North Carolina Just Made the 2016 Presidential Primary Calendar More Interesting

Governor Pat McCrory (R-NC) today signed into law a fairly sweeping elections bill (HB 589) that will alter the way in which voters are registered and how elections are conducted in the Tarheel state.

The now-law also changes the timing of future presidential primaries in North Carolina. Instead of falling on the first Tuesday after the first Monday in May, the North Carolina presidential primary will now occur on "the Tuesday after the first South Carolina presidential preference primary" if the primary in the Palmetto state is conducted prior to March 15 of any presidential election year.¹ Given the protected status South Carolina enjoys as the "first in the South" primary in both national parties, a primary before March 15, 2016 is almost a given.

That means that North Carolina now joins Missouri on the wrong side of what will likely be the national party rules for 2016 delegate selection. In turn, that means that the 2016 presidential primary calendar takes on a different shape altogether.

According to the current RNC rules, South Carolina (and Iowa, New Hampshire and Nevada) have a month prior to the next earliest contest to schedule their four delegate selection events. Missouri [Republicans] proved in 2012 that they can scale things back, opting out of a noncompliant, state-funded primary for a party-run caucus on a date compliant with national party rules.² That may again prove to be the course of action both Missouri parties take in 2016 if the legislature in the Show Me state cannot change the date of the presidential primary there. North Carolina may or may not affect the thinking in Missouri. Regardless, it now brings to two the number of states with laws currently calling for what will be noncompliant presidential primary dates in 2016.³ Two states does not a trend make necessarily, but there is at least one state (North Carolina) now that has very few options for avoiding the RNC super penalty, the penalty now in place for states that violate the national party rules on the timing of primaries or caucuses.

Without further change to this portion of the law, North Carolina Republicans could get hammered with penalties.

...or could end up forced to go the caucus route to comply.

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All of this, however, only examines one side of the equation. It fails to incorporate what the national parties or the four so-called carve-out states will do in response. What affects South Carolina affects Nevada affects New Hampshire affects Iowa and all of it affects what the national parties may do with their rules of the course of the next year when those rules will be solidified.

One option for the carve-outs is to do what they have always done: push ever forward on the calendar. But the North Carolina law makes that more difficult. It takes away the week long buffer that South Carolina parties typically require in between its primary/primaries and a primary in another southern state (assuming South Carolina maintains its customary Saturday primary date). That means that unless the North Carolina law changes, South Carolina can opt into a date that triggers the super penalty on North Carolina and starts a strong-arming process like the one between New Hampshire and Nevada in 2011. That may end up pushing North Carolina in the direction of a caucus/convention system for allocating delegates as was the case with Missouri Republican in 2012.

But the bottom line here is that North Carolina is now on South Carolina's heels. And the best case scenario for the national parties has taken a bit of a hit. As it was with no change in Missouri -- triggering later and compliant caucuses there -- and Colorado, Minnesota and Utah opting into less provocative dates, Arizona and Michigan were the next earliest states on February 23. That would leave enough time between either February 16 or 20 and the last week in January. Now, with North Carolina threatening the balance, that best case scenario could look a lot like the worst case scenario outlined here: right back to the beginning of January where things have started the last two cycles.

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¹ The presidential primary will now not occur concurrently with the primaries for state and local offices. Thus, the state would incur a cost by hold a new and separate presidential primary election; something several states (Arkansas, California and New Jersey) legislated to avoid in 2012 as compared to separate presidential primaries in each in 2008.

² Missouri Democrats applied for and received a waiver from the DNC to hold an early February primary in 2012. But the Democratic nomination race was not competitive and the stakes were pretty low. That may not be the case in 2016.

³ One could also add Minnesota, Colorado and Utah to this count, but those states have options. Minnesota state parties have to agree to a uniform caucus date by March 1 of the year preceding a presidential election or the caucus date is set for the first Tuesday in February the following year according to state law. In Utah, the primary requires state funding; an action the state legislature there failed to take in 2012. Over in Colorado, the law allows the parties to opt into a caucus on either the first Tuesday of February or March. In other words, like Missouri, these states have options/future decisions to make.


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One More on the North Carolina Presidential Primary

While the North Carolina Senate is in recess before taking up the third reading of HB 589, allow FHQ to add one additional footnote to the potential presidential primary move called for in the bill and its implications.

The funny thing -- or perhaps it isn't funny depending on your perspective -- is that the presidential primary provision, if passed, is ultimately going to be all for naught. FHQ explained yesterday that anchoring the North Carolina primary so close to South Carolina's is a recipe for disaster. In a perfect world for North Carolina, the RNC rules (with loophole) would stay as is, South Carolina would allow the primary in the Tarheel state to follow just three days after the primary in the Palmetto state and no other states would threaten the delicate balance the national parties and carve-out states have in the month or so before Super Tuesday on March 1. But the world isn't perfect. The RNC rules are apt to change in some way. South Carolina is also likely to frown upon a North Carolina primary so close to its own. Oh, and who knows what other states will do in terms of the scheduling of primaries between now and, say, October 2015.

Translation: North Carolina can pass the law, but is very likely to get drawn into a non-compliant point on the calendar and get hammered by the RNC (and DNC).

Where does that leave the Tarheel state? That's the funny part.

At that point -- again, say, late 2015 -- the legislature would have to eye a rather quick fix to the legislation in early 2016 (giving elections administrators across the state more than enough headaches as far as their election preparation is concerned). Barring that -- and that kind of fix is no sure thing -- North Carolina would be stuck. The law would call for a primary immediately after South Carolina's. That would put both parties in the state in a bind and with limited options.

They could go the waiver route (as Missouri and Minnesota Democrats did in 2012), but only Democrats in the minority in the state would likely probably stand a chance at gaining a permission from the DNC to hold a February primary. State Republicans, having spearheaded the primary move in the first place, would likely find great difficulty in convincing the RNC that a waiver is warranted.¹

The caucus route is another option. That is what Missouri Republicans did in 2012 when the primary in the Show Me state got mired in legislative gridlock. That is also what happened with North Carolina Democrats in 2004 when a court battle over newly drawn congressional and state legislative lines forced the hands of Democrats in the midst of a competitive presidential nomination race. That may or may not be the preferred option for either party in the state.

Finally, North Carolina -- if the state legislature can't pass a measure to move the primary to a compliant but still early date in 2016 -- may go the Utah route. Utah legislators in 2011 purposely did not fund what would have been a non-compliant February presidential primary in their annual appropriations bill and added the presidential race to the state's June primary for state and local offices. If FHQ had to guess, I'd say this is the most likely option.

So yeah, the North Carolina General Assembly can go to the trouble of changing the primary law, but the end result -- like the scheduling of the 2012 Florida primary -- will likely be that the primary ends up right back where it started: the first Tuesday after the first Monday in May.

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¹ The great unknown is whether the RNC would grant a waiver to North Carolina Republicans if the DNC had already done so with Democrats in the state. There would be pressure on the RNC not to let Democrats gain an advantage in the state (whether one was to be had or not -- Perception often trumps reality in these situations.). There is, after all, a provision in the RNC rules (Rule 16(f)3) that allows for waivers to be granted if "granting such waiver is in the best interests of the Republican Party". That does provide the national party with some latitude.

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The Potential North Carolina Presidential Primary Move from the Perspective of South Carolina

Here's the thing about North Carolina possibly moving its presidential primary from May to February. These sorts of actions never happen in a vacuum. That is certainly the case when one or more of the carve-out states -- Iowa, New Hampshire, Nevada and South Carolina -- are affected. It can even be true when the perception is that a threat is being exerted on any of the four.

Look, in the sequential game of presidential primary calendar formation, states -- state parties or state governments -- can virtually do whatever they want. They may face a (super) sanction from the national parties (see Florida and Michigan in 2008; Florida et al in 2012). They may face a boycott from some or all of the candidates (see Florida and Michigan on the Democratic side in 2008; Delaware in 1996). They may trigger a January (or earlier) beginning to primary season. States, then, can do many things, but there are very often (steep -- steeper over time) repercussions for those actions.

Let's assume for a moment that this bill passes the North Carolina General Assembly as is and is signed into law by Governor McCrory. Well, as FHQ mentioned last night, depending on the timing of the South Carolina primary, North Carolina may actually be able to hold a February primary and avoid a penalty (from the Republican National Committee¹). That may help avoid the national party implications, but does not necessarily solve the candidate or other state issues that may arise in these types of moves/situations.

No, in fact, with Florida breathing down its neck over the last two cycles, South Carolina has all but (unofficially) institutionalized a week long buffer between its contest and the contests of the other states in the South. The Florida primaries in both 2008 and 2012 fell on the last Tuesday in January, and each time -- faced with the possibility of opting into a primary date the Saturday before -- South Carolina Republicans decided to jump to a point on the calendar 10 days ahead of Florida. In the Palmetto state, First in the South means first in the South; just like in First in the Nation means first in the nation in New Hampshire. But it isn't just that the moniker has some meaning. No, instead, first means first but with some time for the results of the contest to resonate; to impact the proceedings of any given presidential nomination race.

In fact, there was a failed effort to protect (and codify) this "at least seven days before" buffer in the South Carolina legislature just last year. No, it didn't pass, but in combination with the actions out of South Carolina over the last two cycles, the signs are telling. Ultimately, South Carolina would force North Carolina's hand if the Tarheel state went through with a plan to anchor its primary to South Carolina's. Newly emboldened by the (at least RNC) rules, South Carolina would inch up a week. The current RNC rules give the carve-out states a month before the next earliest contest to schedule their delegate selection events. That does not necessarily mean February unless the non-exempt states abide by the March 1 threshold. And Arizona and Michigan are already camped out in late February; forcing Iowa into late January more than likely.

But if South Carolina moves up a week -- from February 20 to February 13, 2016 -- then North Carolina Republicans are suddenly open to the Republican super penalty. Republicans in the state will have more delegates in 2016 due to Romney's win in the state, the Republican increases in the congressional delegation and unified control of North Carolina state government. That, in turn, will mean that the super penalty -- the reduction to 12 total delegates -- would hurt more; increasing from 78% of the original total of delegates to likely an over 80% hit.

Again, the game is sequential. North Carolina can move.

...but there will be repercussions. Starting with South Carolina and ending with significant penalties.

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¹ Again, this refers to the current RNC rules. Those are apt to change. Indeed, the RNC was unaware that this loophole existed as recently as late May. The intent of the rules coming out of the convention was to create a 50% penalty for states with contests prior to the first Tuesday in March and a super penalty -- violating states are reduced to 12 delegates -- for states with contests before the last Tuesday in February. That may or may not be what the final, actionable rules looks like when the RNC reviews its rules later this year and into next. [The Democratic Party has yet to begin the process of crafting their rules for the 2016 cycle. They will meet and elect the new members of the Rules and Bylaws Committee in Scottsdale, AZ in August.]

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Omnibus Elections Bill Could Move North Carolina Presidential Primary to February

North Carolina Republicans have been busy -- and in the news locally and nationwide too -- after taking unified control of the executive and legislative branches in the Tarheel state for the first time since Reconstruction following the 2012 elections. The latest from the General Assembly is legislation -- a state Senate committee substitute to HB 589 -- that would significantly alter the administration of elections and registration of those potentially participating in them. There are folks on both sides of the discussions around the alterations to elections, and that is a matter for a different forum.

FHQ is more interested in part 35 of the bill. That is the section that "conditionally" moves the North Carolina presidential primary to the Tuesday following the South Carolina primary. The clause in question?

On the Tuesday after the first Monday in May, 1992, and every four years thereafter, the voters of this State shall be given an opportunity to express their preference for the person to be the presidential candidate of their political party.party, except that if South Carolina holds its presidential primary before the 15th day of March, the North Carolina presidential preference primary shall be held on the Tuesday after the first South Carolina presidential preference primary of that year.

The struck through portion is what would be removed from the existing law. The underlined part is the addition.

Now, FHQ used quotation marks around conditionally above for one simple reason. The conditionality is hollow. The Democratic National Committee has not weighed in yet, but the Republican National Committee has already voted on 2016 presidential nomination rules that guarantee the South Carolina presidential primary will be in February; well before March 15.

It should also be noted that South Carolina has traditionally held a Saturday primary which would mean a February primary on a Saturday triggers a North Carolina primary just three days later. That would additionally mean that, depending upon where on the calendar all of this occurs, that the North Carolina Republican and Democratic Parties and voters could get hammered with the new Republican super penalty (and whatever strictures the DNC institutes next year). If that penalty had been in place in 2012, North Carolina Republicans would have lost over three-quarters of the total delegation to the national convention in Tampa.

The interesting thing now is that North Carolina legislators are either being extremely shrewd or have stumbled on the best dumb luck in presidential primary calendar politics of the last few cycles.¹ As the current Republican rules are structured, the super penalty is only levied on states with contests prior to the last Tuesday in February. In 2016, that's February 23, the same date as the Arizona and Michigan primaries. If South Carolina opts for the Saturday before that point on the calendar -- as FHQ has speculated it might here² -- that puts North Carolina on the same date as Arizona and Michigan. That scheduling has the additional byproduct of helping the Tarheel state avoid the super penalty.

There are a lot of fun possibilities here, but at this point, it is not clear that the primary portion of the bill will survive the legislative process and be signed into any resulting law. For one thing, if passed, North Carolina would have separate presidential and state and local primaries for the first time since 1988 (and only the second time in the post-reform era). That additional election will cost the state; something that has prevented a similar move numerous times in the past. This version of the bill is, after all, a committee substitute. It has to go to the floor as well.

But it is nice to see a fun primary bill come up during a slow summer when (presidential primary) things appeared to be winding down for the year on the state legislative front.

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¹ FHQ has watched all of this primary movement closer than most over the last two cycles and we have not seen a lot of dumb luck out there. And only rarely are there shrewd moves (see Missouri).

²This assumes there is a period of relative calm in 2015 as the presidential primary calendar forms in an orderly and rules-compliant manner. That is far from a sure thing, but the national parties have a fairly decent rules regime in place to combat some of the chaos of 2008 and 2012.

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DC Bill Would Move District's Presidential Primary to June

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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.

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


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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.

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February Presidential Primary Outlasts Another Missouri Legislative Session

Yesterday brought a close to the first session of the 97th Missouri General Assembly. And with it came the most recent nail in the coffin that is the effort to bring the presidential primary in the Show Me state back into compliance with national party delegate selection rules.

For those who have been following along here in this space for the last few years, recall that this has been an ongoing and surprisingly cumbersome issue for state legislature since the 2011 session. The reason for the difficulty is not partisan. Republicans have overwhelming majorities in both chambers of the general assembly. Rather, what was problematic -- and still is -- was inter-chamber disagreement between the state House and Senate.¹ The state House has continually pushed bills to shift the presidential primary from the current first Tuesday after the first Monday in February back a month to March. Now, to be fair, similar plans have been raised in the state Senate. After all, it was a Senate bill moving the primary to March that made it to Governor Jay Nixon's (D) desk in 2011. However, the state Senate has been the setting where these measures -- regardless of chamber of origin -- have found the most resistance on the floor. That resistance has taken several forms from procedural delays to seemingly poison pill amendments.

During this first session of the 97th, the tactic of choice -- or if not overt tactic, then direction pursued -- in the Senate was to simply amend the House committee substitute, removing several amendments added in committee and agreed to on the floor of the House. One of those amendments struck from the bill (HB 110) that passed the House would have shifted the Missouri presidential primary back a month to March.² That bill was taken up on the Senate floor yesterday, passed in its Senate committee substitute form and sent back to the House. The House, then, in the clamor to bring the session to a close concurred with the Senate changes rather than drag the bill deliberations out further.³

That closes the 2013 chapter on the February Missouri presidential primary. What implications does the non-move have?

Well, for starters, despite the fact that the primary would be noncompliant with national party rules if conducted in February 2016, it is not the potential calendar killer that Florida would have been. That is because Missouri Democrats and Republicans would probably have an out. Missouri Republicans proved that they can hold caucuses as an alternative (as the state party did in 2012 to avoid national party sanction). Missouri Democrats successfully applied for a waiver from the DNC Rules and Bylaws Committee to hold the February primary as the means of selecting delegates. But that was 2012, not 2016. The nomination race on the Democratic side in 2012 was not competitive and Florida's primary a week earlier provided Missouri with some cover. Missouri was not the main cause of the carve-out states pushing in January. Neither will be the case in 2016 and that would likely net Missouri Democrats some pressure from the national party to find alternative means of selecting but more importantly allocating delegates (i.e.: caucuses). Translation: Show Me state Democrats would find much more resistance to a waiver application in 2015 than they did in 2011.

There were two other bills that were introduced this past session that would specifically and solely have moved the presidential primary back into compliance. Those bills are now dead, though, and cannot carry over to the second session. That means the process will have to begin again with the introduction of new bills. And that is not unprecedented, but it is rare. As FHQ has mentioned a number of times, the majority of presidential primary movement tends to occur in the year immediately preceding a presidential primary year. One even year success story -- success in a primary move bill being proposed, passed and signed into law -- actually comes from Missouri. The Show Me state presidential primary was first moved to February in 2002.

Will something similar happen in 2014? We'll have to wait and see. Regardless, the process will likely be interesting to say the least.

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¹ This division was illustrated yesterday most clearly by Senator Brad Lager who during a sine die day filibuster claimed that the "leadership in the House is corrupt". Bear in mind, Lager was no stranger to the theatrics surrounding the primary date in 2011. He was the one who introduced the amendment that would have placed the Missouri primary on the Tuesday after the New Hampshire primary.

² That would have placed Missouri on March 8, 2016; a date shared by Alabama, Hawaii, Mississippi and Ohio on the current calendar.

³ In truth, the presidential primary amendment was not related to the original intent of the bill: to revise the method in which a vacancy to the lieutenant governor's position. A similar marriage of ideas was what led to Governor Nixon vetoing the bill in 2011. The governor did not disagree with the primary moving but with the governor's office losing appointment powers to statewide offices.

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

The Maine bill to reestablish a presidential primary in the Pine Tree state got a vote of no confidence from the Joint Committee on Legal and Veterans Affairs on Monday.

The committee today after hearing testimony from interested and potentially affected parties last week briefly discussed the measure (LD 1422) among themselves in a working session. As it turns out, it was not the presidential primary provision that derailed the legislation. Instead, the committee was given pause by the constitutionality of a provision in the bill calling for instant runoff voting in primaries (not presidential); something that had already been dismissed in separate legislation this session.

The committee was reminded that the previous legislature had taken up similar measures dealing with the possibility of a presidential primary last session only to have that subsequently studied and rejected. On the current committee there was some support voiced for having a discussion about a presidential primary -- especially a discussion outside of the context of a presidential election year (the context of the 2012 study) -- but there was widespread agreement among the membership that this "was not the vehicle (the bill) for it".

The committee then unanimously agreed to deem the bill "ought not pass", endangering the prospects for a Maine presidential primary for the time being. To reiterate a point made here several times since the beginning of 2013, the years immediately following a presidential election are not successful times for presidential primary legislation to make its way through state legislatures. Bills are introduced and debated in those years, but not often passed. Maine is seemingly set to follow that pattern.

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A Follow Up on the 2016 Florida Presidential Primary

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A Follow Up on the 2016 Florida Presidential Primary

If you haven't read FHQ's take on the implications on the Florida presidential primary of the broad elections reform bill passed on the final day of the legislature was in session last week, start here.

There are a couple of additional points FHQ wants to add to the original discussion of the destination for the 2016 Florida presidential primary.

A) I tweeted this on Sunday, but it does bear repeating in this space. It really is striking the the 180º turn that political actors in Florida have made over the last six years regarding the Sunshine state presidential primary. We have gone from an initial bipartisan adoption of legislation endorsing the idea that Florida has just as much right to be early as Iowa and New Hampshire in 2008 to a partisan Republican stance (among state legislative leaders and state party elites) that Florida deserves to be early and no later than the fifth state to hold a contest in 2012.

Contrast that with what was said about the backdrop for the last-minute amendment to the elections bill affecting the presidential primary. Rubio Florida state director, Todd Reid, reached out to FHQ over the weekend (...offering to share the language of the bill with me following my late-night tweet Friday).¹ Reid has become a point man of sorts for discussions of the presidential primary rider on the elections bill passed last week and was kind enough to exchange emails with me on the matter. Again, contrast 2008 and 2012 above to Reid's reasoning for a move:

1. The RNC superpenalty is too harsh.
2. The grassroots (especially the actual delegates to the convention in Tampa) were unhappy with and vocal about the hotel and convention floor seating assignments situation.
3. The grassroots was always hit or miss about the utility of the early primary. [Again, as FHQ stated above, it was a move pushed by state legislative and state party leaders; not the grassroots.]
4. The Presidential Preference Primary Date Selection Committee "was a newly created entity and no one was really wedded to it." [The parameters guiding the PPPDSC left up to chance to some extent that the Florida could end up violating the superpenalty.]
5. There was some desire -- and this is the 180 -- to reduce uncertainty for rulesmakers and schedulers by having a decision on the date of the Florida primary before October 2015.

Embedded in the reasoning are two things: 1) the new penalty is having the desired effect (directly or not) and 2) Florida, contra 2008 and 2012, is signaling that it will play by the rules in 2016. Again, that is a striking reversal. And yes, that's the sort of thing that typically stokes the "He has to be running" chorus concerning Rubio in 2016. It is a move that is made with the most political of political moves serving as the backdrop.

B) FHQ made the point in the original post that there is some ambiguity to the new measure that could complicate its legal application in 2015-16. Then, I made the point that a discontinuity between national party rules could lead to the triggering of an earlier (February 23) primary under certain circumstances. [One could call this a discontinuity between the Florida law and RNC rules.] As FHQ stated at the time, all of that was dependent upon the maneuvering of the Republican Party of Florida. Drop the true winner-take-all allocation of delegates and that could open the door.

There are a couple of follow ups to this:

1. Delegate allocation decisions by the Republican Party of Florida could push the primary forward a week further, but it could also push the primary back into April as well. There is no proportionality requirement in the RNC rules at the moment. But if that may/shall discrepancy is "fixed" then the RPOF could make the argument that the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty is the first Tuesday after April 1. But that brings us back to the original point... 
2. On the clarity side, there would still be a potential argument with Democrats in Florida over the "true" date called for in the new statute. RPOF could make the case that the primary should be in April, but Democrats in Florida may desire a March primary instead. Call this the either/both issue proposed in the first post. Without the sort of guidance that the inclusion of either or both would entail in the statute, it is difficult to arbitrate the decision on when the primary should be held. And it goes without saying that the statute as currently constructed does not provide for an arbiter on the decision of when the date of the primary should be. 

• Court could be one route, but depending on when this potential dispute arises, it could push up against when the primary season is to start (or more importantly when the filing deadlines hit for the candidates). 
• It is also true that some states have proposed laws requiring prior agreement among state parties to a primary date. Otherwise, the secretary of state decides or a fixed date is invoked. This is the law regarding the scheduling of the Minnesota caucuses that was problematic in 2011. The new bill in Maine mimics this set up with reference to a proposed primary in the Pine Tree state. On the other end, the recently proposed Nevada legislation would give the secretary of state in the Silver state the date selection decision, not if the parties were in disagreement, but if another western state jumped ahead of the date for the primary called for in the statute (if the bill became law). 

As FHQ alluded to in response to the proposed change in Florida, the intent of the legislation is of real benefit to the national parties and carve-out states. However, the flexibility added to the statute may actually serve as ambiguity; shifting problems between the state and the national parties to a potential showdown between the two state parties.

...with no one to solve them.

As well-intentioned as the change is, the legislature will likely need to revisit this at some point. That is why it was good this was added now, rather than in, say, 2015 when it may have been more difficult to fix.

Stay tuned...

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¹ I want to point out the fact that I did not press (much less ask) Reid on the Rubio/2016/Florida primary shift point. FHQ will leave that to others to explore. The one thing I will add is that such maneuvering -- if there was a connection -- is not unprecedented in home states or elsewhere.

Jimmy Carter's nascent campaign in the lead up to 1976 was involved in arguing (in Florida) that the Florida presidential primary should remain early (then in March). During the invisible primary of the 1980 cycle, President Carter's team again was instrumental in urging both Georgia and Alabama to join forces with Florida at an early point on the calendar. The Ted Kennedy threat was apparent in the move as the southern subregional primary was seen as potential counter to any advantage Kennedy might gain in the two states after Iowa that year: New Hampshire and Kennedy's home state of Massachusetts. [As it turned out, Carter won Iowa, New Hampshire and the three southern states and encountered more trouble from Kennedy later in the calendar when the nomination was mostly wrapped up.]

Bill Clinton's campaign -- or Clinton himself -- used the Arkansas governor's connections from his time as head of the National Governors Association as an in with Georgia governor, Zell Miller. Miller helped guide through the Georgia General Assembly a bill to shift up the date of the Peach state primary by a week in 1992 (to the first Tuesday in March). This move was intended to give Clinton a southern boost after New Hampshire. [NOTE: The bill was proposed, passed and signed into law before Clinton had announced his candidacy.]

More recently and less obviously, the 2008 cycle saw Arkansas and Illinois move to earlier and seemingly more advantageous dates on the presidential primary calendar (for favorite sons/daughters candidates). There were Arkansans seeking the nominations in both major parties (Huckabee signed the Arkansas move into law in 2005.) and among the stated reasons for the move of the Illinois primary in 2007 was to help then-Senator Obama in the Democratic primary race.

So again, it has happened before. Whether that is the case with Rubio and Florida for 2016 is an open question.

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2016 Florida Presidential Primary: Out of January, But Confined to March?

Sine die day 2013 in the Florida legislature was a typical last legislative day of the session in that there was the usual hustle and bustle of pushing some measures -- often complex -- through at the last minute. Late Friday in Tallahassee that included an omnibus elections reform bill that ultimately included a provision altering the dynamics of the Sunshine state presidential primary.

Early reports out of the capital (see Miami Herald) seem to have misinterpreted both the practical application of the bill and its implications (...likely or otherwise). First, here are the changes deeply nestled in an amendment to HB 7013 [scroll down to line 1005 on p. 37]:

Each political party other than a minor political party shall, at the presidential preference primary, elect one person to be the party's candidate for nomination for President of the United States or select delegates to the party's national nominating convention, as provided by party rule. The presidential preference primary shall be held in each year the number of which is a multiple of 4 on the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty. Any party rule directing the vote of delegates at a national nominating convention shall reasonably reflect the results of the presidential preference primary, if one is held.

FHQ will spare everyone a cut and paste of the struck through portions of the original bill that were changed, but I do want to drive home one very important point about the transition called for in the above legislation: The changes to this bill did not and do not eliminate (or nix) the early presidential primary in Florida. The changes made to the election law two years ago already accomplished that, or at the very least provided for the possibility of that (impermanent) outcome. The law, as altered in 2011, laid the groundwork for a handpicked committee -- the Presidential Preference Primary Date Selection Committee (PPPDSC) -- to select (by the end of September) the date on which the Florida presidential primary would occur in the following (presidential) year.

But that committee had a fair amount of leeway in making its decision. The bill signed into law in 2011 gave the PPPDSC the ability to set the date of the presidential primary as early as the first Tuesday in January and as late as the first Tuesday in March. That is different from the 2007 bill that changed the law to permanently position the Florida primary on the last Tuesday in January on the calendar. Though the PPPDSC opted to schedule the 2012 Florida primary for the same date (as called for in that 2007 law), the mechanism by which that occurred was different.

The changes pushed through in the amended HB 7013 yesterday did not eliminate the early presidential primary; it eliminated the ability of Florida -- through the decision-making force of the PPPDSC -- to be more adaptive in selecting a perceived advantageous calendar position. It eliminated those options.

The curious thing is that this maneuver was not even necessary. If the presumed landing spot for the Sunshine state presidential primary in 2016 is the first Tuesday in March (more on this in a moment), then that was already an option under the law enacted in 2011. One could argue that the legislature was leaving it to chance that the PPPDSC would opt in late 2015 to select a date for the primary that would be non-compliant with at least one of the national parties' sets of delegate selection rules. That is true but it is difficult to fathom a scenario in which a group -- the PPPDSC -- selected by the governor, president of the state Senate and speaker of the state House would go rogue. The whole issue throughout 2011 in Florida was that the unwritten mission of the committee was to do just that: go rogue. But that was the guidance the majority Republican group had gotten from the legislature, the governor and the Republican Party of Florida. It was not to go rogue (with the scheduling of the primary) so much as it was to make the Florida primary relevant/decisive to the Republican nomination race. Again, it is hard to imagine a scenario where a hypothetical PPPDSC put together in 2015 would set a date that would conflict with a calendar position that those very same guidance-providing interests desire. If the state party, governor and legislative leaders wanted a "later" date, they would place individuals on the committee who would support such a move.

In that regard, this change is a needless one. It was not necessary. It certainly was not necessary given the justification that was circulated: that Florida was going to get hammered with penalties from both national parties. Nothing in the current Florida elections law painted the state into any corner as far as delegates or delegate penalties were concerned. As long as the window provided to the PPPDSC by law included January and February, the possibility of facing the super penalty on the Republican side was always present. That is, present but not assured.

As for the Democrats, well, there are no DNC delegate selection rules for 2016 yet, so the Miami Herald reporting that those sanctions would be worse than the Republican penalties is wrong [WRONG, WRONG, WRONG]. It is factually inaccurate to state that "none of the Democrats' delegates would count in 2016, nor did they in 2008". Again, there are no 2016 delegate selection rules for the Democratic nomination as of now. And on top of that, Florida's delegates "counted" in 2008. The Democratic Party in Florida sent a full delegation with full voting rights to the convention in Denver that year. There was a period between late summer 2007 and the 2008 convention where Florida Democrats lost half their delegates, then all their delegates, then gained back half again (told comedically here) before gaining them all back for the convention. Those delegate slots did not count during primary season, but the delegates selected did count at the convention. [Here's a full timeline.]

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Finally, FHQ wants to talk a little about the language of this bill and what means for where Florida will end up on the 2016 calendar. The presumption is that the "first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty" means the first Tuesday in March (March 1, 2016). I do not think that is the case. That is the highest probability landing spot, but it is by no means the only possibility. There are a couple of reasons why that is the case.

First of all, and to repeat an earlier point, there are no Democratic rules at this point. The DNC Rules and Bylaws Committee may or may not continue with the first Tuesday in March as the earliest point that non-carve-out states can hold delegate selection events. That is an unknown right now, but FHQ is on record as saying that there is at this point little expectation for big changes on the Democratic side of the equation.

The second reason that it is anything but clear that the first Tuesday in March is the definitive calendar position for the Florida presidential primary is because of a semantic double whammy. For starters, it is an open question as to what constitutes the earliest calendar position without penalty on the Republican side. States can hold, as Michigan is seemingly going to do in 2016, a contest as early as the last Tuesday in February without penalty. With a shift in the method of delegate allocation, Florida Republicans could match that position. Secondly, the change in language in the Florida law does not require agreement between the major political parties on the issue of the earliest point at which states can hold primaries and caucuses. Without that sort of requirement, there are two ways of reading the proposed (It still requires the signature of the governor to be enacted.) law. Either...

1. As it is being widely interpreted at the moment, that is the first Tuesday where both national parties' rules are congruent with respect to the earliest allowed date. In other words, even though under certain circumstances the RNC allows for an unpenalized, non-carve-out contest as early as the last Tuesday in February, the Florida law requires the penalty-less window to be open in both parties before the primary can be held. ...or...
2. The other interpretation is the law is suggesting that when looking at both sets of major political party delegate selection rules, the state can hold a primary at the earliest point allowed by either parties' rules. 

It is not clear which is correct, which is why FHQ is of the opinion that the Florida legislature will revisit this segment of the law (if signed) in future sessions. The first interpretation begs for the addition of a both whereas the second interpretation seemingly requires an either. Either way, one or the other will need to be inserted in the law at some point for clarity.

Now, there are a couple of caveats to add to that second interpretation. One is that one must assume that the RNC will stick with their rules and penalties are currently constructed. Again, it is open as to what constitutes the earliest date on which a contest could be held without penalty in the Republican rules. If that last Tuesday in February/first Tuesday in March loophole is left unchanged, then that may cause problems for the legally constructed scheduling of the Florida primary. Of course, that leads into the second and largest caveat. Much of this depends on what the Republican Party of Florida wants to do with its method of delegate allocation. FHQ has argued that under certain circumstances, Florida could abandon a non-compliant true winner-take-all method of delegate allocation in favor of a compliant hybrid method with an element of proportionality and still maintain or improve the state's influence over the Republican nomination process (as measured by the resulting margin of candidate delegates). The RPOF could make that switch and complicate matters and the application of this law by making the last Tuesday in February the first Tuesday that the rules of the major political parties provide for state delegations to be allocated without penalty. However, that point is moot if RPOF scraps that idea and maintains a true winner-take-all formula.

Of course, the catch is that Florida Republicans -- if avoiding sanction is the goal -- are going to have to make some sort of change to their method of allocation, otherwise the delegation will be reduced by half (depending on the fate of the may/shall question). The party may be comfortable with that penalty as it has proven over the last two cycles, but if unnecessary changes are being made to state election law based on the threat of a super penalty that may never have been triggered by the Florida primary, then who knows?

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The big winners in yesterday's maneuvering in Tallahassee were the national parties and the carve-out states; especially South Carolina (which has had to push forward the last two cycles because of Florida to maintain its first in the South status). Overall, chaos was reduced to some extent for the front of the calendar. Yet, in Florida questions remain as to the true nature of this bill. Chaos, or more appropriately, uncertainty were increased on the state level. For the last two presidential election cycles, Florida has been a perfect example of the limitations of parties policing themselves on issues like the presidential nomination process. This case is different, but continues to demonstrate how the different party interests  -- national parties, state parties, parties-in-state-governments -- interact with each other to accomplish that policing goal. In this instance, one can talk about policing being accomplished rather than it not being accomplished.

That is a welcomed development to the presidential nomination process. But it never had to be just Florida. All it takes is one state to be able and willing to challenge the national party rules. As the 2016 presidential nomination race continues -- yes, continues -- it will be interesting to see if any other state takes up the mantle.

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Maine Bill Would (Re-)Establish Presidential Primary, Bind to New Hampshire Under Certain Conditions

Earlier this year, FHQ mentioned that the Maine legislative committee charged last year with considering the prudence of a presidential primary -- as opposed to caucuses -- had passed on the idea, citing no desire among members or constituents for the switch. That conclusion did not preclude future legislative action on transitioning from caucuses to a primary as the means of allocating national convention delegates. That is particularly true, perhaps, in light of the fact that the 2012 elections saw control of both chambers of the Maine legislature swing from the Republican Party to Maine Democrats.

That seems to have been the case as Representative Deane Rykerson (D-92nd, Kittery) has introduced legislation (LD 1422) to reestablish a presidential primary in the Pine Tree state that has eight Democratic representatives and two additional independent (one representative and one senator) co-sponsors. The details of the proposed primary system are interesting:

PRESIDENTIAL PRIMARY ELECTIONS
Determination and date of primary; voter eligibility 

1 Determination of primary. Whenever the state committee of a party certifies that there is a contest among candidates for nomination as the presidential candidate of the party and that the committee has voted to conduct a presidential primary election, the State shall hold a presidential primary election. 

2 Date of primary. A presidential primary election held pursuant to subsection 1 may not be held earlier than January 1st of the year in which the presidential election is held. The date of the presidential primary election must be chosen in the following manner.

A If certification is made pursuant to subsection 1 for only one party and that party chooses a date for the presidential primary election, the State shall hold the election on that date. The party shall deliver to the Secretary of State notification of the chosen date by December 1st of the year prior to the presidential election year.  

B If certification is made pursuant to subsection 1 for more than one party and those parties agree by November 1st of the year prior to the presidential election year to one date, the State shall hold the presidential primary election on that agreed-upon date.  

C If a party does not choose a date pursuant to paragraph A or there is no agreement on a date pursuant to paragraph B, the State shall hold the presidential primary election on the first Tuesday after the presidential primary election in New Hampshire, unless that primary occurs in the preceding calendar year, in which case the election must be held on the first Tuesday in March.

If this bill is passed (and signed into law), then, the immediate impact is pretty minimal. State parties would still have the ability to hold caucuses as the means of allocating delegates, but would have a state funded primary option at their disposal. That is true even if just one party opts into the primary system.

Where things get interesting is in the area of scheduling the contest. Let's say Maine Democrats opt in to a hypothetical presidential primary and Pine Tree state Republicans maintain a caucus system. Maine Republicans would retain the ability to schedule their caucuses at any point on the calendar within the guidelines of the RNC rules (to the extent the party wants to abide by those rules). Democrats in Maine would face potential conflicts with national party rules as well, but would have the freedom to schedule a state funded primary as early as January 1 of a presidential election year. If the 2016 Democratic Party delegate selection rules are consistent with the rule that governed the 2012 process, the earliest date on which contests other than those in Iowa, New Hampshire, Nevada and South Carolina could be scheduled is the first Tuesday in March.

If both parties opt into a hypothetical state funded primary system, then they have to agree on a primary date that can be no earlier than January 1. If neither party selects a date or if the parties cannot agree on a date for the primary, then the presidential primary would be held on the Tuesday following the New Hampshire primary. First of all, that would not conflict with New Hampshire law because it would be seven days after the New Hampshire contest. That is the requisite buffer required by law in the neighboring Granite state. Secondly, however, this would only hold true if the New Hampshire primary is scheduled in the same calendar year as the presidential election. Should the New Hampshire primary be forced into, say, 2015 and no date be agreed to by the two major parties in Main, then the Maine primary would be held on the national party rules-compliant first Tuesday in March.

It should be noted, however, that the Maine state parties would have the ability to schedule the primary in the window of time reserved for the carve-out states. Maine could serve as a challenge to the rules and not really face much of a sanction on the Republican side. The jury is still out on what the DNC may do with its own 2016 penalties.

This bill is worth tracking. It is sponsored by Democrats in a Democratic-controlled legislature, but Maine does have a Republican governor currently.

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Montana Bill to Consolidate Presidential Primary & School Elections Probably Dead

Montana Senate legislation to consolidate the state primary (including the presidential primary) with school elections in May appears ready to die in committee when the legislative session ends next month. SB 140 did not make it out of committee to be voted by the full state senate much less have to have beaten the deadline (February 28) for bills to have been transmitted to the other chamber. Unless the provisions of the bill make it into another bill as an amendment, then, the effort to combine the two elections will once again fail.¹

FHQ often talks about the unintended consequences of electoral reform and/or even the sometimes seemingly simple task of altering state election law, and this legislation appears to be a victim of those unintended consequences. The hearing on the bill was enlightening (read more here). At issue for both supporters and opponents of the bill was voter confusion. Supporters claimed the bill would tamp down on voter confusion by asking less of them in terms of appearing at the polls for multiple elections (thus increasing the likelihood that voters feel they have already voted in the second election in the sequence). In turn, it was argued by the bill's sponsor, Senator Art Wittich (R-35th, Bozeman), that the legislation would have the effect of increasing turnout.

Opponents of the bill, on the other hand, made the case for just the opposite; that voter confusion would increase because of the potential that they would go to vote in different locations (or by mail) in odd and even year elections. It was further argued that this would place additional constraints on elections administrators in terms of providing voters with the proper ballot combining all of the various districts (state house, state senate, school, etc.).

One other point that received some attention -- something we have increasingly heard involving presidential primaries recently -- was the potential for cost savings as a result of consolidating elections. Even that point was disputed by the speaker representing the Montana secretary of state at the hearing, Lisa Kimmet. That dispute is likely why the fiscal note attendant to the bill reveals no cost savings in the event the bill were to pass the legislature and be signed into law.

Perhaps owing to the fact that the next presidential primary in Montana is over three years away, the slight shift forward to an earlier date on the presidential primary calendar was only mentioned in the opening remarks by the bill's sponsor, Senator Wittich. He did make the point then that the earlier date may be of benefit to the state -- bringing more attention -- but that was the extent of the discussion on the presidential contest.

If passed and signed, the bill would move the Montana primary to the first Tuesday after the first Monday in May. That is the same date in which state law calls for primaries in both Indiana and North Carolina. It was also a point on the 2008 calendar that was still competitive in the Democratic race, but was outside of the window of competitiveness on the Republican side in both 2008 and 2012.

NOTE: Though the bill is likely destined to die in committee it will be added to the 2016 calendar until that death becomes official at the end of the session next month.

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¹ Legislation with the same intent has come up if not been introduced in every legislative session since 2007 (see 2007, 2009 and 2011).


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Bill Would Push Texas Primary to Saturday

Early last week, legislation was introduced in the Texas House to shift the dates of the Lone Star state primaries to a Saturday. In practice, HB 1911, authored by Representative Stephanie Klick (R-91st, Tarrant), would move the consolidated primary for president as well as state and local offices from the first Tuesday in March to the first Saturday in March.

The bill would be effective as of September 2013, and would thusly impact the midterm primaries next year as well. However, let's examine this bill with 2016 in mind. In presidential election years -- years in which that March primary is of some utility to the state of Texas in the presidential nomination process¹ -- this move would have some interesting implications. Basically, the first Saturday in March will precede the first Tuesday in March date both national parties have pinpointed as the earliest date on which states can hold delegate selection events without penalty. In other years, though, the first Saturday in March will succeed the first Tuesday in March.

If this bill had been law in 2012 (and assuming there was no redistricting kerfuffle in Texas), the Texas primary would have been held on Saturday, March 3. That would have been the same day as the Washington state caucuses and three days before Super Tuesday on the 2012 calendar. That would have placed the Texas primary on a date non-compliant with both national parties' delegate selection rules, but would potentially have drawn a lot of attention (and possibly have changed how the campaigns approached not only Super Tuesday but the contests the previous Tuesday in Michigan and Arizona as well).

In 2016, the opposite would be true. The first Tuesday in March happens to be March 1. The first Saturday of the month, then, is obviously after that point. Assuming the nominations are not decided on the likely 2016 Super Tuesday (first Tuesday in March -- though that could be a debatable title for that date by 2016), Texas would still have an advantageous niche carved out on the calendar. In both 2008 and 2012, the Saturday following Super Tuesday [It was in February in 2008.] was a landing spot for a number of small state caucuses. In fact, in 2012, the Saturday after Super Tuesday was the date of the caucuses in Kansas and several of the US territories. Needless to say, if Texas ends up on a Saturday in 2016, it would garner all or most of the candidates' attention regardless of what other states share the date.

This bill differs from the Texas Senate bill that has been introduced to move the primary into February in terms of where the primary would be rescheduled, but the theoretical motivations for the moves are slightly different.  The senate bill would move the primary to a point that would threaten the positions the national parties have created for the four carve-out states. The house bill is not nearly so provocative. Both bills, however, would shuffle the Texas primary around in a way that would draw the Lone Star state more attention from the candidates. As of this time, neither bill has any institutional support (co-authors or co-sponsors) outside the primary authors of the bills. It is, then, a little early to project how successful either will be in navigating the legislative process.

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¹ Earlier has proven to be "better" more often than not in the post-reform era in terms of when presidential primaries are scheduled. In contrast, there is no similar race to the front among states for midterm election influence. The byproduct of an earlier primary is a longer general election campaign. To be fair, that is a potential drawback to a frontloaded presidential primary process as well, but there are multiple contests determining any presidential nomination. Without a runoff, most midterm primaries are one-off deals that immediately feed into the general election campaign.

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Arizona Taps on the Brakes on 2016 Primary Bill

Scott Conroy has a nice piece of reporting up at Real Clear Politics connecting some of the same Arizona-Nevada dots FHQ pieced together earlier in the week. The most interesting addition to the discussion is the fact that the Republican National Committee saw fit to send a delegation to Arizona to discuss the legislation to anchor the date of the Arizona primary to the date of the Iowa caucuses in a meeting with its author, Arizona Rep. Phil Lovas (R-22nd -- Peoria, Glendale). Furthermore, following the meeting, Lovas opted to back off his bill for the time being.

Now, one may ask, "So what?" The 2016 presidential nomination process is three years away. The bulk of calendar jockeying that will take place for the cycle will be in full tilt in two years time. In other words, it is still early. In 2009, there were 13 bills introduced across ten states to shift the dates of 2012 presidential primaries. Only one was successful: the Arkansas state legislature voted to move the Natural state primary back to May.

Four years later, the activity at the state legislative level is not all that different. Thus far during the 2013 sessions, eight bills have been submitted to state legislative chambers in six states. Three of those eight bills are out of Missouri; a residual of the failed attempt in the Show-Me state to move the primary back for 2012. If any of those eight bills are to pass and be signed into law, Missouri is likely at the top of the list of likely movers. The state has to move back for 2016 to come back into compliance with national party rules. The rest just are not all that likely to go anywhere; not in 2013 anyway.

That is the story or seemed like the story in Arizona. Rep. Lovas' bill was filed just after the new year began, did not garner any real attention outside of Arizona and FHQ's world,¹ and more importantly did not seem to have any support outside of the bill's sponsor/author.

Yet, the RNC saw enough of a threat in the bill to warrant a sit down with the Arizona representative. Whether it was precautionary or not, this is a proactive step on the part of the RNC. One of the things that FHQ harped on during all of 2011 was the seemingly gaping hole in communications between the national parties and state legislatures. State legislators either ignored the parties' delegate selection rules or did not understand them. National party outreach has not been all that necessary in the post-reform era, but has become so since Florida and Michigan in 2008. One could argue that this is national party intervention, but it would probably be better defined as a better flow of information/communication between those involved in the process. That is a good thing: everyone understanding (or at least having the information in order to start understanding) the ins and outs of the nomination process.

Still, what plagues the national parties is the fact that no matter what the penalties are, there are still states willing to flaunt the rules and take the penalties as they have existed until now. That has changed for 2016 with a stiffer sanction on the Republican side. As the 2013 state legislative session continue -- but especially as the process moves into 2015 -- that will be the test:

Are the new sanctions enough to stop states that have exhibited a willingness to break the rules to go early in the past?

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¹ That included New Hampshire Secretary of State Bill Gardner who raised the issue of the Arizona bill with FHQ on the side of the National Association of Secretaries of State winter meeting in late January.

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