Massachusetts Bill Would Shift Presidential Primary to June

Toward the end of January a pair or bills were introduced in the Massachusetts Assembly that would affect the timing of future primary elections if signed into law. The first -- H 574 -- would leave the presidential primary on the first Tuesday in March while moving the primaries for state and local offices back further away from (general) election day. The second bill -- H 575 -- would shift both the presidential primary and the primaries for state and local offices, consolidating the two on the first Tuesday after the first Monday in June.

Let's consider the motivation behind the two legislative items.

H 574 is intended as a remedy to what was a messy attempt by the Massachusetts General Court to bring the Bay state's election law into compliance with the MOVE act. As you may or may not recall from some of the 2011 discussions in this space, the federal mandates laid forth in the MOVE act were put in place as a means of insuring that military and overseas personnel had timely access to ballots. The federal legislation required a 45 day window before election day for ballots to have been delivered. That meant that a primary scheduled seven weeks prior to the general election -- as was (and still is) the case in Massachusetts -- was not compliant. In order to move into compliance with the federal requirements, the Massachusetts legislature added, as a one time fix for 2012, an amendment to an appropriations bill to schedule the state primary for a Thursday just 47 days prior to the November election.¹

This bill would codify a move to the ninth Tuesday before election day in November, an additional two weeks that is MOVE act compliant. That gives the Massachusetts secretary of state's office just four days following the primary to certify the results, print the general election ballots and send them off to military and other overseas personnel. Additionally, that date continues to conflict with the tail end of a long Labor Day weekend.

In other words, there are some potential problems attendant to this particular piece of legislation.

As an alternative, Representative James Dwyer (D-30th, Middlesex) has once again introduced legislation by request (via petition) to consolidate the two sets of primary elections in June. Again, H 575 would solve the MOVE act conflict by moving the state primary from September to June and the consolidation would additionally save money that would otherwise fund two separate elections, not one. The drawback is that the bill -- one almost exactly like the bill that Dwyer introduced in 2011² -- would potentially pull the Massachusetts presidential primary out of the window in which the nomination decisions are likely to be made. In any event, it would be something of gamble for Massachusetts legislators (and the governor) to move the contest that far back on the calendar.

But that is exactly what will be considered in the Joint Committee on Election Laws; the next stop for both of these bills. No hearings for either bill are on the committee agenda at this time.

NOTE: Please see the changes triggered by these bills to the 2016 presidential primary calendar here.

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¹ The Tuesday of that same week conflicted with both the Democratic National Convention and fell just a day after the Labor Day holiday.

² The only difference in the section of the bill referring to the presidential primary -- or rather the proposed consolidated primary -- is that the latest legislation calls for the primary to be held on the first Tuesday after the first Monday in June instead of the first Tuesday in June (as was the case in the 2011 bill).

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2016 Rules: Penalizing Candidates for Participating in Unsanctioned Debates?

This idea has been floating around since the RNC Chairman Reince Priebus mentioned it to reporters during the RNC Winter Meetings in Charlotte in January. But now the idea of penalizing presidential candidates delegates for participating in primary debates not sanctioned by the Republican National Committee is making the rounds again in an item by Ramesh Ponnuru over at the National Review.

In my discussions with folks involved in the rules-making process in the RNC this debates/delegate penalty never came up. That is not to suggest that it has not come up or will not be pushed in some form at future RNC meetings. There is some sincere frustration over the perceived impact those primary debates had on the process within the party, but this seems more like an idea that is being floated more than a directive for change from the chairman.

That is the FHQ interpretation of it anyway. Here's why:

This is a tough [TOUGH] penalty to enforce. Again, that is not to say that it cannot be enforced, but it is something that is difficult to achieve. Functionally, it works more as a threat than an actual penalty. The Democratic Party had something similar on the books in 2008 (and 2012). The rule did not apply to debates. Rather, it was a penalty put in place to dissuade candidates from campaigning in states that violated the rules on timing. In 2008, that meant that none of the candidates could campaign in Florida and Michigan until the day after the primary in the violating state. If the candidates had campaigned in either state they would have lost any and all pledged delegates won in that primary (Rule 20.C.1.b).

But no candidate violated that rule. And that was probably fortunate for the DNC and its Rules and Bylaws Committee. Imagine if that question had been layered into the Clinton-Obama delegate fight in the waning days of primary season in 2008. [That threat also worked (or mainly worked) because Iowa, New Hampshire, Nevada and South Carolina were in on it. Each collectively and effectively threatened the support for and to any candidates who campaigned in any states jumping the queue.]

Again, as in that 2008 case, it is easy to threaten to take away delegates from candidates, but tough to enforce without also potentially hurting the state parties, not to mention individual delegates, in the process. How does the national party identify which delegates get the axe? What is the percentage? How does the party account for the varying penalties that will occur based on different methods of delegate allocation? Furthermore, does would the RNC ultimately care? [The standing, yet unofficial, rule on the Republican side has always been to just leave it up to the states. But there has been an evolution to that since 2008. In other words, instead of "do what you want states" it is "these are the rules, do what you want/can states".]

Ultimately, this really is not a penalty on the candidates. Yes, the proposal targets them, but the reality is that this but the first step in how the RNC likely sees this playing out. As was the case with the Democrats in 2008, the likely intent is to in some way curb the incentives state parties and other groups have in scheduling these debates in the first place. If the state parties are rational, they will not want to hold/sponsor a debate if it means the party will potentially not have a full slate of candidates -- or at least the main competitors -- participate.

But what is the mechanism by which state parties or other groups acquire the RNC's blessing for holding a debate? Is there a mechanism at all or will early states (or perhaps competitive general election states) have the upper hand in planning and orchestrating such debates?

All we really have in Chairman Priebus' comments is the wisp of a plan. It is not fully fleshed out and as such is rife with unintended consequences.

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Footnote:
FHQ should also mention one of the other talking points circulating in response to this already: That this is a rules change that seemingly advantages the supposed establishment candidate; something those in the grassroots and/or among the Tea Party would not necessarily be favorable toward. That response is apt, but focuses too heavily on the candidate-specific penalties instead of the state angle proffered above. Functionally, I think candidate angle is correct. A frontrunning establishment candidate is motivated to participate in as small a number of debates as possible. This just provides some institutional national party-based cover for that candidate or candidates. That, in turn, affects the calculus of those planning these debates in the first place. But again, that is the goal of this particular rule should it ever come to fruition.

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Update: 2016 Presidential Primary Calendar (2/21/13)

Since there have been a handful of bills introduced in a few state legislatures that could have an impact on 2016 presidential primary dates, and owing to the fact that there was a need to revise some of footnotes from when FHQ put together the initial calendar in January 2012, an update to the calendar is in order.

[Find the calendar's permanent home here. There is a link to the 2016 calendar in the upper left corner of the page as well.]

Plus, there was at least some need to add a map.

Changes:

• There is now a map indicating the month in which state-level elections statutes are to be held (...if there is a date specified). FHQ should also note that if you click on the state name in the calendar below, the link will take you to the relevant section of the state's law or party's bylaws covering the date of the primary or caucus.
• Links to discussions of 2013 state-level legislation addressing the dates of future presidential primaries have also been added. 
• The number of footnotes substantially decreased from January 2012. That is largely attributable to the fact that at that point a number of states had yet to update their online statutes to reflect changes made during their respective 2011 sessions. 

Notes:

You will note that none of the so-called carve-out states are included on the calendar. During the 2012 cycle, FHQ added those states to calendar as a means of reflecting the reality of the typical formation of the calendar. Namely, that those states will position their contests relative to and earlier than the date of the next earliest contest. Missouri is the next earliest contest, non-compliant though that contest may be. If that holds, then Iowa, New Hampshire, Nevada and South Carolina (if not other states) will push once again into January. That is likely to look something like this:

• Saturday, January 2: Iowa caucuses
• Tuesday, January 5: New Hampshire primary
• Saturday, January 16: Nevada caucuses
• Saturday, January 23: South Carolina primary

There are a couple of other factors to note in the calculus that each of the above states will/could undergo.

1. State law requires a seven day window after the New Hampshire primary. That eliminates January 12 as a possibility if Nevada falls on January 16.
2. None of this prevents a scenario like the one that played out in late 2011 from happening again if the carve-out states are pushed up against the cusp of the new year. In other words, Iowa's parties could nab Monday, January 4 as the date of its caucuses and then force another stand-off between New Hampshire and Nevada. That could push Nevada to a later date and allow Secretary of State Bill Gardner the chance to claim January 12 for New Hampshire. The difference in 2016 is that the secretary will have to contend with both the Nevada Democratic and Republican parties; not just the Republicans. Of course, historically, Gardner remains undefeated in the game of keeping New Hampshire first. 
3. There is a long wait for any of this to occur. None of this will go down until October 2015 at the earliest. 

Reading the Map:

As was the case with the maps from past cycles, the earlier a contest is scheduled in 2012, the darker the color in which the state is shaded. Arizona, for instance, is a much deeper shade of blue in February than California is in June. There are, however, some differences between the earlier maps and the one that appears above.

1. Several caucus states have yet to select a date for the first step of their delegate selection processes in 2016. Until a decision is made by state parties in those states, they will appear in gray on the map.
2. The states where legislation to move the presidential primary is active are two-toned (or three-toned -- see Missouri). One color indicates the timing of the primary according to the current law whereas the second color is meant to highlight the month to which the primary could be moved. 
3. States that are bisected vertically are states where the state parties have different dates for their caucuses and/or primaries. The left hand section is shaded to reflect the state Democratic Party's scheduling while the right is for the state Republican Party's decision on the timing of its delegate selection event (see Nebraska). This holds true for states -- typically caucus states -- with a history of different dates across parties but which also have not yet chosen a contest date.

2016 Presidential Primary Calendar

February

Tuesday, February 2:

Colorado caucuses¹

Minnesota caucuses²

Missouri (2013 Legislation: March primary, April primary)

Utah³ (2013 Legislation: Primary funding)

Tuesday, February 23:

Arizona (2013 Legislation: Fix primary date to date of Iowa caucuses)

Michigan

March

Tuesday, March 1:

Colorado caucuses¹ 

Massachusetts

Oklahoma

Tennessee

Texas (2013 Legislation: February primary)

Vermont

Virginia

Tuesday, March 8:

Alabama

Hawaii Republican caucuses

Mississippi

Ohio

Tuesday, March 15:

Illinois

Saturday, March 19:

Louisiana

April

Tuesday, April 5:

Maryland

Washington, DC

Wisconsin⁴

Tuesday, April 26:

Connecticut

Delaware

Pennsylvania

Rhode Island

May

Tuesday, May 3:

Indiana

North Carolina

Tuesday, May 10:

Nebraska

West Virginia

Tuesday, May 17:

Kentucky

Oregon

Tuesday, May 24:

Arkansas

June

Tuesday, June 7:

California

Montana

New Jersey

New Mexico

South Dakota

Primary states with no specified date:

Florida

Georgia

Kansas⁵

New Hampshire

New York

South Carolina

Without dwelling on something that is WELL before its time, FHQ should note that those February states are only problematic in 2016 if the two parties' delegates selection rules mirror the rules from the 2012 cycle. They may or may not. The real problem children, if you will, are the primary states without specified dates for 2016. As of February 2013 they remain the free agents for the 2016 primary calendar and the ones that may bear the most intense watching between now and mid-2015. That said, first things first: The first step is a set of rules from the DNC and RNC. We have a ways to go before the parties settle on/finalize something on that front (summer 2014). The Republican Party is further along in its process than are the Democrats.

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¹ The state parties have the option of choosing either the first Tuesday in March date called for in the statute or moving up to the first Tuesday in February.

² The state parties must agree on a date on which to hold caucuses by March 1 in the year prior to a presidential election. If no agreement is reached, the caucuses are set for the first Tuesday in February.

³ The Western States Presidential Primary in Utah is scheduled for the first Tuesday in February, but the contest will only be held on that date if the state legislature decides to allocate funds for the primary.

⁴ See definition of "Spring primary" for clause dealing with the timing of the presidential primary.

⁵ Kansas has not held a presidential primary since 1992. Funds have not been appropriated by the legislature for the primary since that time. That said, there are laws in place providing for a presidential preference primary. Assuming funding, the Kansas secretary of state has the option of choosing a date -- on or before November 1 in the year preceding the presidential election -- that either coincides with at least 5 other states' delegate selection events or is on the first Tuesday in April or before.

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Election Law Amendments Would Clarify Funding of Utah Presidential Primary

A bill that has made its way through both houses of the Utah legislature would amend the Beehive state election laws with some interesting implications for the presidential primary there in 2016 and beyond. HB 53, introduced by Representative Kraig Powell (R-54th, Heber City), adds a rather simple clause to the segment of the Utah Elections Code concerning the Western States Presidential Primary:¹

20A-1-201.5. Primary election dates.
(3) [The] If the Legislature makes an appropriation for a Western States Presidential Primary election, the Western States Presidential Primary election shall be held throughout the state on the first Tuesday in February in the year in which a presidential election will be held.²

Now, ordinarily FHQ would leave this alone, but as I said this does have some impact on the potential 2016 Utah presidential primary. And it also happens that FHQ received some probably-deserved flak from the Utah press in 2011 for raising the specter of Utah crashing the 2012 presidential primary calendar. The conflict then was over the fact that while the statute called for what would have been a non-compliant February primary, the state legislature also had to appropriate money for the primary to be conducted. The legislature did not appropriate those funds for a 2012 primary during its consideration of that year's budget during the 2011 session.

But it appears that Utah legislators felt at least some need to clarify that funding mechanism in the elections law of the state. The February primary date is now clearly dependent upon the legislature appropriating funds for that purpose.

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That brings us back around to 2016. What is interesting is that given the current Utah Elections Code and given the current RNC and DNC rules for delegate selection in 2016, Utah may have a tough time holding a compliant primary.

Why?

The RNC rules do and the DNC rules likely will prohibit February primaries or caucuses in states other than the four carve-out states. That would likely affect the willingness of Utah legislators to fund a would-be, non-compliant primary. Such an action would reduce the state's Republican delegation to 12 delegates and likely decrease the Democratic delegation by half. The catch is that even Utah's fallback -- using the fourth Tuesday in June primary for state and local offices for the presidential primary as well -- would also be non-compliant. The DNC has since relatively early on in the post-reform era -- 1980 cycle -- required that all delegate selection events be completed by the second Tuesday in June. The RNC has until 2016 not had any similar mandate. That will be different in 2016 unless the RNC changes its rules. There will now be a back end to the window of time in which states can hold the first step of their Republican delegate selection processes: the second Saturday in June.

Utah's fourth Tuesday in June primary would not be compliant for the purposes of selecting delegates to the national convention.

Granted, all of this is premature to a great degree. It is still 2013 after all. But something will have to change at the state-level if Utah is to hold a presidential primary in 2016. Absent such a change(s), both state parties could lean on the caucus/convention system that typically begins with neighborhood meetings in March of presidential election years.

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¹ The moniker "Western States Presidential Primary" was borne out of an unofficial compact that several smaller western and/or mountain states informally agreed to pursue as early as the 2000 cycle. The effort was not unlike the attempt by the Democratic Party to incentivize regional or subregional primary or caucuses clusters in 2012. The idea was that collectively a group of western or mountain states could influence the nomination process more so than if each state struck out on its own. The initial efforts in the 2000 cycle were disrupted by California moving its primary up to the first Tuesday in March; a shift that affected where each of the eight potential participating states would end up on the primary calendar that year (Busch 2000, p. 69). You can read more about the attempts to coordinate the western primary ahead of the 2008 cycle here.

² The struck through portion of the legislation is the part being removed while the underlined portion is what would be new and different in the law assuming passage and a signature by the governor.

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Alternate Senate Bill Would Move Missouri Presidential Primary to March

Last month FHQ described the state House-based effort to shift the date of the Missouri presidential primary back into compliance with national party rules. Now there is an alternative bill in the state Senate. The two are not companion bills.

The aforementioned HB 127 would move the primary from the first Tuesday after the first Monday in February to the first Tuesday after the first Monday in April. However, the bill (SB 177) introduced by state Senator Eric Schmitt (R-15th, St. Louis) would push the primary back only a month to March. That makes the legislation most like the majority of legislation addressing the primary date during the 2011 legislative session.

A couple of notes:
1) Again, the Missouri presidential primary is currently scheduled for February. That will not be compliant with either national party's ultimate delegate selection rules. The Show-Me state, then, is the rare state that has to make some change in its date to comply with those rules. The other potential early February states have other options. Presumably Missouri would too (at least on the Republican side). The Missouri Republican Party opted for a March caucus to avert sanctions from the RNC and Show-Me state Democrats were granted a waiver because the date of the primary was determined by the Republicans in the majority in both chambers of the General Assembly. The decision on the part of the Democratic Rules and Bylaws Committee was made easier by virtue of the fact that President Obama was running unopposed for the Democratic nomination. That condition will not exist in 2016. In other words, if the primary is not moved back, the Democratic Party in the state would have a tougher case to make before the RBC.

2) Traditionally, Missouri Republicans have allocated their delegates in a winner-take-all fashion since the primary format was reintroduced for the 2004 cycle. Only the House bill would allow for that practice to continue. An April primary date -- as called for in the House version of the bill -- would place the Missouri presidential primary out of the March (and earlier) proportional window called for in the RNC delegate selection rules and allow the state GOP to maintain the winner-take-all allocation. Alternatively, if the March Senate bill passes both chambers and is signed into law, the state party would have to alter its delegate selection plan in some way. This is only a concern among Republicans in the state since the DNC mandates a proportional allocation of delegates. But this may be some cause for conflict between the chambers of a Missouri General Assembly controlled by Republicans.

...and if you followed the state legislative effort/inability to move the Missouri primary in 2011, this is potentially some cause for concern.

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Texas Bill Would Move Presidential Primary to February

The slow crawl toward 2016 continued last week in the Texas legislature.

Though the bulk of legislation regarding any future dates of presidential primaries is most successful in the year immediately prior to the presidential election year, that does not preclude state legislators from introducing legislation at other points in a given presidential election cycle. No, it does not prevent the introduction of such legislation, but the timing does have an impact on whether said legislation is successfully signed into law. During the 2012 cycle, only Arkansas (2009) and Illinois (2010) shifted via legislation the dates on which their respective presidential primaries would be held. The rest of the primary movement witnessed happened during the 2011 terms of most state legislatures.

It is with that caveat that FHQ raises the legislation filed in the Texas Senate last week. SB 452, sponsored by Senator Dan Patrick (R-7th, Houston), would shift the presidential primary as well as the concurrent primaries for other offices from the first Tuesday in March to the first Tuesday in February. Now, under the current rules or likely rules of both parties, such a move a would make the Texas presidential primary non-compliant. [Editor's Note: FHQ does not foresee changes to either party's rules that would change that.] And though the conditions have changed from 2012, it is unlikely that this legislation will make it through both chambers of the legislature and onto Governor Rick Perry's desk during this session.¹

The best evidence of this is the fact that a nearly identical bill prefiled in 2010 ahead of the 2011 Texas legislative session never made it out of the House committee to which it was referred. The only difference between the bill Representative Roberto Alonzo (D-104th, Dallas) filed in 2010 (HB 318) and the current legislation is that section 1.b now refers to the later runoff election date that came out of the redistricting battle. That date is shifted up a month as well. The rest of the bill is exactly -- verbatim -- the same. And incidentally, a House bill exactly like the 2011 bill was proposed and went nowhere in 2007. Perhaps the fact that a Republican has introduced the legislation in the state Senate will make some difference in the ultimate success of the bill. If, however, the previous House bills are any indication, then that is not likely.

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Thanks to Richard Winger at Ballot Access News for passing the news of the introduction of this bill to FHQ.

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¹ For one, complications with the redistricting process kept the date of the 2012 Texas primary in a constant state of flux from December 2011-March 2012. as the review of the new lines were challenged in the courts. Secondly, the Republican Party of Texas had no desire to break the RNC rules concerning timing or the new proportionality requirement. Part of this was driven by the fact that the RNC legal counsel at the time was the Texas national committeeman. That is no longer the case.

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