Are Iowa and New Hampshire likely to face RNC penalties?

Invisible Primary: Visible -- Thoughts on the invisible primary and links to the goings on of the moment as 2024 approaches...

First, over at FHQ Plus...

• South Carolina Republicans made a move over the weekend that is pretty atypical for early states. The party in a way disarmed and retreated on the calendar. Yes, the primary in the Palmetto state is still among the earliest, but it is unusual for one state to yield an earlier position to another. More on that at FHQ Plus.

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In Invisible Primary: Visible today...

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As an aside in the discussion of the South Carolina Republican primary being set at FHQ Plus, I closed by taking a big picture view of the likely early primary calendar on the Republican side:

Would the Republican National Committee prefer that primary season kick off in February as intended? Yes, but given that the Democratic rules pushed the Michigan primary into late February and nudged South Carolina on the Democratic side up to the beginning of the month, the start point creeping two weeks into January is not that bad on the whole. 

The four early Republican carve-out states — Iowa, New Hampshire, Nevada and South Carolina — have, under RNC rules, a window of a month in front of the next earliest contest in which to schedule their own primaries and caucuses. If the Iowa Republican caucuses do, in fact, end up on Monday, January 15, then those contests will have fit within a 43 day window before the Michigan primary, (maybe) the next earliest contest. And given the complications the Democratic calendar changes introduced for Republicans, again, it is not that bad. And it hardly counts as “chaos.”

That scenario -- that Iowa's Republican caucuses and the New Hampshire presidential primary would be outside of that one month granted by RNC rules to the early states -- brought a question into my inbox. Basically, does that set Republicans in Iowa and New Hampshire up for the super penalty? After all, both would seemingly be too early by the RNC definition that far into January.

FHQ would contend that the answer is no.

There was a time -- back in 2008 -- that both New Hampshire and South Carolina were docked half of their delegates for violating the timing rules.¹ But the language in the relevant rule, Rule 16(c)(1) now, was different then when it was Rule 15(b)(1)(i). Instead of a month before the next earliest contest, both New Hampshire and South Carolina were treated just like any other state for 2008, and could not conduct their primaries before the first Tuesday in February. 

However, there was no out for them in the rule. The 2008 Republican National Convention added a carve out for the pair of early primary states (for future cycles) but without specific reference to the actions of other, would-be rogue states, the non-carve-outs. Yet, that was after the fact. When Florida and Michigan crashed into January for 2008, it had the effect of pushing both New Hampshire and South Carolina up. Michigan triggered the first-in-the-nation law in New Hampshire, and Florida's move violated the first-in-the-South position that Republicans in the Palmetto state had carved out for themselves in the calendar over time. Republicans in all four states plus Wyoming ended up taking a 50 percent hit to their national convention delegations. 

As for the states' treatment under the current rule? 

FHQ would argue that they are fine. Yes, the excerpt above from over at Plus noted that Michigan is the next earliest contest, but there is an argument that can be made about the South Carolina Democratic primary being the next earliest state. It was the Democratic National Committee moving the South Carolina primary to the first position for 2024 that ultimately will push New Hampshire and Iowa into January. But the rule is silent on whether it is events on just the Republican primary or the overall calendar of contests for both parties that might serve as the backend of that window of time in which the early states can schedule contests. 

And it will be much easier politically to blame Democrats for contests that are too early than state-level Republicans. Yet, none of this is not official. And until Iowa and New Hampshire are in place on the calendar on the Republican side and the national party has responded, it is an open question. But it is pretty easy to chart out where that would likely go. 

...

In the travel primary...

The other day, FHQ referred to Nevada as "the redheaded stepchild of the early primary calendar." That has meant a number of things over the years since the Silver state was added to the early window of the presidential nomination process. Poorly implemented caucuses. Talk of replacement in the early calendar lineup. But by far the most consistent aspect of this phenomenon is how Nevada measures up to its early state peers. The Nevada Independent tells a familiar tale: Nevada in 2023 lags far behind Iowa, New Hampshire and South Carolina in candidate visits so far in the cycle. 

...

From around the invisible primary...

• Team DeSantis is attempting to make inroads in Super Tuesday Massachusetts. 
• "There’s no chance 'on God’s green earth' he’s [California Governor Gavin Newsom's] running for president in 2024." But maybe campaigning alongside the president is prep for invisible primary 2028.
• The candidates, campaigns and affiliated groups will have to raise it in the money primary, but it looks like Republicans are on pace to spend $1 billion in the 2024 presidential primary cycle. 
• Americans for Prosperity are already knocking on doors in first-in-the-nation New Hampshire.

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¹ Iowa and Nevada were both exempt without mention in the rule because neither selected nor allocated national convention delegates at their precinct caucuses.

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Recent posts:

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Sunday Series: What exactly are Nevada Republicans up to on delegate rules for 2024?

[From FHQ Plus] A glance inside one of the primary alternatives for Idaho Republicans

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See more on our political/electoral consulting venture at FHQ Strategies. 

Sunday Series: About that Unique Michigan Republican Primary-Caucus Plan (Part One)

Looking for Part Two? A closer look at the details of and problems with the primary-caucus hybrid Michigan Republicans have proposed for 2024 can be found at our sister site, FHQ Plus.

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News broke Friday that Michigan Republicans had come to a consensus and were prepared to vote on whether the party would go the primary or caucus route in the presidential nomination process for 2024. 

Rather than automatically utilize the state-run primary as the state party had done every competitive Republican presidential nomination cycle following 1988, the Michigan GOP was backed into a corner on its 2024 plans based on four main factors:

1. Democrats in the state took unified control of state government in the Great Lakes state after the November 2022 midterm elections. 
2. At least partially (if not completely) because of that flip in control of the state legislature and Democrats retaining the governor's office, the Democratic National Committee (DNC) voted to add the Michigan presidential primary to early window lineup of states on the 2024 presidential primary calendar. Michigan Democrats seized on the opportunity to have an earlier, if not greater, voice in the nomination process and moved to comply with the new DNC calendar rules for 2024.
3. However, the new February 27 date for the state-run Michigan presidential primary would violate Republican National Committee (RNC) rules prohibiting states other than Iowa, New Hampshire, Nevada and South Carolina from holding primaries or caucuses before March 1. Opting into the primary, would open Michigan Republicans up to the super penalty associated with a violation of those timing rules, which would strip the state party of all but 12 delegates (nine delegates plus the three automatic/party delegates) to the national convention. 
4. Regardless of the potential for penalties from a rogue primary, Michigan Republicans, under new leadership as of early 2023, were already leery of a state-run presidential primary process that would be open not only to Republicans and independents (who want to affiliate with the party in the primary) but Democrats as well. 

Given those factors, the Michigan GOP in consultation with the RNC did not look on the primary or caucus question for 2024 as either/or but rather as one and the other. In a revised resolution of intent adopted on Saturday, June 10, Michigan Republicans chose to split 2024 delegate allocation across both the February 27 primary and congressional district caucuses to be held on Saturday, March 2. In a statement following the vote the Michigan Republican Party said the following¹:

In a move that threatens electoral representation and undermines the voices of Republican voters in Michigan, the Michigan’s Democrat controlled legislature advanced the Michigan presidential primary to February 27th. This would automatically cause an RNC penalty reducing Michigan Republican delegates at the RNC convention in Milwaukee from 55 to 12!  

This resolution complies with RNC rules and avoids the penalty. 

The Democrats thought they held the keys to whether Michigan Republicans have a voice regarding who is our nominee for president. 

They set the stage to make our process dependent upon when the Democrats end the Michigan’s legislative session. Today that control was destroyed. 

Cutting through the spin

Okay, revisit those four factors FHQ laid out above because they are important in pushing past the spin in all of this and getting to the crux of the matter. 

First, it is highly unlikely that either Michigan Democrats or Democrats in the national party were ever rubbing their hands together, saying "We've got Michigan Republicans now!" The timeline on the Democratic primary calendar decision suggests otherwise. The national party waited until after the midterms -- after it was clear which party was going to be in control of a variety of state governments -- before it settled on a lineup for the 2024 early window. Michigan, already an attractive option to the members of the DNC Rules and Bylaws Committee, became even more attractive once it was clear after the November elections that the state would be under Democratic control. 

The national party decision on the calendar and any subsequent moves made in Lansing were made to affect the Democratic primary. There was little regard for the Republican process. And perhaps that is problematic. However, national Democrats have been rebuffed by the RNC over the last two cycles in their efforts to even informally coordinate the calendar. And on the state level in Michigan, it was Republicans in the state legislature who were driving a legislative push to an even earlier February primary date just a few months ago in late 2022. 

But shunt all of that to side for a moment. Democrats in Lansing and elsewhere were never really in control of anything other than moving the state-run primary anyway. Michigan Republicans always had paths out of trouble. But they were going to need a waiver from the RNC no matter what they chose to do. The point is that Michigan Republicans potentially had a national party waiver at their disposal if they successfully made that case before the RNC. Ultimately, it was state Democrats who had made the change and shifted the primary to a point on the calendar that violated RNC rules. And those rules have outs for just these types of possibilities.

Yet, choosing to go the caucus route would have potentially required a waiver from the RNC too. Michigan Republicans could not just choose to conduct caucuses. Those caucuses would have had to follow the February 27 primary to remain compliant with the RNC rules on timing. But merely opting to hold caucuses would not have ended the primary. Under state law that primary would have gone on as a beauty contest. And under RNC Rule 16 (a)(1), any statewide vote "must be used to allocate and bind the state's delegation to the national convention..." [Put a pin in section of the RNC rules. It is important for Part Two.] To hold caucuses after a statewide vote like that is counter to the intent of the rule, the language of which was added to prevent a double vote and/or non-binding scenario like those that proliferated in the 2012 cycle.

An RNC waiver would have provided a way to circumvent that conflict. But so, too, would have legal action on first amendment, freedom of association grounds (if the national party was for some reason not receptive to issuing a waiver). Political parties have a right to determine how they associate and who associates with the organization. Nominations fall under that banner, or precedent holds that they do anyway. 

The bottom line is this: If Michigan Republicans want to say that Democrats made the primary change without consulting them, then that is fine. That is a fair criticism. If the state party additionally wants to argue it prefers a caucus/convention system closed to all but registered Republicans to an open primary that allows non-Republicans to participate, then that is fine too. That is also legitimate. But exaggerating the control state Democrats have over the process is just that: an exaggeration. That is even more true in light of the fact that Michigan Republicans had recourse. They had ways around Democratic "control." One need not pretend otherwise.

Looking for Part Two? A closer look at the details of and problems with the primary-caucus hybrid Michigan Republicans have proposed for 2024 can be found at our sister site, FHQ Plus.

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¹ The full statement from the Michigan Republican Party after the vote on the resolution:

FOR IMMEDIATE RELEASE
The Michigan Republican Party Protects the Voice of Michigan Republican Voters 

Grand Rapids, MI – June 10th, 2023 – In a move that threatens electoral representation and undermines the voices of Republican voters in Michigan, the Michigan’s Democrat controlled legislature advanced the Michigan presidential primary to February 27th. This would automatically cause an RNC penalty reducing Michigan Republican delegates at the RNC convention in Milwaukee from 55 to 12!  

This resolution complies with RNC rules and avoids the penalty. 

The Democrats thought they held the keys to whether Michigan Republicans have a voice regarding who is our nominee for president. 

They set the stage to make our process dependent upon when the Democrats end the Michigan’s legislative session. Today that control was destroyed.  

The Michigan Republican Party would have been derelict in duty, and grossly irresponsible to leave the decision of full delegate representation of Michigan Republicans in the hands of the Democrats.  

Republican voters are tired of the party seeking to cut deals with Democrats instead of protecting the voice and interest of Republican voters.  

This drastic reduction in representation at the Republican National Convention would have marginalized millions of voters and stifled our ability to have a meaningful say in the selection of the 2024 Republican presidential nominee. The Resolution of Intent passed by the Michigan Republican Party State Committee protects the voice of millions of Republican voters across Michigan by ensuring the will of those voting in the primary will be heard.  

This resolution simultaneously prevents the RNC penalty.  

Recognizing the urgency and gravity of this situation, the Michigan Republican Party State Committee took decisive action today. The Michigan Republican Party has taken a crucial step towards ensuring fair representation for their constituents. 

"The Michigan Republican Party stands firmly against any attempts to diminish representation of Michigan Republicans," said Kristina Karamo, Chair of the Michigan Republican Party.  

"We are committed to preserving the integrity of the electoral process and guaranteeing that all Michigan voters, regardless of their political affiliation, have an equal opportunity to participate in the primary process." 

For those in the party who do not trust the election system run by the Secretary of State due to election integrity concerns, they now have a representative voice for some of the delegates from Michigan.  

By asserting their commitment to protecting the rights of Republican voters in the state, the Michigan Republican Party has demonstrated their dedication to preserving a fair and inclusive electoral system. 

The Michigan Republican Party encourages all Michigan voters to stay informed and engaged in the political process. By participating in the upcoming primary elections, voters can make their voices heard and contribute to shaping the future of our great state. 

###

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Pat Robertson, 1988 and the Modern Caucus Strategy in Republican Presidential Politics

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See more on our political/electoral consulting venture at FHQ Strategies. 

Rules Tweak Alters How Republican Delegates Will Be Bound in 2024

Veterans of the primary wars will recall how Florida and Michigan jumped the queue and held unsanctioned presidential primaries outside of the national party rules during the 2008 cycle. Following that incursion into the early window, both national parties sought to change their respective rules in an attempt to rein in would-be rogue states in future cycles. 

But it didn't take. ...not immediately, anyway.

Despite an informal agreement between the national parties to dial back the beginning of primary season for 2012, it happened again. Florida and Michigan once more held contests before Super Tuesday and were joined by Arizona as well. The start point for all of the states except the earliest four was moved back a month from the first Tuesday in February to the first Tuesday in March, but the penalties -- especially on the Republican side -- remained the same in 2012 as they were in 2008.

It was not until the 2016 cycle when the Republican National Committee (RNC) bifurcated its penalty structure, creating a super penalty for timing violations and a separate 50 percent penalty for those states that broke the allocation rules, that the previously rogue states were finally kept in check.

That offers a cautionary tale for national parties crafting rules to elicit corrective behavior from actors on the state level. Often it can take more than one round -- one cycle -- to get right. 

And so it is in another problem area in the Republican delegate selection process. After all, it was not just Arizona, Florida and Michigan that caused the RNC headaches during the 2012 cycle. There were also a series of states that held non-binding preference votes at precinct caucuses, most of them early in the sequence, that sent roughly 15 percent of the total number of Republican delegates at stake to the 2012 convention in Tampa. But the early timing of most of those "beauty contests" was rather minor. The problem was that preference votes were taken, but had no bearing on the ultimate delegate allocation and selection. 

There could, for example, be a battle between Mitt Romney and Rick Santorum about who won the 2012 Iowa caucuses on the night of the contest, but that had little influence on a delegate selection process that saw Ron Paul out-organize both in subsequent rounds of the caucus-convention process and take more (Paul-aligned but technically unbound) delegates to the convention. 

Two problems emerged from that 2012 experience for Republicans. The first was that states could skirt the timing rules by holding events -- caucuses or conventions -- early. States could gain candidate and media attention and potentially influence the sequential nomination process with nothing, or comparatively little, on the line. That was not against the rules, but it was counter to the spirit of the rules. 

Second, it left any delegates that came out of such processes on the state level technically unbound heading into the national convention; free agents of a sort. This left the door open to a factional candidate possibly outflanking a frontrunner, or even a presumptive nominee, in the delegate selection process and gobbling up, again, technically unbound, delegate slots to the national convention. Done properly, such a candidate could have his or her name placed in nomination and have aligned delegates in positions to fight for rules changes and/or platform additions. 

Ron Paul test drove this tactic in 2008, honed it in 2012 and left lingering whether it would be of consequence for his son in a wide open 2016 Republican nomination race. That, too, may not have been against the rules, but it was still, perhaps, counter to the spirit of the rules.

Of course, one of the controversial rules changes that came out of the rules fights at the 2012 Republican National Convention was one adding new language directly dealing with binding and allocation. It was an attempt at closing the unbound delegate selection event loophole; one intended to solve both problems above. And just as was the case in the transition from 2008 to 2012, when the calendar start point was dialed back, it worked to push most states in line. Notably, Iowa, for example switched from a non-binding caucus in 2012 to one that proportionally allocated delegates based on the statewide results to the precinct caucuses in 2016.

But just like Arizona, Florida and Michigan and those timing rules of 2012, there were some states that once again sought to circumvent the new national party rules on binding for 2016 and stick with their more traditional unbound formulas. It was a smaller pool of potential delegates -- down to just under 5 percent total in 2016 from 15 percent in 2012 -- but it was still a pool of delegates allocated and selected in a manner that did not completely square with the intent of the rules changes. 

The RNC did more or less navigate through this issue during 2016. The party interpreted the rules to include any pledges that delegate candidates made to presidential candidates when filing to run in states like Colorado and Wyoming. Only North Dakota's Republican process among the states ultimately avoided making any real changes and maintained a fully unbound delegation. None had preference votes for presidential candidates, but some delegates were bound due to those pledges (Colorado and Wyoming) while others were not (North Dakota).

However, the 2016 Republican nomination process offered one other wrinkle to this rules saga as it played out. The process pointed out that, while a candidate could be allocated delegate slots and have those slots bound to them and their potential nomination, those delegates -- the people who filled the allocated slots -- may not actually be aligned with that particular candidate. One could see Trump-allocated delegates who were actually aligned with Ted Cruz, for instance. In turn, that raised the specter that if there were enough Trump-bound, but Cruz (or whomever)-aligned delegates at the convention, then mischief could occur. Changes could be made to the rules package on which the convention would eventually vote that could swing the nomination away from the plurality (vote) winner/majority (delegates) winner from primary season, Trump. 

And, indeed, this was a topic of conversation after Donald Trump became the presumptive Republican nominee after the Indiana primary in early May 2016 when all of his main competitors withdrew from the race. A contentious pre-convention meeting of the (convention) Rules Committee seemingly put the matter to rest, ending the talk of releasing 2016 delegates aligned with other candidates and clearing the path for Trump to be nominated in Cleveland.

Yet, that merely resolved the binding issue for 2016. And a rules tweak on the matter for 2020 was less than necessary with an incumbent president seeking renomination/reelection. The party simply carried over its 2016 rules to the 2020 cycle. But for Republican rules makers looking ahead to 2024, further clarifying the rule could close the loophole exploited by states and candidates from 2008-2016.

The same rules that governed both the 2016 and 2020 processes emerged from the 2020 convention in Charlotte. But under its Rule 12 powers, the RNC adopted a series of amendments to the 2024 rules in April 2022. It brought back the debates committee and adjusted the end of the primary calendar. And it also augmented its rules on binding 2024 delegates. 

Here is the language of Rule 16(a)(1) that came out of the Tampa convention in 2012 and was used in 2016, carried over to 2020 and came out of the Charlotte convention in 2020:

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

And here is how the RNC tweaked it in April 2022 [changes marked in bold italics]: 

Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner for at least one round of balloting, except for delegates and alternate delegates who appear on a ballot in a statewide election and are elected directly by primary voters or delegates bound to a candidate that withdraws from the presidential race. States wishing to unbind delegates pursuant to this rule must specify the criteria for doing so in the filing submitted to the Republican National Committee in accordance with paragraph (f)(1) of this rule. 

Much of the language is the same, but it importantly requires state parties to bind delegates for at least one round of balloting at the national convention. And it has been since the 1950s that a convention has gone beyond one roll call ballot. The rule further buttresses that mandate by requiring states to specify the process by which delegates would become unbound. In other words, the delegate selection plans state parties must submit to the RNC under Rule 16(f)(1) must lay out at what point -- after how many roll call ballots -- delegates become free agents (in the off-hand chance it goes beyond that point). 

And honestly, most state parties were already doing this. Look at the third column from the right in the chart here. Most states have been doing this, but the change above forces the handful of laggards in line. Those changes tighten up the rules and leave a lot less room to maneuver toward the types of mischief that have occurred in recent cycles. 

Caucus states can still go the North Dakota route in 2024, but it would be difficult to justify in light of the above rules and the fact that most states had a statewide preference vote and/or had delegate candidates pledge to particular presidential candidates in the immediately preceding cycles, competitive or otherwise.

And yes, the national convention remains the highest authority in these matters. A convention could adopt rules counter to the intent of the above, but would only do so after primary season has played out in all 56 states and territories under those rules. That is easy to say, even easier to consider, but hard to pull off in real time after voters have voted and indicated a winner (even if by plurality).

Is that binding loophole completely closed now? No, but it is a much tighter one after these changes than it was. Rules matter. 

...even after seemingly small changes.

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See more on our political/electoral consulting venture at FHQ Strategies.

The Republican Rules for 2024 Present Some Calendar Opportunities

Understandably, there has been a lot of talk surrounding the changes to the Democratic Party presidential primary calendar for 2024. 

However, comparatively little attention has been paid to the calendar on the Republican side. That disconnect is, perhaps, even more unusual and interesting considering that the Republican presidential nomination process is the one where most of the action will be in 2023-24. Theirs is the more competitive of the ongoing nomination battles. But much of the relative quiet on the Republican calendar front is owed to the fact that the early calendar has been locked in since the Republican National Committee (RNC) adopted its rules for 2024 in April 2022. Iowa, New Hampshire, South Carolina and Nevada will be the first states. One may not yet know where exactly on the calendar each will fall, but they can fall, by rule, "no earlier than one month before the next earliest state."

Yet, thus far in 2023, there is little evidence that primary and caucus placement for the remainder of the states is a top priority for Republicans in state legislatures across the country. There is no rush, for example, to schedule primaries for a spot that represents "the next earliest state." And there is room to maneuver for that title. 

Here is how:

Beginning in the 2016 cycle, the RNC made a small change to its rules that in subsequent cycles has created a divide between the Republican and Democratic parties' presidential primary calendars. In 2012, both parties allowed all contests that were not Iowa, New Hampshire, Nevada and South Carolina to conduct primaries and caucuses as early as the first Tuesday in March. The Democratic Party continues to use that language. That is the point at which "the window" opens for non-exempt states to conduct contests.

But on the Republican side, the language changed. Instead of the first Tuesday in March it became March 1 during the 2016 cycle and it has stayed March 1 in the rules ever since. That mattered little in 2016 because March 1 was the first Tuesday in March. However, while the Democrats' first Tuesday in March position has remained anchored in place, the March 1 of the Republican rules shifts around from cycle to cycle. That was less consequential in 2020 when there was no sustained challenge to President Trump's hold on the Republican nomination.

However, in 2024, March 1 falls on a Friday, the Friday before what at this point looks to be Super Tuesday on March 5, 2024. That is the point on the calendar where the most states' primaries and caucuses are congregated and the date that is the most delegate-rich date on the calendar (at this time). That divide between the two parties' calendars presents an opportunity for states to potentially shift into a more advantageous position without penalty. 

Yet, again, there has been no effort undertaken thus far by Republican state legislators in particular to exploit that calendar divide between the parties. FHQ has raised the possibility of Democrats in Georgia and nationally offering a Saturday, March 2 spot as a compromise position to a Republican secretary of state who has to this point resisted efforts to move the Peach state primary deeper into February because of the prospect of national party penalties. Nothing, however, prevents other states from shifting into that same position or up to a day earlier to Friday, March 1. 

Part of the issue here is that the RNC rules stray not just from those of national Democrats but from how primary date scheduling laws are crafted on the state level. In the vast majority of cases, presidential primaries are affixed to a day on the calendar and not a particular date. State laws call for an election to take place on the first Tuesday after the first Monday in November or the first Tuesday in March and not March 1, for instance. The latter moves around from cycle to cycle and could potentially sow voter confusion when a March 1 primary would be on a Friday in 2024 and then a Wednesday in 2028. 

That, however, is a thinking that hews closely to tradition, but not one that cannot be overcome. A state law that gets changed in, say, Oklahoma from the first Tuesday in March to simply March 1 uproots the contest from a typical Tuesday, but aligns the primary with RNC rules (as they exist now). And that change offers the benefit of being ahead of the first Tuesday in March where other states' contests have clustered. A modest benefit in 2024 would be a bigger bonus four years later when a March 1 primary would be nearly a week before the usual Super Tuesday.

Of course, that may benefit Republicans in Oklahoma, but would put Democrats in the Sooner state in much the same situation in which Michigan Republicans currently find themselves. That is, stuck in a noncompliant primary they are powerless to change in a state legislature controlled by the opposing party. That would create some headaches, but not for the party in power. 

But this is the sort of instability that is manifest when the national parties are not on the same page. They do not have to formally broker any sort of agreed upon point on the calendar at which non-exempt states can start holding primaries and caucuses, but it is clearly in both national parties' interests to have a uniform start time to "the window." It would cut down on these sorts of cross-party scheduling snafus that present problems from time to time, an issue similar to the divide that now exists in the early calendar lineup. In the end, state actors will be attracted to opportunities that allow their state to be showcased away from the rest of the pack. And states can play that against national parties that do not present a united front in return.

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Recent posts:

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Senate Companion Introduced to Reestablish Missouri Presidential Primary

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See more on our political/electoral consulting venture at FHQ Strategies.

The RNC Presidential Primary Debates Committee is Back for 2024

Lost in all the recent talk of the Republican National Committee (RNC) reaching out to a diversity of networks during the planning stages for presidential debates to come later this year was the fact that behind it all is a national party committee. 

The on-again-off-again presidential primary debates committee is back on again for the 2024 cycle. First written into RNC rules in 2014 for the 2016 cycle as the Standing Committee on Presidential Primary Debates, the rule and the committee were scrapped for 2020. And both moves made sense at the times those decisions were made. With a wide open and competitive nomination race to replace a term-limited (Democratic) president on the horizon, it was sensible and shrewd for the RNC in 2014 to devise formal rules to dictate the direction of its primary debates, an increasingly visible if not important component of the invisible primary, for the 2016 cycle. But with an incumbent president seeking renomination in 2020, the standing committee became less necessary with only token opposition lining up to contest President Trump's grip on the nomination.

 

Yet, with the conditions of 2024 more likely to resemble those of 2016 than 2020, the necessity of a debates committee became apparent once again. There were not many changes to the rules adopted by the 2020 Republican National Committee before Rule 12 cut off the ability to amend them before last September. There were some. And one of them was to bring back the presidential primary debates committee for 2024. 

...with some important differences from the previous iteration. 

Here is a look at both rules side by side (from the Rules of the Republican Party):

2016 

[originally Rule 10(h), but later reordered as Rule 10(a)(10) for 2020 before being eliminated]

There shall be a Standing Committee on Presidential Primary Debates, which shall be composed of thirteen (13) members of the Republican National Committee, five (5) of whom shall be appointed by the Chairman of the Republican National Committee, and each of the four (4) regions shall elect two (2) members, one man and one woman, at its regional caucus at the RNC Summer Meeting in each even-numbered year in which no Presidential election is held. The chairman of the Republican National Committee shall appoint the chairman of the Standing Committee on Presidential Primary Debates from among the members thereof. The Standing Committee on Presidential Primary Debates shall have the authority to sanction debates on behalf of the Republican National Committee based on input from presidential campaigns and criteria which may include but are not limited to considerations of timing, frequency, format, media outlet, and the best interests of the Republican Party. Each debate sanctioned by the Standing Committee on Presidential Primary Debates shall be known as a “Sanctioned Debate.” Any presidential candidate who participates in any debate that is not a Sanctioned Debate shall not be eligible to participate in any further Sanctioned Debates.

2024

[the new Rule 10(a)(11)]

If appointed pursuant to subsection (c) of this Rule, the Temporary Committee on Presidential Debates shall have the authority to sanction debates on behalf of the Republican National Committee based on input from presidential campaigns and criteria which may include but are not limited to considerations of timing, frequency, format, media outlet, candidate qualifications, and the best interest of the Republican Party. Each debate sanctioned by the Temporary Committee on Presidential Debates shall be known as a “Sanctioned Debate.” All presidential primary candidates shall also agree in writing to appear in only sanctioned Primary and General Election debates. Any presidential primary candidate who does not agree in writing or who participates in any debate that is not a Sanctioned Debate shall not be eligible to participate in any further Sanctioned Debates. 

[emphasis FHQ's]

[1] The subsection (c) clause that now begins the rule refers to the RNC chair's power to form committees. That is a significant substitution because it rids the national party of the need to constantly tweak the rules every cycle dependent upon whether an incumbent Republican president is seeking reelection. If the chair has the discretion to create committees, then there is no need to continually craft and re-craft rules to deal with what will inevitably be a recurring issue. To wit...

[2] In addition, the committee in future versions will be temporary (if formed under the chair's discretion at all) and not a standing committee as it was in its previous iteration during the 2016 cycle. There is no need for a standing committee, but there is some regular and recurring need for a committee to deal with this subject.

[3] The next difference between the 2016 and 2024 versions of the rule is notable. The list of criteria the committee will consider before finalizing rules governing the presidential primary debates process has been enhanced to include candidate qualifications. While a polling threshold was used in 2016 to differentiate between those candidates who qualified for the main event debate and those relegated to the secondary debate, that was something that was not a formal part of the rule for the 2016 cycle. The standing committee (and the RNC itself) at the time filled in that detail. However, by formally adding candidate qualifications to the calculus, the RNC process comes more in line with how the Democratic National Committee (DNC) handled things under competitive conditions for the 2020 cycle. Granted, what constitutes "candidate qualifications" remains undefined as of now (and will remain so in the rules), but the temporary committee will no doubt again fill in that detail.

[4] Another facet of the 2024 rule that is new also borrows from the 2020 DNC process. Only, the Republican rule for 2024 takes it a step further. Republican candidates, by rule, will have to sign a pledge to participate in only debates "sanctioned" by the committee. Like the 2020 DNC process, that applies to presidential primary debates. Unlike the Democrats four years ago -- or Republicans eight years ago, for that matter -- that pledge will also apply to the eventual nominee and his or her participation in general election debates. Following the RNC's 2022 split with the Commission on Presidential Debates, there is some question as to whether the party will, absent some negotiation, participate in general election presidential debates. The temporary committee now has the power to sanction (or not) those debates. And candidates who sign the aforementioned pledge will presumably have to abide by that in the fall of 2024. Of course, the eventual nominee will likely have some significant say in whether he or she participates in those debates in the same way that a presumptive nominee has a say in his or her convention. 

[5] Finally, there is a whole section on selection of the committee in the 2016 version of the debates committee rule that has been stricken from the 2024 version. Ultimately, the chair has discretion over the creation of the committee, but under the current rule, there are no clear parameters concerning the size and selection of the membership of the temporary committee. In 2016, the RNC chair had five selections of thirteen with the remaining eight given to the four regions into which the RNC divides states and territories. Now, not only does the chair have the power to form the committee, but also has the ability to select its entire membership. This likely means little for the remainder of the 2024 cycle. The committee has already been chosen and has begun acting, reaching out to media outlets and considering borrowing DNC-type thresholds. Of course, there could be a new RNC chair after the 2023 RNC winter meeting, but it is unlikely that a new chair would disband the current panel and re-form it with the new chair's stamp. It would be unlikely but not impossible since the rule is silent on any transition to a new chair. 

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It Isn't Just the Democrats Who Are Shaking up the 2024 Presidential Primary Calendar

Ever since early December when the DNC Rules and Bylaws Committee adopted President Biden's early calendar proposal there has been a lot of talk around here and elsewhere about how those changes may affect how the beginning of the 2024 presidential primary calendar develops. Bumping the South Carolina Democratic primary up to the first slot will likely have the effect of pushing at least the Iowa Republican caucuses and New Hampshire primary into January. 

But there may be some changes forthcoming at the end of the calendar as well. 

Last week the Republican National Committee (RNC) announced the dates of its 2024 national convention set to take place in Milwaukee. And the July 15 kickoff will trigger a new provision in the rules of the Republican Party amended earlier this year. It has been the case over the last few cycles that the RNC, much like their DNC counterparts, set a window in which most states can hold primaries and caucuses. On the Democratic side that Rule 12.A window runs from the first Tuesday in March through the second Tuesday in June. And the Republican equivalent for the last two cycles described in Rule 16(c)(1) has been from March 1 until the second Saturday in June. 

Only now, there is an additional OR phrase tagged on the back end of the defined Republican window. Contests must now be held on or before "the second Saturday in June in the year in which a national convention is held or less than forty-five (45) days before the national convention is scheduled to begin."

That is where the convention decision from last week comes into play. 45 days before July 15 is Wednesday, May 31, 2024. All Republican primaries and caucuses, then, must be completed by the end of May which, in turn, means that a handful of states are out of compliance (or will be) with June primary dates scheduled under various state laws. 

Five states and territories -- Montana, New Jersey, New Mexico, South Dakota and Washington (DC) -- will all have to either change the dates of those contests or make alternate plans. Republican control at the state level in Montana and South Dakota means changes are more likely there than elsewhere in places where Democrats hold the levers of power. But changes will have to occur in those states as well. DC Republicans already had to deal with a similar issue -- one where the primary was too late to comply with RNC timing rules -- when a mid-June primary scheduled for the 2016 cycle forced the party to opt for a March convention. Without amended laws, the others will have to seek out state party-run paths to compliance if the current laws are left unchanged. 

Now, to be clear, like the beginning of the calendar where small delegate caches do not make a huge difference in the grand scheme of a nomination race, this change at the back of the calendar likely will not be decisive. Together those six states and territories would have comprised just under seven percent of the total number of Republican delegates at stake in 2020.¹ However, this rules change will have the effect of further compressing the overall calendar. Not by much, but it will push the end of the calendar up by a couple of weeks while the DNC decision on their pre-window will widen it by about as much if not a little more once Iowa and New Hampshire settle into place for the Republican process. 

In the end, this is another way in which the two national parties have diverged in their thinking -- if not approach to -- the 2024 presidential primary calendar. 

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¹ For Democrats, the share is even smaller. The five states amounted to nearly six percent of the total number of Democratic delegates in the 2020 cycle.

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Recent posts:

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A Glance at Where the 2024 Republican Delegate Selection Rules Stand

Much was made last summer during convention season when the Republican National Convention carried over the party's 2016 platform and adopted it with no changes at the scaled down 2020 convention in Charlotte. It was an atypical move.

And while it left questions about why the party would leave a party document unamended in the face four years of changes, it also raised issues about the process in other areas. Always keen to be on top of any potential delegate selection rules changes for the next cycle, FHQ watched with bated breath but ultimately to no avail. Reporting was light on the subject -- it is never really heavy -- and the convention came and went with no fanfare about 2024 rules. 

So did that mean that the Republican convention did with the party rules what it did with the platform, leaving them largely unchanged? Or were changes quietly pushed through that would shape and reshape how the process would work in this next cycle, forcing (prospective) candidates to adjust their and their campaigns' behavior along the way? 

The answer upon looking at the 2020 Rules of the Republican Party -- those that will govern the 2024 Republican presidential nomination process -- lean heavily, but not completely toward the former. 

Changes to the relevant sections of the rules coming out of the 2020 convention were minimal. 

Now, that does not mean that the process is locked in and codified for the 2024 cycle. For much of the post-reform era the Republican Party set its rules at the convention and that was that. Those were the rules that would provide guidance for the next cycle despite any need for changes that might arise in the intervening period. This differed from a Democratic Party that routinely reexamined and tinkered with its rules between cycles. 

But that protocol changed after 2008. Coming out of the St. Paul convention, Republicans charged a committee -- the Temporary Delegate Selection Committee -- with considering changes to certain aspects of the 2012 GOP presidential nomination process (the then-Rule 15 on the election, selection, allocation and binding of delegates). And from that effort the RNC adopted changes codifying the positions of Iowa, New Hampshire, Nevada and South Carolina at the beginning of the calendar and required (for the 2012 cycle) that states with contests before April 1 provide for a proportional allocation of their national convention delegates. [Although it did not formally end up in the rules, the RNC in 2011 added definitions for what constituted proportional allocation.]

That same basic operating procedure extended to the 2016 cycle, but it was formalized with the addition of Rule 12 that allowed the party to make changes to the rules governing the Republican National Committee and those that affect the convening of the next convention. Rule 12 gave the RNC Rules Committee the ability to make changes on a majority vote that then had to be approved by a three-quarters supermajority of the full RNC. Under the new rule, the RNC formally inserted the proportional allocation guidance (with some modification) from 2011 into the rules for the 2016 cycle and specified penalties for both allocation violations and timing violations. 

Rule 12 survived the 2016 convention in Cleveland, but the convention also adopted rules creating a specific Temporary Committee on the Presidential Nominating Process. Its only accomplishment ahead of the largely uncontested 2020 Republican presidential nomination process was eliminating a primary debates sanctioning committee.

History lessons aside, what does all of this mean for the rules package that emerged from the 2020 Republican National Convention? Again, the changes were minimal, but the main consideration here is whether Rule 12 survived intact to see another cycle. And the answer there is yes. The amendment rule carried over into the rules that will govern the 2024 process largely unchanged. And that was only a technical change, removing a date in 2018 and replacing with language that will work without amendment moving forward. [Instead of having the rules finalized before September 30, 2018, the party now has to make any changes on or before "September 30 two years prior to the year in which the next national convention is to be held."]

And that is really it. 

...for now.

There were no changes to Rule 16 (on the selection and allocation of delegates) or Rule 17 (on penalties for any Rule 16 violations). And in perhaps a mark of how hastily the 2020 convention rules were assembled, Rule 10(a)(10) remains as well. That is the rule creating the Temporary Committee on the Presidential Nominating Process, including how it should be empaneled in 2017 and complete its work by 2018. 

What we are all left with, then, is a baseline set of rules from which the RNC Rules Committee will operate under Rule 12 with 2024 in mind. With that rule still in place, there will very likely be changes made. But the question at this point is the extent to which the rules of the Republican Party will be changed from version 1.0. Will the process from 2020 largely carry over to 2024 with only technical changes to clean up items like the Rule 10(a)(10) issue above? Or will the committee and ultimately the party dig into Rules 16 and 17 and reconfigure the delegate allocation rules and their penalties? 

Again, they are working with a baseline set of rules and a considerable amount of room for some changes. 

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#InvisiblePrimary: Visible -- Nikki Haley and 2024

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#InvisiblePrimary: Visible -- RNC Neutrality in 2024

One of the parlor games of the moment inside and outside the beltway in DC is the hunt for any break between the Republican Party (in its many forms) and former President Donald Trump. 

Senate Minority Leader Mitch McConnell (R-KY) reportedly has no desire to speak to Trump again, but House Minority Leader Kevin McCarthy (R-CA) is headed down to Florida for a fundraiser and will speak with the former president in the process. But again, that is just one facet of the Republican Party, the party-in-government. 

The formal party apparatus itself, the RNC, recently broke with how it dealt with the president in 2019 ahead of the 2020 presidential primaries. Ronna Romney-McDaniel, the recently re-elected chair of the Republican National Committee, told the Associated Press in an interview...

“The party has to stay neutral. I’m not telling anybody to run or not to run in 2024. That’s going to be up to those candidates going forward. What I really do want to see him do, though, is help us win back majorities in 2022.” [McDaniel's response when asked whether she wanted to see Trump run again in the next presidential election.]

While that is a formal declaration of the chairwoman and is consistent with the rules regarding the conduct of the RNC in contested presidential nomination cycles, it differs from the national party's approach to 2020. It was, after all, at the RNC winter meeting in 2019 when the party stopped short of formally endorsing the president's renomination and reelection, but passed a resolution lending Trump the party's "undivided support." [The difference between a full endorsement and the symbolic show of unanimous support of the president among the party membership was one rooted in financial support (that an endorsement would have carried). But it should be noted that the RNC and the Trump reelection forces had already united by that point.]

Now, conditions are different in 2021 than they were in 2019. Trump is no longer the sitting president as he was then. Additionally, McDaniel's comments are not a reflection of any formal vote of the RNC membership (but merely a recitation of the party rules on the matter) as opposed to 2019. But in the end, formal or not, they mark a departure from the party's 2019 position and creates some light between the party and its (formal) former standard bearer. 

However, it will likely be Trump moving forward who will freeze the potential field of 2024 Republican candidates and not the Republican National Committee. But this is one to track as the invisible primary lurches forward. 

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Republican Proportionality Rules Changes for 2016, Part Three

The Myth of Winner-Take-All
FHQ spent considerable time during the back half of 2011 and into primary season in 2012 arguing/demonstrating that the then-new proportionality requirement the Republican National Committee had added to its delegate selection rules just would not and did not have the type of effect many anticipated. Most state Republican parties did not fundamentally alter the way in which they were allocating delegates to the national convention. Instead those state parties in most cases tweaked their earlier/traditional plans just enough to fit the new rules. The effects were minimal.

The 2016 presidential nomination cycle offers another national party change to the parameters of the proportionality requirement. FHQ detailed those changes in part one of this series and then examined the possible implications of those changes in part two.

Yet, FHQ fears that focusing on the proportionality window primes readers to think only about the implications of the rules changes on contests within that period on the calendar. There will be primaries and caucuses after March 14, 2016, and there is already much discussion/speculation about how state Republican parties in states with contests after that date are adapting their rules. Too often, the assumption is that states after that point are or will be winner-take-all.

There is a reason FHQ referred to the phase starting on March 15 as the post-proportionality window part of the calendar in part two. While there is a requirement that states' delegate selection/allocation plans fit the RNC definition of proportionality, there is no similar requirement for winner-take-all allocation after that point. States, as FHQ argued in 2011-12, are free to choose whichever delegate selection method they wish to institute if they conduct a primary or caucuses after that March 14. Again, this is the way the relationship worked between the national and state parties for the whole calendar before 2012. States were able to choose from an array of options, and the RNC was more than willing to let them. As one RNC official told FHQ in 2012, "Let them [the states] figure it out."

That did not produce a calendar full of winner-take-all primaries and caucuses, though. In fact, in 2008, the last cycle in which states had total freedom to set delegate selection rules of their choosing (without oversight and regulation from the RNC), there were only 11 truly winner-take-all contests (where even if a candidate won a plurality of the vote by just one vote, that candidate would receive all of that state's delegates).

Given the change for 2012 -- adding the proportionality requirement -- the assumption seems to have been, "Well, if you have the option to be winner-take-all, why not be winner-take-all?" Only states with contests after March 31 (in 2012) were not lining up to actually switch to or maintain a winner-take-all method of allocation. Outside of rules breakers Florida and Arizona -- both were winner-take-all prior to April 1 during the 2012 cycle -- there were only four truly winner-take-all primaries: Washington (DC), Delaware, New Jersey and Utah. That is four out of 22 states with contests after April 1. Three of those 22 states -- Connecticut, New York and Texas¹ -- actually transitioned from winner-take-all or winner-take most plans in 2008 to more proportional methods in 2012.

...after the point on the calendar when the proportionality window had closed.

The question that emerges from those example is why. Why would a state, given the winner-take-all option, not take advantage of it or actually transition away from it? There are a lot of reasons. FHQ will focus on the two main factors though. One is state law. A number of states added proportionality requirements to state law after the Democratic National Committee began its blanket proportionality mandate in the 1980s. Many Democratic-controlled state legislatures (of which there were many more than today) simply added that to the state statutes regarding presidential primaries. Many of those laws continue to be in place now. And they affect the Republican nomination process too. State Republican parties have to follow those laws also, in other words. North Carolina is a good example of this.

The second main factor that contributes to Republicans maintaining some allocation method other than a winner-take-all one (even after the proportionality window closes) is that not all Republican state parties are homogenous. Often there are factions in state parties. And those factions do not necessarily want to see a presidential candidate more representative of another faction make off with all the delegates from that state. To their way of thinking, that does not represent the diversity of voices within the state's Republican Party or primary electorate. It isn't fair.

Another way of saying this is that politics, internal party politics, often plays a role in determining the  method of delegate allocation that a state party chooses. Back in the fall of 2014 when Michigan Republicans were eyeing a March 15 primary date, this very sort of discussion occurred. Some within the party argued that a winner-take-all primary would maximize the influence of the Michigan Republican primary. Others argued that it was more important for the primary to more accurately reflect the choices of the voters. They opted for a compromise winner-take-most plan that was a middle ground between the two camps.²

The bottom line here is that despite the fact that the winner-take-all option is available, most Republican state parties do not actually adopt such allocation plans. Well, they have not in the past. That may change in 2016. There may be a rush to winner-take-all methods by states with primaries or caucuses after March 14 on the 2016 presidential primary calendar. The reality, though, is that state laws will preclude that in some cases. In some others, a heterogeneous state party apparatus will prevent such a change. That negative inertia within the state party tends to maintain the traditional method of allocation. No consensus means no change. This is something FHQ often chalks up to "tradition" in this space. It is more nuanced than that.

If one wants to project which Republican state parties will have a winner-take-all method of allocation after March 15, then look to the states that have some history of winner-take-all allocation. Arizona and Florida have that tradition and have moved their primaries to points on the calendar after March 14 to avoid the super penalty and protect that winner-take-all tradition.³ Missouri Republicans are also positioned at a point on the calendar that will allow them to return to the winner-take-all method the party used prior to 2012.

There is talk that Ohio Republicans are considering a winner-take-all plan. That explains some of the reasoning behind a new bill to push the presidential primary in the Buckeye state back a week to March 15. However, the tradition in Ohio is winner-take-most and not winner-take-all. That traditional winner-take-most (or winner-take-all by congressional district) plan would not be compliant under the RNC rules on March 8.

For now, however, there is no group of winner-take-all states massing on the border between the proportionality phase of the calendar and the post-proportionality part of the calendar. That all states or most of them will be winner-take-all when the clock strikes midnight on March 15 is a myth. Some of them will be. Others, most perhaps, will not be if history is our guide. Some will be winner-take-all, others will be proportional, and yet others will be winner-take-most. There is a subtle difference between proportional allocation and winner-take-most plans that typically yields very little difference in terms of the actual allocation (if one was traded out for the other). Multiple candidates tend to emerge with delegates in each. However -- and this is the take home point -- there is a big difference between truly winner-take-all plans and everything else.⁴ That is where the disconnect is in the discussion. The line of demarcation tends to be between proportional and every other method. That lumps winner-take-most plans in with winner-take-all plans.

That practice is not helpful. Winner-take-most plans are not winner-take-all plans. There needs to be a stronger effort to parse out this distinction rather than assuming there is not one. A winner-take-most state like California, where more than one candidate can earn delegates, should not be confused with or lumped into a group of winner-take-all states like Arizona, where only one candidate -- the statewide winner -- is eligible to receive delegates. That that distinction is often ignored is hurting our ability to talk accurately about the Republican presidential nomination process and how it is likely to progress in 2016.


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¹ Texas Republicans adopted a proportional delegate allocation plan in 2011 when it was assumed the party would have a first Tuesday in March primary. Disputes over redistricting pushed the Texas primary back to May 29, but the allocation method stayed proportional.

² Now that Michigan will hold a March 8 primary, the delegate allocation plan Wolverine state Republicans will have to use will have to be more proportional in nature to meet the RNC requirements.

³ Florida Republicans' tradition with a truly winner-take-all method of delegate allocation is a recent one. As FHQ has explained, Florida traditionally had a winner-take-all by congressional district method of delegate allocation. That carried over into the party's rules for both 2008 and 2012. However, since Florida Republicans were penalized by the RNC for holding a primary before the period allowed, that triggered a truly winner-take-all allocation method. It remains to be seen whether the Republican Party of Florida will change its rules to accommodate a truly winner-take-all allocation or stick with its traditional winner-take-most plan. But the party will have to change its rules in order to implement the former.

⁴ This is why Democrats tend to freak out when Republican-controlled blue (presidential) states consider changing from a winner-take-all distribution of electoral college votes to something else. It represents a big change (on the state level).

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Republican Proportionality Rules Changes for 2016, Part Two

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