Saturday, January 26. But again, all four states were protected. Unlike Democrats in Florida and Michigan, those in Iowa, New Hampshire, Nevada and South Carolina had spots codified in DNC rules that each attempted to protect once the interloping states had crossed into the pre-window period (which at that point, meant contests earlier the first Tuesday in February).

And that is a good example of a threat to Iowa and New Hampshire. But it is not exactly the best historical example of a cycle that found the typical leadoff states pitted against the Democratic National Committee and its rules for delegate selection. To find such an example one has to go all the way back to the 1984 cycle, one that partially laid the predicate for some of the actions taken in 2008. 

The 1984 environment

Rules changes

After the Democratic Party fundamentally reshaped the way in which candidates were nominated for president after 1968, the party spent the 1970s tinkering with the rules by which those candidates were nominated. The 1984 cycle, the fourth since reform, was no different. This was the cycle after all that added superdelegates to the equation. 

But there were also changes to the rules regarding the timing of delegate selection events. The rule for 1972 and 1976 was that all primaries and caucuses were to be held within the calendar year of the presidential election. For 1980, the party added the so-called "window" rule. All contests were to occur in a thirteen week period between the second Tuesday in March and the second Tuesday in June. Exceptions were made then for any states that held contests in 1976 before that earliest point in the window. That not only exempted Iowa and New Hampshire in 1980, but a host of other caucus states. 

Coming off a loss in the 1980 general election, however, the DNC altered the parameters of that rule for 1984 even further. It specified for the first time the states that could hold contests prior to the second Tuesday in March, granting the New Hampshire primary a slot seven days before the opening of the window and the Iowa caucuses one 15 days before it. Furthermore, Charles Manatt, the DNC chair, signaled that the party would crack down on window violations in the 1984 cycle, warning that refusal to seat delegates from violating states was on the table. 

New Hampshire conflict

Of course, a problem arose. [They nearly always do.]

Granted, the rule change was mostly effective in ridding the early window of would-be rogue contests in 1984. Importantly, it cleared the Massachusetts primary and Minnesota caucuses from the pre-window. But a quirky legacy system in Vermont remained and proved problematic. Town meetings have always been scheduled for the first Tuesday in March. They still are. During that era, however, Vermont Democrats added a non-binding presidential preference vote to the proceedings as well. It was a straw poll that had no bearing on delegate allocation in the state. Allocation did not occur until the state convention in April. 

New Hampshire maneuvered around the straw poll in both 1976 and 1980, going one week earlier each time. But in each of those cycles, the secretary of state, acted not only in accordance with the 1975 law granting his office the ability to set the date of the primary (and keep it first), but consistent with the DNC rules for those cycles as well. 

Yet, the DNC rules were different for 1984. The beauty contest "primary" in Vermont was scheduled for the week before the second Tuesday in March opening to the Democrats' recognized window. And New Hampshire Secretary of State William Gardner viewed Vermont's presence on the date set aside for the New Hampshire primary by the DNC as a problem for him with respect to implementing the date-setting provision of the presidential primary law in the Granite state. 

This was already inflaming tensions between Democrats in the neighboring northeastern states and at the national party as early as January 1983, more than a year the voting began. Vermont's state chair said at the time, "If there is a problem, it is New Hampshire's."

But it was a problem for Democrats in more than just New Hampshire. Gardner's signal that the New Hampshire primary would fall on February 28 -- out of compliance with the DNC timing rules -- roiled Democrats in Iowa. If Vermont pushed the New Hampshire contest up a week from their DNC-designated position, then that primary would be held just a day after the slot set aside by the DNC for the Iowa caucuses. Legislators in the Hawkeye state responded in kind in the spring of 1983, changing state law and creating a New Hampshire-like buffer for the caucuses. Under state laws after that point, the New Hampshire primary would be scheduled by the secretary of state there for a week before any other similar event and Iowa's caucuses would end up eight days earlier than any other similar contest. 

All of this occurred before June 1983 when the DNC's Compliance Committee, the precursor to Rules and Bylaws, met to consider delegate selection plans from the state Democratic parties for the 1984 cycle. With the backing of DNC Chair Manatt -- who again, was adamant that the rules would be enforced in 1984 -- rejected all state plans that broke with the timetable for contests, including both Iowa's and New Hampshire's.

And those threats from the national party meant enough at that time that Iowa Democrats had second thoughts as the impasse with the national party stretched deep into the fall of 1983, barely three months out from the commencement of voting. A compromise emerged from a November 1983 state central committee meeting that set December 10 as a deadline for the Iowa Democratic Party's state central committee. If New Hampshire had not shifted its primary into compliance with DNC rules by that point, then the caucuses in Iowa would proceed on February 20 (instead of the rules-based February 27 date). The rationale was that if the DNC eventually let New Hampshire slide, then Iowa would be in the clear as well. 

The courts get involved

December 10 came and went with no changes from New Hampshire, and that seemed to lock both states into the non-compliant dates for 1984. But the fear that Iowa's delegation would not be seated at the national convention had extended from some quarters of the Iowa Democratic Party (IDP) to the campaigns themselves. Charles Gifford, a member of the IDP state central committee and two state co-chairs of former Vice President Walter Mondale's campaign brought suit against the state party to prevent it from conducting a non-compliant contest on February 20 and reinstate the February 27 date.

However, the state party along with the campaigns of John Glenn and Alan Cranston argued that changing back to the February 27 date would create "irreparable harm" for the candidates because of the investments of both time and money each campaign had made in Iowa. 

Not only was this a political conflict between representatives of three campaigns for candidates involved in the 1984 Democratic nomination race, but it indirectly raised a conflict between the state law in Iowa and the national party rules. The decision in the case conceded that the Iowa Mondale representatives were "entitled to relief" but that that was "outweighed by the irreparable harm that changing the rules of the presidential nominating process [in Iowa] at this late date may have."¹

It was the timing that mattered. That the date impasse lasted nearly into 1984 and additionally that the campaigns had already invested based on a particular calendar were factors that ended up carrying the day in court. And it is that sort of timing issue that tends to catch up with national parties in this process. Enforcement of the rules -- if they rise to a delegation not being seated at a convention -- come at a point at the end of primary season when the party is shifting toward unifying with general election victory in mind. That is why the DNC conceded in May 1984, agreeing to seat both states' delegations at the convention.

That was the precedent set in 1984, and what actors in both Iowa and New Hampshire banked on in 2008. Once again for 2008, the DNC had carved out particular positions for not only Iowa and New Hampshire, but also Nevada and South Carolina. And technically, Iowa, New Hampshire and South Carolina all broke the rules for 2008. But each did so to protect the order the DNC had laid out for the nomination to progress; an order disrupted, in part, by Democrats in Florida and Michigan. Each avoided sanction. And in the end, on the eve of the Denver convention, the Florida and Michigan delegations were reinstated in full as well.

What 1984 may mean for 2024

Clearly there are some similarities. Just like in the 1984 cycle, Iowa and New Hampshire perceive some threat in the proposed calendar changes to their privileged status as lead off states in the presidential nomination process in 2024. And timing matters too. Past actions have indicated to decision makers in both states that the national party is likely to fold in the interest of general election unity in the end anyway.

But 2024 is different. 

The proposed rules are different. Iowa is no longer protected at all. And New Hampshire has more specifically been assigned to a position that conflicts with its state law. Or rather other states have been protected -- and placed ahead of or alongside the New Hampshire primary -- in the proposed DNC rules with no regard for that state law (or with a probably futile eye toward attempting to change it). This is not a situation like Vermont in 1983. This is the national party codifying a different order, and in the process creating a different starting point for this exercise than has existed in any other cycle in the post-reform era. 

There is a certain latitude that Iowa and New Hampshire have always operated under prior to this cycle. And the rationale is simple enough. It came out in the late 1983 discussions in Iowa and was a part of the lore of both 1984 and 2008. Essentially, it comes down to "if the national party protected us as the first contests, then it will not matter if we make moves to insure the order they wanted."

Look, Iowa and New Hampshire will be first in 2024. ...in the Republican process. Iowa Republicans will schedule early (likely January) caucuses and the New Hampshire secretary of state has already promised to do likewise to protect the status of the presidential primary in the Granite state.

The question is whether the state Democratic parties break and seek alternate means of allocating delegates under the pressure of the national party penalties and candidate deterrents designed to keep candidates away and off the ballot. This, of course, will be greatly affected by whether President Biden opts to throw his hat back into the ring and seek renomination. 

Should the president run largely unopposed, then Iowa and New Hampshire Democrats are stuck; stuck between state law and national party rules. However, in Iowa that same state law that creates an eight day buffer between the caucuses and any other contest still empowers the state central committees of the parties to schedule those contests. And in both 2008 and 2012, Iowa Democrats selected dates that were fewer than eight days before the New Hampshire primary without any penalty. There is no penalty for breaking the state law. That is true in the Granite state as well. There is no penalty for breaking state law there either. But in contrast, the New Hampshire secretary of state controls the selection of the primary date and not the state party, leaving the party to find some alternative should it opt out of the primary.

Early reviews for 2024, however, from both Iowa and New Hampshire Democrats has been mostly negative and the tone struck, defiant in the face of the proposed rules changes. 

But the lesson of 1984 may not be in what has come to be an on-again-off-again struggle between the earliest states and the national party. Instead, the lesson may be in potential legal remedies if those with standing move quickly. Remember, the challenge to the earlier 1984 caucus date in Iowa played out between campaign proxies of one candidate on one side and a state party with opposing candidates as intervenors on the other. 

If Iowa and New Hampshire Democrats remain defiant into 2023 and if Biden opts to run -- relevant IFs -- then Biden proxies in Iowa and/or New Hampshire (if there are any left) could bring suit against the state parties, arguing that supporters of the president from those states run the risk of being shut out of the national convention. In other words, because of the non-compliant contests, both states gamble that their delegations will either be reduced or not seated.

Admittedly, that is quite a few steps down the line. And if Iowa and New Hampshire are serious about protecting their first-in-the-nation status -- which they are -- then neither will have official contest dates until far later in the year.  That appears to once again push this exchange between the national party (or national candidates) and those on the state level to a point that is once again close to when voting begins; a point in the timeline in 2023 when other candidates may have entered the race and already invested heavily in those two states. 

But there may not be other candidates. There may not be other candidates who are willing to expend resources in a couple of states that stray from the DNC rules. 

Even before that, however, there are processes in place. Democrats from both Iowa and New Hampshire will have to submit delegate selection plans to the DNCRBC by early May 2023. That process will document either the state parties' continued defiance or that they will stand down and follow the rules. Continued defiance -- a documented non-compliant date in a proposed delegate selection plan -- would mean that Democrats from both states would find themselves with a rejected plan likely in June. 

With the state parties on record and a plan rejected, interested Democrats in the two states -- whether for the president or not -- may move legally to compel the state parties to hold compliant contests for fear of being disenfranchised in the process without one.

They could.

But again, that is long way down the road. The DNCRBC wants to break the will of Iowa and New Hampshire Democrats. Actually, the panel and the party just want states to follow the rules. But they are unlikely to get that. Instead, they will have to lean on penalties designed to compel state cooperation. That may not work either. But if the president runs for reelection as expected and runs unopposed or largely unopposed for the nomination, then that may not mean the temperature gets turned down on this as it otherwise would in an uncompetitive environment. It may mean that the party ratchets up the tension with the state parties to set a new precedent for 2028 and beyond. 

The first step of that is in place. And unlike 1984, Iowa and New Hampshire do not have the same protections in DNC rules for 2024.

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¹ Information in The 1984 environment section leans on work in Hugh Winebrenner's essay, "Defending Iowa's First-in-the-Nation Status -- The 1984 Precinct Caucuses" from the Annals of Iowa (1986).

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New Hampshire Secretary of State Elected by General Court

The first Wednesday of December after an election marks organization day in the New Hampshire General Court. Part of that process is the selection of a secretary of state by a joint session of the state Senate and House.

And on Wednesday that meant the General Court was to choose someone other than former Secretary of State Bill Gardner (D) for the first time in nearly half a century. Gardner stepped down from the post this past January and was succeeded by his deputy, David Scanlan (R). Consequently, this was Scanlan's first time standing before the General Court for a formal election. And he faced a challenge from Democrat Melanie Levesque.

In a bipartisan vote of 237-175, Scanlan was elected for a full two year term, and will now be tasked with continuing the job Gardner was most known for both at home and nationally: protecting the first-in-the-nation status of the presidential primary in the Granite state. 

Scanlan will, no doubt, follow the state law which empowers him to schedule the state's presidential primary seven days before any other similar contest just as his predecessor did. However, the newly elected secretary will face headwinds unlike those Gardner had to stare down during his 45 years at the helm. With national Democrats nudging New Hampshire back in the order, both parties are no longer aligned in viewing viewing -- and protecting -- the state's contest as first. 

Scanlan has already vowed to keep New Hampshire first. 

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But it probably won't be the secretary (or the primary) that pays the price in 2024. Instead, New Hampshire Democrats may bear the brunt of the fallout from a primary scheduled for a date earlier than February 6, the date on which the DNC plan places the contest. But that showdown between the DNC and the New Hampshire Democratic Party will play out in 2023-24. Before the secretary even makes a decision on the date -- likely during the latter half of 2023 -- New Hampshire Democrats... 

...must meet [conditions] to successfully gain a pre-window waiver from the DNCRBC [that] are collectively a tall order. The state party has to submit to the committee by January 5, 2023 letters from the New Hampshire governor, the New Hampshire state Senate majority leader and the New Hampshire state House majority leader -- all Republicans -- pledging to make all necessary statutory changes to 1) cement the February 6 primary date and 2) implement no excuse early voting. For a variety of reasons, none of those letters from Granite state Republican leaders is likely to be forthcoming by January 5 of next year or any time ever. And that makes the next condition even more unpalatable to New Hampshire Democrats. The new DNC regulations require that all those changes be made -- as in finalized -- by February 1, 2023. That is a recipe for New Hampshire Democrats losing their waiver. 

All of this occurs before New Hampshire Democrats have to submit a draft delegate selection plan along with all other states and territories to the DNC Rules and Bylaws Committee (DNCRBC) by early May 2023. Each of those points will offer Democrats in the Granite state an opportunity to work with the committee and each of those moves (or non-moves) along the way will likely factor into how the DNCRBC treats the state with respect to penalties as the 2024 cycle progresses.

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Why South Carolina Got the Nod to Lead the 2024 Democratic Calendar

It has been a while since the national parties have either allowed states other than Iowa and New Hampshire to go first on the presidential primary calendar or have failed to expressly protect the traditional first pair in their rules. 

In fact, the entire post-reform era since the 1972 cycle has operated that way in both parties' processes. Now, to be clear, states have challenged Iowa and New Hampshire throughout that period, but the two have always been able to maneuver around those threats on their own -- banded together in first-in-the-nation solidarity or individually -- or in recent years, have kept their spots, protected by national party rules. 

That has changed.

The decision by the DNC Rules and Bylaws Committee (DNCRBC) late last week to adopt the proposal put forth by the president stripped Iowa of its position and effectively/indirectly did the same to New Hampshire. Instead of the usual two states at the front of the queue, South Carolina got the green light to move up from the fourth and final spot in the pre-window -- the one that the Palmetto state has held in the Democratic nomination process since the 2008 cycle -- all the way up to the top slot. 

President Biden's late input on the DNCRBC process to award waivers to four or five states to lead the 2024 calendar upset the emerging consensus that Nevada and New Hampshire were the states vying for the honor of going first. The proposition also set off a flurry of chatter that South Carolina received the prized spot because the state had rescued his primary campaign in 2020 and/or that it was meant as a favor to Rep. Jim Clyburn (D-SC, 6th), whose endorsement appeared instrumental in the days leading up to the late February primary in the Palmetto state. That all may be, but it is not anything that is foreign to this process. Incumbent presidents tend to support the rules -- calendar and otherwise -- that got them to the nomination, and Biden has done just that, at least in part. 

Is that intended to insulate himself against a primary challenge? Again, that would not be a foreign concept. Jimmy Carter's team nudged state legislators in several states -- notably in the South -- to shift their primaries to earlier dates during the 1980 cycle to counter expected (Ted) Kennedy wins in the northeast. And just last cycle, the Trump campaign leaned on a number of states to shift from primaries to caucuses (or to cancel contests altogether) in order to produce electorates likely to minimize or eliminate any opposition success.

The only catch in the 2024 discussion is that there is no looming (and legitimate) challenge to Biden on the horizon. Of course, there is plenty of time for that to change and besides, the president may -- although it does not appear that way at this time -- pass on a reelection bid.

Nonetheless, the South Carolina ascension has "reignited tensions" in the Democratic Party that has some crying foul. And at least some of that is based on the perceptions that some of the above historically consistent actions by incumbent presidents are now wrong in some way. Others have pointed to the Palmetto primary as a poor lead off contest because the state is a virtual lock for Republicans in the electoral college. 

That criticism is all entirely fair. 

But is also overlooks some of the very real and practical reasons that South Carolina ended up first in the proposal. 

To examine this further, let's look at the DNCRBC's own criteria for states to attain an early window waiver. Early on in the process before applications for waivers were submitted, the DNCRBC highlighted diversity, competitiveness and feasibility as markers the panel would use in considering states for potential waivers.

Diversity

South Carolina hits the mark for the most part on diversity. That African Americans comprise a majority of the primary electorate there was clearly something the committee and the president prized as a component of raising minority voices in the process. That is basically why the state was added to the early state lineup for 2008. The state is a nice mix of urban, suburban and rural as well, and is also relatively economically diverse. However, South Carolina is a right-to-work state, which is a knock on the state in a party that values unions/labor interests. Finally, South Carolina is a southern state and has been the lone representative from the South among the first four states since 2008. 

Let's pause there because South Carolina is not the only southern state from which the DNCRBC could have chosen. And, in fact, the committee also designated neighboring Georgia to also appear in the pre-window. But this factors in elsewhere.

Competitiveness

Nope, South Carolina is not a competitive general election state for Democrats. Organizing there for the primaries and not simultaneously preparing for the general election seems like something of a sunk cost (or at the very least an inefficient use of finite resources). That is why the committee had targeted competitive states. So South Carolina does not fit the bill there. 

Feasibility

If one looks at the checklist above, South Carolina has a couple of checks by racial diversity and regional diversity (across the whole lineup of early states). That is neither an exhaustive nor overwhelming list of positives in the favor of South Carolina Democrats. But recall that the primary reason driving the DNCRBC decision in July to punt on the final early calendar lineup until after the midterms was that state were still working on “answering several final but critical questions regarding election administration and feasibility in their states.”

So, to return to the question from above, why South Carolina and not some other southern state? Feasibility.

There are roadblocks in the way of the DNRBC adding another southern state other than South Carolina. Much of it has to do with partisan composition of state government. Republicans dominate most states in the region and have an interest in following RNC rules that forbid states other than Iowa, New Hampshire, South Carolina and Nevada from holding contests before March 1. 

Here's how that looks (based on what entity makes the decision on the date and administration of a primary election):

Alabama: unified Republican control of state government

Arkansas: unified Republican control of state government

Florida: unified Republican control of state government

Georgia*: Republican secretary of state

Kentucky: Republican legislature

Louisiana: Republican legislature

Mississippi: unified Republican control of state government

North Carolina: Republican legislature

Oklahoma: unified Republican control of state government

South Carolina*: state parties select the date for their own state government-run (and funded) primary

Tennessee: unified Republican control of state government

Texas*: unified Republican control of state government

Virginia: Republican governor

West Virginia: unified Republican control of state government

*States among the 20 states and territories that actually applied for a waiver from the DNCRBC.

Very simply, South Carolina is maximally maneuverable in the Democratic process compared to all of the other southern states, much less those that applied. 

That maneuverability also likely played a role in South Carolina getting the call over another diverse state that had high hopes of vaulting to the top slot, Nevada. Again, South Carolina Democrats, under state law, can move to a position on the calendar of their choosing with no input from Republicans who control the state government there. 

The midterms changed the calculus in Nevada. The formerly unified Democratic government in the Silver state became divided when Republican Joe Lombardo won the gubernatorial race in November. That meant that Nevada was most likely stuck with the February 6, 2024 date for its newly established presidential primary. Democrats could not move it earlier because Lombardo would not be inclined to take on possible RNC penalties. Ironically, the switch to a primary that was seen as a feather in the cap of Nevada Democrats in this waiver process came back to haunt them. Under a caucus system like the state had in 2020, Nevada Democrats would have been much better able to move around to suit any date the DNCRBC may have placed them in (...although the committee, the president and the party as a whole have largely rejected caucuses in the Democratic nomination process).

In the end, political favoritism may have played some role in the South Carolina Democratic primary rising to the top, as did diversity, but feasibility was also a major, major component in the reasoning behind the move. 

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