Unity Reform Commission: Primaries Recommendations

The following is part one in a series of posts on the recommendations passed by the DNC Unity Reform Commission during the group's final public meeting on December 8-9. While the text below matches the language presented at that meeting, there may be some subtle differences between the language here and the final report the URC will deliver to the Rules and Bylaws Committee by January 1, 2018. Those changes, if any, are unlikely to affect the intent of the substance below. Instead, the aim would be to tighten the language.

Below are the nine URC recommendations for primaries. Any emphasis added -- bold and/or italicized language -- is FHQ's and is mainly focused in this section on any action verbs; an attempt to capture the commission's emphasis on particular goals. The vote of the commission on a given measure follows bolded in brackets. Further notes are added below each recommendation, indicating any amendments and whether/to what extent those amendments were adopted.

Part two: Caucuses recommendations
Part three: Superdelegates recommendations

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Primaries Recommendations

The stated principles the Unity Reform Commission sought to establish in this section were to 1) emphasize inclusivity in the process and 2) party building through primaries. As URC vice chair, Larry Cohen said, the group wanted to "push to the limit" on those principles. That effort is reflected more clearly in the language of recommendations 1-5. Each includes the use of "all means" the party has at its disposal and all but one establishes a requirement for state parties to account for in their delegate selection plans for 2020. 

Recommendations:

1. The DNC and the party at all levels shall use all means including encouraging legislation and changing party rules to expand the use of primaries wherever possible.¹
[unanimous but with one abstention]

2. The DNC and the party at all levels shall use all means including encouraging legislation and undertaking litigation to require states to use same day or automatic registration for the Democratic presidential nominating process.
[unanimous]

3. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to use same day party switching for the Democratic presidential nominating process. As part of those efforts, it shall be the position of the Democratic party as an example that an otherwise eligible voter should be able to participate in a Democratic presidential primary if she or he presents officials at the polling location with written notice that she or he wishes to be enrolled in the Democratic party.
[unanimous]

4. The DNC and the party at all levels shall use all means including encouraging and opposing legislation, changing party rules and undertaking litigation to resist any attempts at voter suppression and disenfranchisement. Voter suppression and disenfranchisement includes but is not limited to laws or regulations that make it more onerous for people to vote as well as administrative actions or inactions related to issues such as the number and placement of voting locations and the adequacy and accuracy of state voting rolls including party identification where required. In advance of the 2020 Democratic nominating process, the DNC should identify such issues on a state by state basis and seek to remedy them prior to voting in 2020. This would include the timely pursuit of prospective judicial relief where appropriate.
[unanimous]

5. The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require states to allow voters to switch parties at least as late as the deadline for registering to vote. With respect to any state that has a deadline for party switching which is earlier than the deadline for voter registration, the rules of the party shall be amended to impose an appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been taken to change the party affiliation deadline but were not successful in the efforts should not be penalized.
[unanimous]

NOTE: Weaver amendment on open primaries/independent participation {Proposed 5.A.}:
The DNC and the party at all levels shall use all means including encouraging legislation, changing party rules and undertaking litigation to require that states permit non-aligned voters, also known as indpendent or no party preference voters, to participate in the Democratic presidential nominating primary. With respect to any state that does not permit non-aligned voters to participate in its Democratic presidential nominating primary, the rules of the party shall be amended to impose and appropriate penalty which could include a reduction in the number of pledged delegates to the Democratic national convention to which the state would otherwise be entitled or potential adjustments to state party support. State parties that are able to demonstrate that all provable steps including litigation as determined by the Rules and Bylaws Committee have been undertaken to require the participation of non-aligned voters but were not successful in the efforts shall not be penalized.
[11-6 against. Vote broke along Clinton/Sanders lines among the membership of the Unity Reform Commission (with the three chair-appointed members on the Clinton side).]

6. The party must develop a strategy to prioritize and resource education programs directly to voters in those states due to no fault of the party that continue to have confusing timelines for registration and party affiliation [and the process for running for delegate] in order to ensure everyone knows the rules and timelines in place and the impact they have on voter participation.
[unanimous] 

NOTE: Bracketed portion in section 6 above added "for emphasis" by Zogby amendment. [unanimous] That phrase was signified "for emphasis" because it is at least somewhat duplicative of current delegate selection rules/remedies requiring the public reporting of the process for running for delegate.

7. The DNC shall publicly report on an annual basis its efforts and the result of those efforts to secure the changes in paragraphs 1-6 above.
[unanimous]

8. The Rules and Bylaws Committee and the Democratic National Committee shall review the allocation of national delegates to ensure it reflects the principle of proportionality among the several jurisdictions as well as any bonus delegates allocations currently being used.
[unanimous]

9. The Rules and Bylaws Committee shall modify the requirements for provable positive steps as provided in Rule 21(B) to include legal remedies as a corrective measure to bring a state law into compliance with our rules.
[unanimous]


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FHQ Thoughts:

• Open primaries: Much has been and will be made of the fact that the open primaries amendment -- a requirement for having and (an unspecified) penalty for not having -- offered by former Sanders campaign manager, Jeff Weaver, was rejected. It was included as most big ticket amendments more for symbolic purposes.² That was clear from the procedure for consideration and voting put in place by the URC. The group was working from a baseline draft of recommendations and had a packet with not only those draft recommendations but some pre-drafted amendments as well. The nine baseline recommendations were non-controversial as evidenced by the unanimous votes on each while the open primaries amendment was more controversial in nature. Unlike the nine baseline recommendations, the open primaries amendment broke along Clinton/Sanders lines on the commission, and was inconsistent with the thread binding the nine recommendations together: those goals of inclusivity and party building. Together, all nine are about getting the national party on record as prioritizing both symbolically (in words) and structurally (in rules) an easing of the burdens on registration in the presidential nomination process. That is paired with a desire on the commission to have voters go into the voting booth enrolled as Democrats whether via same day or automatic registration, a party registration switch or other means. In other words, make it as easy as possible to register, but go vote as Democrats. The former hits the inclusivity goal while the latter gets at the party building aspect. But there is no new requirement nor penalty for open primaries.

• Implementation: As FHQ has noted elsewhere, these changes -- to participation and/or registration requirements -- are easier said than done. There is a potentially partisan/adversarial state legislative/state government component to be accounted for in this equation. Democrats, as Scott Meinke noted to me via Twitter during the URC meeting, face a much different environment now than they did when the party was first implementing and tweaking the McGovern-Fraser reforms during the 1970s. Unlike then, Democrats will find far less sway with Republican-controlled state governments across the country than the Democratic majorities that were far more typical then. Yes, that can and maybe even likely will change in 2018, but the tide is not likely to extend to the beach head the party found greeting the sweeping rules changes after 1968. 

• Penalties: There are a lot of new usages of "require" peppered throughout these recommendations. However, there are not many penalties in place here to help enforce those new requirements. The only suggested penalties are for any states with deadlines for switching party affiliation that are sequenced well ahead of party registration deadlines. In every other instance -- on same day or automatic registration, on the expansion of primaries, on same day party switching -- there is no suggestion of penalty. This does not mean that penalties will or will not be put in place on those matters. Rather, it indicates 1) a prioritization of the mismatched registrations deadlines issue (more on that one below) and 2) that the URC has deferred to the Rules and Bylaws Committee the task of tailoring the best implementation of these recommendations. If penalties are a part of that implementation, it will be the RBC that devises and specifies them. 

• Expansion of the use of primaries: Again, this recommendation is more about getting the party -- the DNC -- on record in terms of what its priorities will be in the presidential nomination process moving forward. And this recommendation, in combination with those on caucuses, demonstrates 1) the recognition that caucuses are nearly inevitable in  a small handful of states and territories, but 2) primaries are the preferred option where available. The latter is covered by the first recommendation above while the former will be discussed at length in the caucuses section.

• Proportionality: The DNC has mandated a proportional allocation of pledged delegates in its delegate selection process since the 1980s. However, due to the way in which those pledged delegate slots are classified and allocated, the proportionality mandate has never made mathematical proportionality statewide the goal. Some delegates are allocated statewide, and others by congressional district. That split -- the different classifications -- can disrupt what FHQ will refer to as true proportionality. Additional factors disrupt a true proportional allocation as well. First, the other component to the proportionality mandate is the qualifying threshold. Candidates must receive 15 percent of the vote statewide and/or congressional districts to be allocated any delegate slots. Any delegates not allocated to those not meeting the threshold are allocated to those who have. Second, the size of the state matters. Proximity to true proportionality is more likely in larger states. But in smaller states with a smaller number of total delegates, true proportionality as a goal can be more difficult. Differently stated, it is more difficult to proportionally allocate a small number of delegates in a congressional district (or other subunit as in one congressional district states) than a larger number of delegates at-large/statewide in larger states. These types of issues were particularly acute in a state like Wyoming in 2016 where the pledged delegates were evenly split between Clinton and Sanders despite Sanders having won more delegates to the state convention.³ Regardless, it is the recommendation of the URC that the Rules and Bylaws Committee review that proportionality process.

• Rule 21(B): This is a fairly important modification that FHQ will dwell on in a subsequent post. However, the short version is that Rule 21(B) lays out the procedure for state parties to pursue in the event that the state government in that state has laws -- on primary timing, on registration, etc. -- that conflict with the national party rules on delegate selection. To avoid sanction, states parties in conflict would have to demonstrate that they have taken provable positive steps toward bringing about a resolution to the conflict (changing state law). Those provable positive steps now include a state party pursuing non-frivolous litigation to bring about the change. And that is a higher bar for state parties to achieve and a potentially much more costly one; one that will likely require an assist from the DNC. When URC vice chair, Larry Cohen, said in leading the primaries section discussion that the recommendations would push the limit, this litigation addition was the meat of the push. But it does give the Rules and Bylaws Committee something significant to consider during its deliberations. 

• New York and party switching: The primaries section, again, is geared in part toward reducing the burdens on registration; focusing on the pursuit of automatic/same-day registration and the ability to switch party registration as easily. But there is also some singling out of what the URC sees/saw as bad practices. One of those -- and it is the one area where the URC actually suggested the need for penalties of some variety -- was the lengthy gap between the registration deadline and the change in party affiliation deadline in New York. Constantly held up as a problem child through many of the URC meetings, New York has in place a deadline more than six months in advance of the presidential primary for switching parties but a much later deadline for registering. There are a handful of other states that also have similar, though not as large, gaps between the two deadlines. Recommendation #5 above is about singling out that small group of states and cleaning up those issues. And to be clear, this is not the only instance of singling out what has been deemed bad behavior. There is more of that in the caucuses section as well.

Part two: Caucuses recommendations
Part three: Superdelegates recommendations

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¹ The conversations around this recommendation among the URC members revealed that "primaries" referred to a state-run option.

² Contrast the Weaver amendment to section 5 with the more extemporaneous Zogby amendment to section 6. The former was in the packet from which the commission was working while the latter was not. The former was also more sweeping in nature, and thus what FHQ will call here a "big ticket item" for consideration by the commission.

³ A part of the issues in Wyoming is a caucuses story overlapping with the proportional allocation. The results in Wyoming were counted in terms of delegates to the state convention won and not the raw votes in the initial local caucuses. This is an issue the URC tackled in its recommendations on caucuses.