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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2016 vs. 2012 and the Republican Delegate Count

Now that the Republican presidential primary process has entered March and hit hyperdrive, many are beginning to more closely examine the rules changes the Republican National Committee (and the Republican National Convention in Tampa) made for the 2016 cycle. At the core of that is a simple question: How have the rules impacted the progress of the race?

The answer to that simple question, however, is not so simple. Some have blamed the proportionality requirement at the beginning of the March part of the primary calendar. Others have pointed the finger at the newly compressed 2016 primary calendar for the results in the contests to date. The problem is that both of those explanations miss the mark by failing to take a deeper look at what has really changed with the rules for 2016 and how that has affected the actual delegate count. Both arguments basically hide behind the complexity of both changes without really offering an adequate answer to the original question.

There are at least two other explanations that better explain the differences in the delegate counts at similar points in the 2012 and 2016 cycles.

1) Texas
The Texas primary -- and its 155 delegates -- were in May in 2012. Think about that. That is 155 delegates that were virtually at the end of the 2012 process. In fact, it was those Texas delegates that pushed Mitt Romney past the 1144 delegates he needed to clinch the Republican nomination four years ago.

But the Texas primary was only scheduled for May because a redistricting dispute in the courts forced its delay. Originally, it was planned -- by state law -- for the first Tuesday in March. Just like this cycle (and every other one from 2008 back to 1988).¹

With Texas back to normal in March for the 2016 cycle, those 155 delegates -- 12.5% of the number of delegates required to clinch the nomination -- ended up at a considerably earlier point on the calendar than had been the case since the 1988 Southern Super Tuesday. Not only was the Texas primary earlier for 2016, but the Lone Star state had a favorite son vying for the nomination. Without those 104 delegates, that favorite son -- Ted Cruz -- would not be in nearly the favorable position in the delegate count as he is at this point in early March on the calendar.

Cruz would lose 56 delegates to Donald Trump. That is the surplus he had over the real estate tycoon in the Texas delegate count. Furthermore, he would lose the 101 delegate advantage he had over Marco Rubio leaving Texas. Without an early Texas primary win, Cruz would not be as close to Trump in the delegate count and would be closer to Rubio and third place in the delegate count than Trump in first. In other words, Cruz would look a lot more like Gingrich and Santorum did relative to Romney in 2012.

It just cannot be understated how important that Texas win was for Cruz. And no, the position of the Texas primary on the 2016 calendar had nothing to do with the Republican rules changes in Tampa and thereafter.


2) Unbound delegates
While the Texas factor is not a rules-based change, there is one rules change that to this point has taken a back seat to other explanations; those arguing that the course of the 2016 Republican presidential nomination race is a function of proportional rules and/or a compressed calendar. The focus on those two changes is mostly misguided as the national party rules changes -- particularly with regard to proportional delegate allocation -- did not really yield that much change in the state-level rules. It has not to this point anyway.

The one thing that many are missing that has actually more directly affected (made things appear more competitive) the current delegate count relative to the one four years ago, is the new binding requirement the RNC instituted for the 2016 cycle. Gone is the fraction of automatic delegates who were more like superdelegates four years ago. Gone are the fantasy delegates from all those non-binding caucuses. Those delegates are mostly bound or will be bound in 2016. Iowa, Minnesota and Maine (and eventually Washington and Missouri) were all non-binding in 2012. Not in 2016. In the case of those first three, the delegates were allocated proportionally with either no or a very low threshold. That is making the delegate count more competitive. Delegates were allocated to a larger number of candidates in 2016 rather than being unbound as they were in 2012.

That is not necessarily affecting the gap between candidates in the current delegate count, but it is providing more delegates to more candidates instead of no candidates.

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What effect have those two changes had on the delegate count cycle over cycle from 2012 to 2016?

If one backs out the Texas delegates and the unbound delegates (based on the formerly non-binding caucus state that have conducted caucuses at this time) from the 2016 count, 2016 looks even more like 2012. Cruz is, perhaps, a stronger version of Santorum (each won/has won multiple states) and Rubio is a weaker Gingrich (still each has/had two wins). Kasich stands in as Ron Paul; not winning contests, but winning delegates. Here is what that comparison looks like:

2016 (25 states)
Trump: 391
Cruz: 221
Rubio: 126
Kasich: 51
Unbound: 17


2012 (26 binding states, 32 total)
Romney: 454 R
Santorum: 172 S
Gingrich: 138 G
Paul: 27 P
Unbound/Unpledged: 292²

Again, there has been no accounting for the calendar changes -- other than a non-rules-based shift of the Texas primary -- or proportionality rules in this. In this exercise, the Texas delegates have been removed from the 2016 total as have the formerly unbound delegates in now-binding Iowa, Maine and Minnesota. The picture that leaves is one where the delegate leaders are within about 50 delegates of each other. Perhaps that is attributable to a newly compressed calendar and/or (an admittedly smaller) proportionality window in 2016. But a strong argument could also be made that the differences in the leaders' totals at similar points on the calendars in 2012 and 2016 is explained by a weaker frontrunner in 2016 than in 2012. That seems to be demonstrated by what looks like a basically 50 delegate shift between first and second place in 2012 versus 2016.

This is a surface level exercise, but it is quite suggestive.

Blame the rules?

Not really. The rules in 2016 -- as has been the case for the rules of the Republican process in the past -- are still designed to aid frontrunners/winners; to ease the way to a presumptive nominee. That is still happening.

The bottom line is that the rules changes have had an effect, but not in the way that many think. Maybe the finger should be pointed not at the compressed calendar and the proportional rules, but somewhere else instead.

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¹ Texas did shift from the second week in March to the first week in March in its law ahead of the 2004 cycle, but that change was delayed until 2008. From 1988-2004, then, Texas was on the second week in March on the calendar.

² That this number is so much higher is a function of there being six more contests in 2012 than in 2016. Those non-binding contests drove up the total number of delegates.

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Colorado Republicans' Preference-less Caucuses and the Delegate Binding Conundrum

Late last week, the Colorado Republican Party executive committee unanimously voted to hold caucuses next year but to do so without a presidential preference vote. The opening precinct caucuses across the Centennial state would initiate the delegate selection process, but not include a vote on which to base the binding of those delegates to the national convention. In part, that was intended to allow Colorado Republicans the latitude to conduct those caucuses as early as February 2, but also to keep the overall process as consistent with the past standard operating procedure the state party has traditionally utilized.

That party protocol has been to keep the delegation to the national convention unbound (though not necessarily unpledged/unaligned to particular candidates). A change in the Republican National Committee delegate selection rules for the 2016 cycle, however, necessitated some change in the state party rules in Colorado. Either the party could hold caucuses with a presidential preference vote that would bind the delegates to particular candidates, or it could seemingly reduce its role in the nomination process by removing the preference vote altogether as a means of skirting the binding provisions (in order to maintain an unbound delegation at the Cleveland convention).

Colorado Republicans have chosen the latter.

Yet, one of FHQ's reactions to this change was that this was possibly only part of the process of changing the rules. Executive committees tend to make/recommend changes but state central committees ultimately ratify them. The Colorado Republican rules change has cleared the first barrier but not the second. This has been underreported to this point, but was made quite clear in former Colorado Republican Party chair, Dick Wadhams', op-ed response to the decision to eliminate the caucus's preference vote.¹ Wadhams was asking for reconsideration of the unanimous executive committee vote at the state central committee meeting next month.

And the party may be headed in that direction if Colorado's Republican National Committeeman, Mike Kopp, is to be believed. Kopp, who was not present for the executive committee vote last week told the Denver Post's John Frank that the decision to eliminate the preference vote at the caucuses was based on a misinterpretation of the RNC delegate selection rules.

There is a lot that does not add up about that conclusion and/or the process from which it was derived. First, FHQ spoke with Frank about his initial story concerning the preference vote decision. In our discussion, Frank mentioned that he had spoken with someone at the RNC and that the party had said that the decision out of Colorado was "rules compliant". Second, Kopp may not have been at the executive committee meeting, but FHQ is hard-pressed to imagine that there was no forewarning -- no agenda -- about what would transpire. The Colorado Republican Party informed FHQ in late July that the rules for 2016 would be considered at a late August executive committee meeting and finalized at a late September state central committee meeting. This could not or should not have come to a surprise to either the RNC or one of the Colorado representatives in the body.

That is perhaps a long way of saying that FHQ does not buy the "misinterpretation" angle in this instance. It feels more like there is some back channel pressure from the RNC for Colorado to bind the delegates, and that, in the near term, it is ex post facto being called a state-level misinterpretation.

This really is neither here nor there in the grand scheme of things (of the Republican nomination, for instance). FHQ is not here to piece together some wild conspiracy theory or cover up story. Rather, this Colorado example is indicative of a broader question that has popped up periodically, but persistently throughout 2015.

Not a Uniquely Colorado Issue
Colorado Republicans are not alone. The addition of a Republican binding requirement for the 2016 cycle has been a problem almost since it was added in 2012 at Tampa and amended in April 2013. The binding requirement itself has been problematic because some Republicans both rank-and-file and within state parties have balked at being forced to bind delegates to candidates based on primary or caucus votes. The position of the RNC has traditionally been to leave that discretion up to the states. Asking the states to give up that latitude, then, is by its nature a problem to some. Giving up power in politics is never easy.

But that is only part of the picture in Colorado and elsewhere. The binding requirement is described in Rule 16(a)(1), but it is that rule in combination with Rule 16(a)(2) that has served as a real chokepoint in the state-level decision-making in response to the national party rules change as well as the interpretation of how it will be implemented. 16(a)(1) lays out the binding requirement, but 16(a)(2) describes how that will translate to an actual delegate count at the convention.

Let's look at the language of the latter component -- Rule 16(a)(2) -- before proceeding:

The Secretary of the Convention shall faithfully announce and record each delegate’s vote in accordance with the delegate’s obligation under these rules, state law or state party rule. If any delegate bound by these rules, state party rule or state law to vote for a presidential candidate at the national convention demonstrates support under Rule 40 for any person other than the candidate to whom he or she is bound, such support shall not be recognized. Except as provided for by state law or state party rule, no presidential candidate shall have the power to remove a delegate.

The intent behind the addition of this rule and its amended version was to tamp down on some of the perceived mischief at the Tampa convention during the roll call vote. The quickest, easiest way to do that is to set up some form of binding mechanism with some modicum of enforcement. Rule 16(a) seems to accomplish both.

Still, questions linger. The main one is just how strict the RNC is going to be in its own interpretation of these rules at the convention. There, we have a few clues, but also quite a bit of ambiguity. Will, for instance, the RNC strictly adhere to that passage in the rules and count up the delegates as a direct reflection of the primary and caucus results? If so, that makes the doomsday, Rule 40 fueled convention scenarios Dave Catanese and Reid Wilson recently described.² Instead, though, will the RNC take a more relaxed approach to following that binding mechanism at the convention? That relaxed approach might look as it traditionally has. In other words, as candidates withdraw from the race, they release any acquired delegates, thus making them unbound free agents at the convention. Those free agent delegates would be difficult to fit into the Rule 16(a)(2) strictures. The delegate in that scenario has no "obligation".

The thing is, there is no real guidance in the rules about the release of delegates as traditionally practiced or otherwise. Absent that, there is confusion once a new rule like the binding requirement is introduced. How do states react? How do they respond with rules changes to delegate selection rules at the state level?

Again, there are some clues as to the position of the RNC on this. Colorado Republican National Committeeman Kopp mentioned this in his comments to John Frank at the Denver Post that part of the misinterpretation within the Colorado GOP was that, "You can unbind your delegates if the candidate is no longer in the race."

That may be true, but that is not a message that is clearly conveyed in the national party rules or universally known by state parties in the wake of the binding rule's addition for 2016. That has led to some guessing and second guessing at the state level and among those following along with the process in terms of interpreting the rules and crafting compliant rules for state level processes. It is that kind of ambiguity that introduces potentially significant variation in how states respond.

Now, throw on top of that the October 1 RNC deadline to complete delegate selection rules and the uncertainty of the moment and one ends up with a messy context in which to craft rules.³ That late deadline means that state parties are finalizing their rules when attention to the campaign is ramping up. And during this 2016 cycle that translates to an extra dose of uncertainty -- whether just perceived or real -- given how large the field is, how wide open the nomination appears.

If you are at the state level attempting to craft rules in a time of uncertainty for an uncertain future, how do you gameplan? It is not easy and states certainly do not want to box themselves in on any of the nomination proceedings (delegate count, voice at the convention, etc.) through rules they themselves have made.

From an institutional standpoint, there really is some value in having rules in place early. The Democratic National Committee, by contrast, requires the submission of delegate selection plans for review in May the year before a presidential election year. Those states are then locked into their plans after approval in the summer (unless matters outside of the state party's control change. i.e.: a state legislature changing the date of a primary election). There are drawbacks to that too -- limitations on what can actually be changed late -- but there is something to having in place and sticking with a set a rules.

It creates some certainty in a process where that can often be lacking.

Come 2016, all of this may not matter in the slightest. However, it is something to bear in mind as the remaining state parties are finalizing the rules that will govern their delegate selection processes over the next month (before that October 1 deadline). Their collective perceptions of where this race is going or might go, in Colorado and elsewhere, will have an impact on the resulting rules.


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¹ Of note is that Wadhams oversaw the addition of the preference vote to the delegate selection process as chair during the lead up to the 2008 presidential nomination process. It is noteworthy both because Wadhams seemingly has a dog in this fight, but also because the caucuses to that point in time did not include a preference vote. To be quite clear here, Colorado returned to the caucus format for 2004 after three consecutive cycles of having a state-funded presidential primary election. Of course, preference only counts when there is a competitive nomination race. Before 1992 -- when the primary system began -- there were only three instances in which there was true competition for the Republican nomination: 1976, 1980 and 1988. In the post-reform era, then, Colorado Republicans have held some form of a caucus/convention system without a preference vote four times (out of 11 total post-reform cycles, seven competitive Republican nomination cycles).

² The short version of this that has gained some steam in some Republican circles is that because Rule 40 requires a candidate to have a majority of delegates from at least eight states to have his or her name placed in nomination, a large field of candidates and few truly winner-take-all contests makes a messy convention an almost certainty. That is one interpretation. FHQ has held off on commenting about this, but will get to it at some point. In the context of an already long post is not that point.

³ Some states have already completed this rules-making process (see Nevada), but quite a few others, including Colorado, have not.

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