Arizona, Presidential Primary Calendar Chaos, and the Rules

The newly emerging conventional wisdom coming out of the Friday news that Arizona Governor Jan Brewer would not detonate the strategically placed bomb she had placed on the 2012 presidential primary calendar the Republican National Committee had gone to great lengths to construct post-2008 is that the calendar will now be less chaotic. At the very least, it will be less chaotic in terms of finalizing the calendar over the next month or so without a January 31 Arizona presidential primary "forcing" the early four states (Iowa, New Hampshire, Nevada and South Carolina) and Florida into January as well.

But to that post-Arizona conventional wisdom I say, "Not so fast, my friend!"¹ The reason FHQ says that is not so much that we are attempting to fan the flames of the dying December 2011 start to primary season. [The chances of that were already low prior to Friday, and shrunk even more after Brewer's press release.] Rather, as is FHQ's custom, we would like to shine the spotlight once again on the rules. Yes, the calendar may be safe from the chaos of a 2011 start, but the remaining calendar decisions and the finalizing of the calendar itself may not be as orderly as has been portrayed in some accounts over the weekend.

Yes, but what about the rules?

Suddenly, we are hearing an awful lot about October 1. And to be sure, FHQ has been a part of that for a while now. October 1 is the deadline by which states must have set in place their plans for allocating delegates in the Republican presidential nomination race next year. That is a deadline that requires, among other things, the date on which delegate allocation is to occur or begin. In other words, the RNC wants to have an idea about what is going on in 2012 approximately three months in advance of primary season commencing.² That's understandable. It is, after all, the national party's nominating process.

It's funny though. So much of what has been written outside of this space about the calendar has been about how some states are weighing whether to accept delegate reduction penalties and hold early, non-compliant primaries and caucuses as a means of either maximizing their levels of candidate/media attention or influencing the nomination process. However, now that Arizona has backed off of the January 31 primary date, everyone is talking about October 1.

But why? Why are folks assuming that potential rules-breaking states would consider breaking the timing rule but not the deadline for setting a date? Part of it is statutory. Florida's new Presidential Preference Primary Date Selection Committee has to make a decision by October 1 according to the newly enacted election law in the Sunshine state. The proposed plan in Michigan also sets that date as a deadline by which the Republican governor, speaker of the House, and majority leader in the Senate must have chosen some date in the February 28-March 6 window. And even Jan Brewer has to make a final decision by then if she is to move the Arizona primary up by even a day. After October 1 she will have crossed the point at which she even has power to move the date. The governor has to give elections officials 150 days notice of when an earlier primary is to be held and that buffer pushes all the way to February 28 -- the date on which the Arizona primary is currently scheduled on October 1.

Election law aside, however, what is to prevent other states who are considering breaking one rule (the rule on the timing of primaries and caucuses) from breaking another rule (the deadline for having a delegate selection plan in place)? Why should anyone be confident that that will occur?

Well, in truth, we probably should not be all that confident that that will occur. We shouldn't assume that everything will fall in line with the calendar by then anyway. Now, the calendar may be set by October 1, but it may not be.

That leaves us with a couple of important questions.

1. Is there any precedent for states ignoring the deadline by which delegate selection plans are to be in place?
2. More importantly, what has been and what is the penalty for breaking this rule?

To answer the first question, you really don't have to go back any further than the 2008 cycle. The rules passed at the 2004 Republican National Convention to govern the 2008 presidential nomination set the deadline for delegate selection plans to be in place by the first Tuesday in September in the year before the presidential election. Given those rules, there would be 14 states -- Alaska, Florida, Georgia, Iowa Maine, Michigan, Missouri, Nevada, New Hampshire, New Jersey, North Dakota, South Carolina, Washington and Wisconsin -- with undecided primary and caucus dates and thus in violation of the 2008 RNC delegate selection rules if they were being used in 2011-12. The first Tuesday in September 2011 is tomorrow. Fortunately for those 14 states, the RNC lengthened the decision-making window to October 1 for the 2012 cycle. In 2007, though, there was a flurry of activity prior to the September 4 deadline. The legislation to move the Michigan primary to January 15, 2008 was signed into law on September 4.³ South Carolina Republicans made their decision to hold a January 19, 2008 primary on August 9, 2007. For various reasons, though, Iowa and New Hampshire held out longer. Iowa Republicans made their decision in mid-October. Bill Gardner set the New Hampshire primary for January 8, 2008 on the day before Thanksgiving 2007. Those were the only two states to set dates after the September 4 RNC deadline four years ago, though.

And what fate did they suffer?

Well, as has become customary, Iowa and New Hampshire led off the presidential nominating process in 2008. Tough, right? Granted, New Hampshire lost half it's delegation to the 2008 Republican National Convention and Iowa only avoided that same penalty -- the same any other states in violation got -- by not allocating delegates in the first step of their caucus/convention process. But neither state seemingly paid any price for having waited out the other states and past the September 4 deadline.

FHQ does not have access to the 2008 RNC delegate selection rules produced at the 2004 convention, but we can look at the relevant sections of the 2012 rules and look at what states that wait past October 1 will have in store in the way of penalties. Rule 15.c.12 provides for no penalties for extending the decision on the date and other rules governing the delegate selection process in the states. Instead the rules state that the de facto move in that instance is to fall back on the method and date used in the immediately prior election.

Uh oh.

Now, scroll back up and look at those 14 undecided states again. Then go look at the 2008 presidential primary calendar. If the default is to revert to 2008 dates, then every last one of those 14 states will have either January or February primaries and caucuses. None of them would be compliant. That is not a winning proposition for the RNC. That said, the reality is that Arizona, Florida, Georgia and Michigan are the only real threats to Iowa, New Hampshire, Nevada and South Carolina. That's eight of the fourteen states right there. The latter four we expect to hold out until the other states have decided. That's a given. Of the remaining four, three (Arizona, Florida and Michigan, as described above) have or could have statutory requirements in place to force a date decision by October 1.

That leaves Georgia. Georgia Secretary of State Brian Kemp, recently entrusted by the state legislature with the authority to set the presidential primary date, has no such deadline. Well, Kemp has a deadline, but it is December 1 and not October 1. The secretary can stretch this out a bit further, if need be, and play a game of brinksmanship with Iowa, New Hampshire, Nevada, South Carolina, the RNC and the primary calendar if he wants to. He has already said that he would be willing to hold out on a decision until Iowa and New Hampshire have made their decisions.

In other words, don't necessarily buy into this new October 1 conventional wisdom. States may make primary and caucus date decisions after that point, but the list is limited to the first four states and Georgia. However, keep in mind, those five states would not suffer any direct penalties for waiting.

And who's to say they won't?

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¹ With college football back upon us, Lee Corso references should skyrocket.

² That assumes that the Iowa caucuses happen on the February 6 date that is assumed to be the starting point. Again, that date is a Democratic National Committee construct. The RNC has stipulated in its rules that Iowa, New Hampshire, Nevada and South Carolina are to be the only states that can hold delegate selection events in February. The rules do not specify dates in the same way that the Democratic Party has. [Yet most of the press continues to talk about the tentative February 6 date for Iowa, the February 14 date for New Hampshire, the February 18 date for Nevada and the February 28 date for South Carolina. Iowa and Nevada Republicans have gone along with that framework. Each has already said that they would utilized February 6 and 18, respectively. But to call any date tentative for New Hampshire and South Carolina is misleading. Assuming Iowa and Nevada hold caucuses on those dates listed above, then yes, New Hampshire would likely fall on February 14. New Hampshire Secretary of State Bill Gardner has said very little on the matter, though. And to assume anything other than the reality that New Hampshire will set a firm date when all the other states, save perhaps Iowa, have decided when to hold their primaries and caucuses is a false premise. Likewise, South Carolina Republicans have uttered nary a phrase about when they will hold their primary. Given the efforts by some states to squeeze into the February 28-March 6 window, South Carolina Republicans may opt not to observe the February 28 date that is so often cited.]

³ Keep in mind that the Democrats had an active nomination race in 2008 as well. The DNC had a deadline for finalizing delegate selection plans in 2007, but it differed from the RNC deadline. Instead of September 4, the DNC had a deadline of September 16. That both parties had active and competitive nomination races in 2008 added an extra layer to the jockeying for position in 2007. First of all, there was an urgency to move as early as possible. But it also added to the finalization of the process at the end as the last few states made their decisions on when to hold primaries and caucuses.

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