New Texas Law Further Clarifies State-Level Guidance Over Presidential Delegate Selection

Late last week, Governor Rick Perry (R-TX) signed into law Senate Bill 1398. Substantively, the legislation does not fundamentally change the presidential delegate selection process across parties in the Lone Star state, but it does provide some state governmental guidance as to how the allocation process should be conducted.

At its core, the bill was intended to provide both state parties some cover -- by codifying their methods -- relative to the existing or expected national party rules governing delegate selection in 2016 and beyond. Here's the before and after:

Before:
Sec. 191.007.  ALLOCATION OF DELEGATES.  Each political party holding a presidential primary election shall adopt a rule for allocating delegates based on the results of the presidential primary election.

After (underlined portions indicate additions, strikethroughs mean subtractions):
Sec. 191.007.  ALLOCATION OF DELEGATES.
(a)  Each political party holding a presidential primary election shall adopt a rule for allocating delegates [based on the results of the presidential primary election].

(b)A rule adopted under this section may utilize either a proportional or winner-take-all method, based on the results of the presidential primary election, which may be based on:

(1) a direct tie to statewide popular vote totals;
(2) a direct tie to congressional or state senatorial district popular vote totals; or
(3) an alternative disproportionate method that is based on statewide, congressional district, or state senatorial district popular vote totals. 

(c) Subsection (b) does not apply to delegates allocated: (1) among party and elected officials; or (2) through an allocation based on participants registering for or attending a caucus or similar process, provided that at [At] least 75 percent of the total number of delegates who are to represent this state at the party's national presidential nominating convention, excluding delegates allocated among party and elected officials, shall be allocated in accordance with the rule adopted under this section based on the results of the presidential primary election [among one or more of the candidates whose names appear on the presidential primary election ballot and, if applicable, the uncommitted status].

In a nutshell, the new Texas statute basically allows the state parties to continue what they have been doing.

For Republicans that means some leeway on the proportionality question (should that requirement be reinstated). It would not, then, have to be an either/or proposition; either true winner-take-all or true proportional allocations. Given the current primary date called for in state law -- the first Tuesday in March -- Texas Republicans could/would have some options in terms of having a truly proportional allocation or opting into the less proportional methods allowed under the RNC definition of proportionality. [In reality, the Republican Party in Texas always had that option under the former state law.]

On the Democratic side of the equation, things are mostly the same, save one notable exception. Yes, the new law provides the state party the latitude to filter the delegate selection process through state senate district conventions/caucuses as opposed to congressional district versions of those meetings as has been the case. There is even an exception for the primary-caucus (the Texas two-step  it was called in 2008) that got so much attention during the Clinton-Obama race. What is different, though, is that there is now a required percentage of delegates that have to be allocated through the presidential primary. That will not necessarily jibe well with the Democratic delegate apportionment to Texas. The way things broke down in 2008 was that the at-large, statewide delegates were allocated based on the primary results and the congressional district delegates -- reapportioned across state senate districts -- were allocated through the caucus/convention mechanism. Roughly 65% of the delegates, then, were allocated based on the results of the primary with the remainder going the caucus route. That balance -- at-large to congressional district delegates -- will not necessarily comply with the changes to this law. That will potentially complicate the crafting of the Texas Democratic delegate selection plan in 2016.

...or it could lead to a lawsuit, that precedent (via Tashjian) seems to indicate would side with the state party over the state government law.

--
As subsection C indicates, both parties' party/superdelegates/automatic delegates are not subject to the allocation guidelines set forth in the new law.

Again, the substantive changes are relatively minute here, but there are some interesting possible implications when it comes time to implement and enforce this new law.

[Hat tip to Tony Roza at The Green Papers for bringing this legislation to my attention way back in March when it was introduced.]

Recent Posts:

Update: 2016 Presidential Primary Calendar (6/13/13)

DC Bill Would Move District's Presidential Primary to June

Under Fire Again, Will Iowa Caucuses Remain First?

Are you following FHQ on Twitter, Google+ and Facebook? Click on the links to join in.

Update: 2016 Presidential Primary Calendar (6/13/13)

As there have been a handful of changes to state election law and a number of state legislative sessions have adjourned for 2013 -- killing legislation that could have impacted the 2016 presidential primary dates -- 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.]

Changes:

• Florida has been moved to a March 1 primary date. Given the current state of the RNC rules -- no proportionality requirement; first Tuesday in March as the first unpenalized date -- and the changes to Florida's statute concerning the presidential primary in the Sunshine state -- primary held on first date in which there is no penalty -- March 1 is the date. However, should the proportionality requirement be reinstated -- something that is likely in the offing at some point -- then Florida would shift back to the first Tuesday in April according to the statute. 
• Legislation in Maine, Missouri, Montana, Nevada and Texas that would have moved or established presidential primaries died. All have been reshaded on the map below.

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 (worst case scenario) 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 2015.

The best case scenario at this point looks something like this:

• Monday, January 25: Iowa caucuses
• Tuesday, February 2: New Hampshire primary
• Saturday, February 13: Nevada caucuses
• Saturday, February 20: South Carolina primary

This assumes that Arizona and Michigan are the next earliest contests on February 23. 

--

Here is a snapshot of what things look like now (6/13/13):

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. 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.

--

Reading the calendar:

1. 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.
2. Links to discussions of 2013 state-level legislation addressing the dates of future presidential primaries have also been added (see 2013 Legislation in the calendar).
3. Markers have also been added indicating whether legislation has become law or has died at some point in the legislative process. 

2016 Presidential Primary Calendar

February

Tuesday, February 2:

Colorado caucuses¹

Minnesota caucuses²

Missouri (2013 Legislation: March primary: House/Senate, April primary -- all Died in Committee)

Utah³ (2013 Legislation: Primary funding -- Signed into Law)

Tuesday, February 23:

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

Michigan

March

Tuesday, March 1:

Colorado caucuses¹ 

Florida⁴ (2013 Legislation: March primary -- Died in Committee; Primary on first unpenalized date -- Signed into Law)
Massachusetts (2013 legislation: June primary)

Oklahoma

Tennessee

Texas (2013 Legislation: Saturday primary, February primary -- all Died in Committee)

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 (2013 Legislation: June primary)

Wisconsin⁵

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 (2013 Legislation: May primary -- Died in Committee)

New Jersey

New Mexico

South Dakota

Primary states with no specified date:

Georgia

Kansas⁶

Maine (2013 Legislation: establish primary -- Died in Committee)
Nevada⁷ (2013 Legislation: January primary -- Died in Committee)
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 June 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.

--

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 The newly signed presidential primary law would move the Florida primary to the first Tuesday in which the national parties do not penalize states. 

⁵ See definition of "Spring primary" for clause dealing with the timing of the presidential primary.
⁶ 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.
⁷ A Republican-sponsored bill during the 2013 session of the Nevada legislature would create a consolidated primary (presidential primary together with state primaries) and move the contest from June to January.

Recent Posts:

DC Bill Would Move District's Presidential Primary to June

Under Fire Again, Will Iowa Caucuses Remain First?

February Presidential Primary Outlasts Another Missouri Legislative Session

Are you following FHQ on Twitter, Google+ and Facebook? Click on the links to join in.

DC Bill Would Move District's Presidential Primary to June

A bill introduced in early May in the Council of the District of Columbia would shift back the date of the presidential primary in the nation's capital. B20-0265 proposes moving the primary from the first Tuesday in April to the second Tuesday after the first Monday in June.

This potential move in interesting in a couple of respects.

1. The introduced 2011 legislation that ultimately moved the Washington, DC primary from the second Tuesday in February, where it coincided with primaries in neighboring Maryland and Virginia -- the Potomac Primary -- in 2008, called for shifting the primary back to June. That bill started off in the same form before being amended in committee and passed/signed, moving the DC primary to April. 
2. This push back to June is not motivated by a need to consolidate the presidential primaries with those for other District-wide offices. The same 2011 legislation accomplished that as well. This was the same sort of cost-saving measure that was taken in other states across the country in 2011 including in Alabama, California and New Jersey.

It is unclear, then, what the motivation for the move is. One could speculate that the intent is to shorten the general election campaigns for local officials by two months. If this rescheduling takes place, it would position DC at the very last point on the calendar -- the second Tuesday in June¹ -- that both national parties allow.

--
UPDATE (12/17/14): Bill passes DC Council
UPDATE (2/6/15): Bill signed, cleared for congressional review


--
¹ Of course, in years in which June 1 is on a Tuesday, the second Tuesday after the first Monday in June would actually be the third Tuesday in June. Noncompliant under the parties' current rules.

Recent Posts:

Under Fire Again, Will Iowa Caucuses Remain First?

February Presidential Primary Outlasts Another Missouri Legislative Session

Maine Presidential Primary Bill Gets 'Ought not pass' from Committee

Are you following FHQ on Twitter, Google+ and Facebook? Click on the links to join in.