Thoughts on Where the 2016 Presidential Primary Rules Stand, Part One

Way back in August 2012 -- in the midst of the Republican National Convention -- FHQ promised to revisit the proposed or final Republican rules. Granted, we did not get access to the 2012 Rules of the Republican Party -- the rules that will govern the 2016 nomination process -- until about two weeks ago, so FHQ did not have the opportunity to comment in full on what emerged from Tampa.¹

...until now.

However, rather than deal with just the Republican rules, FHQ will examine the state of the 2016 rules across the two parties in a two part post. Most, but not all of the news on this front is coming from the Republican side, but that is mainly a function of the GOP having to address the bulk of their rules at the preceding convention (...as mandated by, well, the party's rules). I'll use the second post as a platform for discussing the collective implications of both parties' sets of rules on the 2016 process.

The key thing concerning the development of the 2016 RNC rules coming out of Tampa was the addition of one rule in particular, Rule 12:

Amendments:The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2014. 

Now, if you will recall, the rules handed down from the 2008 Republican National Convention in St. Paul empowered a panel -- the Temporary Delegate Selection Committee (a group to be mostly selected by the RNC chair) -- to examine the party's delegate selection rules and make recommendations for rules changes to the full RNC membership. This was the group that delivered the proportionality requirement and the calendar requirement changes that better aligned with the Democratic Party rules.

FHQ has detoured to 2008 as a means of pointing out the differences the party has in changing its rules between conventions for 2016 as compared to the 2012 cycle. While the Temporary Delegate Selection Committee did not have carte blanc to alter the rules adopted in St. Paul, the body was uniquely empowered and had the full weight of the national party chair behind it. That is not to suggest that Rule 12 above does not, but the ability to change the rules after the convention is more constrained ahead of 2016 than they were for 2012. And the bar for affecting any changes is much higher. It requires a majority of the Republican Rules Committee to agree on the alterations and then a three-quarters supermajority of the full 168 member RNC to enact the change(s).

In practice, that likely translates to some relationship between the scope of change and how likely said change is to pass the full RNC. Stated differently, controversial changes would be more difficult to ram through than less substantive corrections that might apply to language or punctuation within the rules. Again, change can occur -- even potentially controversial change -- but the trick is going to be getting the requisite number of votes.

We start with that rule because the following rules discussion will be based on rules that could be changed prior to September 2014. And truth be told, do not expect any wholesale changes. But let's have a look at how the rules and penalties regarding the timing of delegate selection events and the method of allocation stack up for 2016 relative to 2012.²

Timing
Then (2012): Rule 15 (b):

(1) No primary, caucus, or convention to elect, select, allocate, or bind delegates to the national convention shall occur prior to the first Tuesday in March in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may begin their processes at any time on or after February 1 in the year in which a national convention is held and shall not be subject to the provisions of paragraph (b)(2) of this rule. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(1) No primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention shall occur prior to March 1 or after the second Saturday in June in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may conduct their processes no earlier than one month before the next earliest state in the year in which a national convention is held and shall not be subject to the provisions of paragraph (c)(2) of this rule. 

Implications:
Looking at the changes, there is not a whole lot there; nothing more than subtle changes.

The "other processes" addition provides the RNC with some cover should state parties attempt to circumvent the rules with, say, a hybrid allocation process similar to the primary-caucus Texas Democrats use (the so-called Texas two-step). Any step that has any direct bearing on the election, selection, allocation or binding of delegates is covered under the rules.

The "March 1 or after the second Saturday in June" addition -- replacing "first Tuesday in March" -- is also not a significant change. March 1 is the first Tuesday in March in 2016. The insertion of the second Saturday in June clause merely brings the Republican window in line with the Democratic Party window in which contests can be held. This helps the party avoid the "Utah primary on the last Tuesday in June" problem and gives the party some extra time to certify and credential delegates to the convention. [It should be noted that there has been some talk within the RNC about holding an earlier convention in 2016, instead of holding one in August. This move provides the party with a little extra cushion to fulfill the above activities before the convention, should it actually occur earlier.]

The biggest change in this rule is the "no earlier than one month before the next earliest state" portion that applies to the scheduling of the four carve-out states. But even that is pretty limited in scope and only really bows to the reality of the calendar process over the last couple of cycles. That one month time span, if you look at the calendars from 2008 and 2012, seems like (about) the requisite amount of time for Iowa, New Hampshire, South Carolina and Nevada to schedule their contests. This rules change just puts that potential scheduling on something of a sliding scale. If, for instance, the Missouri primary does not budge from its current February 2 date, then Iowa, New Hampshire, South Carolina and Nevada could not hold a contest earlier than January 2 (or earlier than January 4 or 5 if Iowa and New Hampshire respectively wanted to keep their contests on their traditional Monday or Tuesday positions). If Missouri moves, the Arizona and Michigan become the problems at the end of February. That would mean a potential end of January beginning to the calendar -- an improvement over 2008 and 2012.

All in all, there is not too much groundbreaking stuff here. The carve-out states gain some potential leeway, but only under certain circumstances: if the next earliest state goes earlier than the first Tuesday in March.

Allocation
Then (2012): Rule 15 (b):

(2) Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held, shall provide for the allocation of delegates on a proportional basis. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(2) Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to April 1 in the year in which the national convention is held may provide forthe allocation of delegates on a proportional basis. 

Implications:
Subtle is the word in Rule 16 (c) (2) as well. However, the impact as of now is pretty great. But FHQ will get there.

Changing meeting to processes and then including the actions being regulated is loophole protection and nothing more. That is the same as was the case in Rule 16 (c) (1).

That is true for the change from first day in April to April 1. There is no substantive change there.

However, the switch from "shall" to "may" is hugely consequential. As it stands now -- with "may" in the rule -- state parties are not forced to be proportional if those states hold contests prior to April 1. Rather, those states have a proportional allocation of delegates as an option. This is actually pretty big. It negates the need for the enforcement mechanism specified in Rule 17. It is also something that the RNC is aware of and a change to "shall" is under consideration by the Republican Standing Committee on Rules. [FHQ will circle back to this a little later on.]

Before we move on to the penalties in Rule 17, let me draw your attention to one other change to Rule 16. You will  have noticed that the relevant Rule 15 (2012) rule is subsection (b) whereas the same section in Rule 16 (2016) is subsection (c). That is due to the addition of a subsection (a) to Rule 16. Here is that rule:

Rule 16 (a):

Binding and Allocation.(1) Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters.

(2) For any manner of binding or allocating delegates under these rules, if a delegate (i) casts a vote for a presidential candidate at the national convention inconsistent with the delegate’s obligation under state law or state party rule, (ii) nominates or demonstrates support under Rule No. 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or (iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the national convention for a particular presidential candidate, the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the secretary of the convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates. 

I'll spare you the highlighting here and mention that you do not get too far into reading the above rules without realizing that they are part of the rules-related reaction to the Paul campaign delegate strategy in 2012.

Subsection (1) addresses the caucus shenanigans. The attempt here is to make the first statewide step of a caucus (or any other contest) binding in terms of the ultimate allocation of delegates. This presumably does away with the confusion over how delegates in those January and February 2012 caucus states like Iowa, Colorado, Maine and Minnesota are counted/allocated. In other words, no more waiting until the convention to determine (or to hope to finally determine) which candidate the delegates are actually supporting at the convention. This is a good thing for the national party and the candidates (in terms of having a firm running tally of delegates within the context of an evolving campaign), but has not been greeted with enthusiasm by state parties that see this change as an infringement on their ability to determine their own method of delegate allocation. The rules are always about trade-offs among the various interests involved.

In subsection (2), the intent is to account for the enforcement of the binding mechanism discussed in subsection (1) and later in the rest of Rule 16 (discussed above). This rule helps the RNC to avoid the "bound to Romney but really a Paul supporter" loophole that was discussed in the lead up to the Tampa convention. Under this provisions of this rule, bound means bound. And either the delegate votes according to how they are bound or they are removed and the delegate's vote is recorded as if the delegate had voted in accordance with how they were bound. The bottom line is that this in tandem with the changes to Rule 40 sets in stone the convention vote for nomination ahead of time.³ Again, this is a loophole closing action that the RNC wanted but the Paul folks at the convention were not too keen about.

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Broadly speaking, the above are the "rules" that affect the responses of state parties' delegate selection plans. The following are the "penalties" portion of the rules if states violate any of the provisions in Rule 16.

Enforcement of Rules
Then (2012): Rule 16:

(a) If any state or state Republican Party violates The Rules of the Republican Party relating to the timing of the election or selection process with the result that any delegate from that state to the national convention is bound by statute or rule to vote for a presidential nominee selected or determined before the first day of the month in which that state is authorized by Rule No. 15(b) to vote for a presidential candidate and/or elect, select, allocate, or bind delegates or alternate delegates to the national convention, the number of delegates to the national convention from that state shall be reduced by fifty percent (50%), and the corresponding alternate delegates also shall be reduced by the same percentage. Any sum presenting a fraction shall be increased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternates. 

Now (2016): Rule 17:

(a) If any state or state Republican Party violates Rule No. 16(c)(2), the number of delegates and the number of alternate delegates to the national convention from that state shall each be reduced by fifty percent (50%). Any sum presenting a fraction shall be decreased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternate delegates. If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state, and the corresponding alternate delegates shall also be reduced to nine (9). 

(b) If any state or state Republican Party violates Rule No. 16(c)(2) of The Rules of the Republican Party, the Republican National Convention shall provide for the allocation of the selected at large delegates (excluding members of the Republican National Committee) among the candidates who received more than 10% of the votes cast in such primary, convention or caucus in accordance with and in proportion to the votes cast for each such candidate as a part of the total of the votes cast for all such candidates in that primary, convention, or caucus. 

Implications:
There is a lot here. So, buckle up and let's have a look around.

The first thing to note is that a second subsection has been added to the 2016 rules that did not exist in 2012. That is with good reason. If you will recall, the 2012 rules ran into a problem when Arizona and Florida not only broke the timing rules but the allocation (proportionality) rules as well. There was no provision in the rules in 2012 that applied any penalties to more than one penalty. In other words, once the rules were broken, they were broken. However, states were not necessarily being treated equally in that instance (not that that was the goal). The same 50% delegation reduction was applied to any state that broke one rule as they were states that broke more than one of those rules. There was no provision for a second penalty and as the RNC noted in the midst of primary season there were to be no double penalties. There was nothing in the rules to account for either.

The changes to the 2016 enforcement alter that dynamic by adding a specific penalty for a specific violation. According to subsection (a), states violating the proportionality requirement -- assuming that "shall" is reinserted in Rule 16 [see above] -- receive the 50% reduction that was standard in 2012. Florida, for instance, would have been reduced from 99 delegates to 49 for having stuck with a straight winner-take-all allocation of delegates.

There are a couple of additional notes to make about the proportionality requirement while we are on the subject.

1. Notice that Florida was reduced from 99 delegates to 49 delegates. If you recall the penalty that was actually levied against Sunshine state Republicans in 2012, you will remember that the total number of delegates at stake was 50. This is to account for another change to the rule. Half of 99 is 49.5. In 2012, that rounded up to 50. In 2016, fractional delegates are rounded down to the nearest whole delegate. 
2. If you shift from subsection (a) to subsection (b), you will also notice that the RNC has provided for the forced proportional allocation of delegates should states continue to maintain non-compliant winner-take-all rules in contests scheduled prior to April 1. Should the state parties not voluntarily allocate/bind the delegates proportionally, the RNC will do that for them at the convention. The threshold for candidates receiving delegates is 10%. Any candidate receiving over 10% of the primary or caucus vote is apportioned delegates approximately proportionate to his or her share of the vote among those candidates over 10%. This is akin to how New Hampshire has always allocated and bound delegates as mandated by state law. It is worth noting that states staking out a hardline position on this issue (maintaining winner-take-all rules) forgo some of the other less stringent methods of achieving proportionality as called for in the 2012 RNC legal counsel memo laying out the definitions.⁴ This is noteworthy because violators who claim such a position on proportionality lose latitude in determining their own method of allocation. Again, there is more than one way to get to proportionality, but if violating states maintain winner-take-all rules, they lose that leeway.  

Now, let's look at the penalties associated with timing violations (the second half of subsection (a) above). This gets tricky based on a discrepancy in the language between the "rule" and the "penalty". Looking back at Rule 16, the cutoff for determining a violation of the timing rule is March 1. However, the penalty in Rule 17 does not mention March 1. Instead, Rule 17 sets that cut point for the last Tuesday in February. That means that there is a weeklong window -- between February 23 and March 1, 2016 -- for states to hold contests with no penalty. As the calendar stands now, Arizona and Michigan, both of which are currently scheduled according to their respective state election laws for February 23, would not be penalized for holding their primaries then. Both states seemingly violate the provisions of Rule 16, but are not affected by the penalty in Rule 17 because of the language therein.

Coming out of Tampa, as was pointed out in the comments to our Arizona post last week, there was CNN item spelling out a slightly different rules/penalties alignment. As Peter Hamby reported, states that went ahead of the last Tuesday in February would be hit with a "super penalty" (more on that in a moment), but states that fell in the buffer zone between the last Tuesday in February and March 1 would face a less harsh 50% reduction. That may have been or may be the intention of the rules, but that is not what is described above in Rule 17.

Rule 17 (a) calls for states violating the timing rule -- going before the last Tuesday in February -- to have their total number of delegates reduced to 12 (9 delegates plus the three automatic RNC delegates). Additionally but separately, states that violate the proportionality requirement would be subject to a 50% reduction. There is still no double penalty provision. States that violate both rules would have 12 delegates. But a state that holds a contest in the last Tuesday in February to March 1 window and allocates delegates proportionally is within the rules and would not lose any delegates. States with contests in that window with winner-take-all allocation methods would be docked 50% of their delegates.

The fact remains, however, that a state can hold a contest before March 1 and not be penalized for it. There is no 50% penalty associated with scheduling a delegate selection event in that week before March. Again, that may be the intent -- and where the rules ultimately end up -- but that is not where they are now.

Either way, the practical implication of this is that there is some incentive for states to move up into that "buffer zone". Whether states actually do that remains to be seen. Arizona and Michigan are already in that window on the calendar. Arizona would lose 50% of its delegates only if the state Republican Party fails to alter its allocation/binding mechanism from winner-take-all. Michigan would have been compliant on both counts in 2012 (...but not without some issues).

The other big question that emerges from this -- and there are others -- is "What about Florida?"

Indeed.

What about Florida?

Would actors in Florida be enticed by a free landing spot on February 23 alongside Arizona and Michigan; one without penalty assuming the RNC does not change the rule or assuming that the Republican Party of Florida shifts away from a winner-take-all allocation of delegates. Granted, Florida has demonstrated over the last two cycles that a 50% reduction to their delegation is not a deterrent to a non-compliant primary date.

Furthermore, would the Presidential Preference Primary Date Selection Committee charged with setting the date for the primary be winning to share a date with Arizona and Michigan? Would they consider moving back to a non-traditional (non-Tuesday) position on the calendar but also during that last week in February? A Saturday primary may be workable, but that would put Florida at least seventh in the order of states on the calendar. Decision-makers in the state in 2011 were adamant about being fifth in that order behind the carve-out states. Again, FHQ says that would place Florida at least seventh because other states could opt to move into that window before March 1.

That may force Florida to take the poison pill and push ahead of February 23 on the calendar, reducing the state's delegation to 12 in the process and pushing the carve-out states even earlier (at least one month ahead of Florida if the state is ahead of February 23). The rationale within Florida could very easily be that the nomination process is less about delegates that early on than it is about momentum. Still, falling to 12 delegates would certainly affect how the candidates' campaigns perceive Florida in that calculus. That was kind of the point from the RNC perspective.

One last thing about the carve-out states and timing: They gain some added protection, but FHQ doesn't think it is as much as some let on coming out of Tampa. Instead of a "no earlier than February 1" restriction, the carve-out states have a sliding "one month ahead of the next earliest contest" window in which to schedule their contests without penalty. The carve-out states are still not subject to the proportionality requirement, but are subject to the timing reduction (12 delegates) if the four states cannot manage to fit all of their respective contests into the month window before the next earliest contest. This likely is not an issue, but it could be if Florida pushes its primary into January and the calendar flirts with new years again. The month long period may not -- depending on how the calendar shakes out -- be enough for the carve-outs to schedule everything with the spacing they like or require based on state law. In addition, even if the rules allowed the carve-outs to hold late 2015 contests, there would likely be resistance to actually doing so. Not for reasons based on the rules so much as having to coordinate the contests during the holidays.

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Finally, the RNC also added to the rules for 2016 a waiver provision specific to the timing and proportionality requirements in Rule 16. There was a waiver process in 2012 but it only referred to violations of the October 1 deadline for finalizing delegate selection plans in the year before the presidential election. Additionally, allowances were made for states that could not meet that deadline or use the delegate selection plan from the previous cycle due to a conflict. Regardless, everything was specific to the October 1 deadline and not the timing or proportionality requirements. There is now a waiver process in place for states that cannot meet the requirements in Rule 16.

Rule 16 (f):

(3) The Republican National Committee may grant a waiver to a state Republican Party from the provisions of Rule Nos. 16(a)(1) and (2) where compliance is impossible and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party. 

Compliance can be difficult when the opposing party is in control of the apparatus that would make those requisite changes to state law. There is no clear example of that on the Republican side as of now. One can, however, envision such problems on the Democratic side with Republican-controlled early states like Arizona, Florida and Michigan.

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This is probably way too much even for the first part of a two part post, but FHQ will leave you with the foundation of the Republican rules and return later to talk about the potential for rules changes on both sides and what that may mean for the calendar and the process in 2016. Stay tuned for part two.

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¹ Here also are the the full 2012 Rules of the Republican Party as adopted at the Republican National Convention in Tampa:

2012 Rules of the Republican Party by

² Due to the insertion of Rule 12 all subsequent rules for 2016 are one number higher than they were in the 2012 rules. Rule 15 laying forth the timing and proportionality requirements (among other things) is now Rule 16 in the current rules.

³ FHQ will deal with the changes to Rule 40 in a footnote. These alterations have been more widely discussed in the media in the immediate aftermath of the Tampa convention.

Nominations (at the convention):
Then (2012):

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a plurality of the delegates from each of five (5) or more states, severally, prior to the presentation of the name of that candidate for nomination. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall declare that the candidate has been nominated. 

Now (2016) [changes in bold and italics]:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule. Before the convention adjourns sine die, the chairman of the convention shall declare the candidate nominated by the Republican Party for President of the United States and Vice President of the United States. 

Implications:
The functional impact of the above changes is to raise the bar on would-be challengers to the presumptive nominee of the party. Instead of controlling delegations of five states, a fringe candidate seeking nomination, according to subsection (b), is required to control the delegations (have controlling majorities) in eight states and to get the signatures of delegates from those eight states to the secretary of the convention an hour in advance of placing the names of candidates in nomination. In referencing the other party rules herein and the rules of the House of Representatives (the parliamentary procedures under which the convention is conducted), the changes to Rule 40 (b) cut off any parliamentary maneuvering the supporters of a challenging candidate may employ. As in Rule 16, the changes close loopholes that were exploited by the Paul faction leading up to and during the convention.

Presumably, the agenda of the convention will specify when the placing of names in nomination is to occur. Otherwise, the point an hour ahead of that time is somewhat ambiguous to would-be challengers and their delegates.

Echoing the "votes set in stone" point in the Rule 16 discussion above, the changes to subsection (d) provide very little wiggle room to would-be challengers to the nomination. Either the votes are there ahead of time across eight states to nominate such a candidate or they are not. That announcement is and the business of the convention continues.

In total, these rules changes in tandem with those above seemingly and effectively hamper the type of strategy the Paul campaign utilized or attempted to utilize in 2012. It gives, for better or worse, the power over the nomination (at this late stage of the process) back to the RNC. That is good for the party and its presumptive nominee, but may leave a bad taste in the mouth of any candidate attempting to vie for the parties nomination at the convention; something that hasn't happened on the Republican side (in some way, shape or form) since the Ford-Reagan clash in 1976.

⁴ These definitions of proportionality or the ways of achieving proportionality are still not directly included in the rules document. The 2008 Rules of the Republican Party (the rules for 2012) have that memo appended to the document, but it is more or less assumed -- not explicitly laid out -- that those same definitions apply in 2016.

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