On the Federal Lawsuit to Unbind Virginia Delegates

A new front has opened in the late-stage, intra-party battle over the Republican Party nominating Donald Trump in Cleveland. Those against the New York tycoon's nomination now have a multi-pronged approach that stretches beyond pushing for changes through the Convention Committee on Rules to now include legal action. A lawsuit has been filed in federal court by a Virginia delegate, Beau Correll, seeking relief from prosecution under Virginia code should he not vote for Trump at the convention.

There are advantages to allowing a convention of delegates to set the rules that will guide them as the Rules of the Republican Party allow. It grants the group the ability to tailor rules to suit a given convention at a given time and place. However, there are drawbacks to this approach as well. This lawsuit is one of them. The complaint the plaintiff brings in this case is expansive, but it boils down to a problem with the uncertainty of the rules that will govern the 2016 convention. If it was certain at this time -- that is, if the Republican Party had a locked-in set of rules -- that Rule 16(a)(2) was going to be in effect in Cleveland, then this case would be moot. There would literally be no potential for injury. In this instance injury is prosecution in Virginia for not following the candidate binding at the national convention as laid out in state law.

Even if the delegate voted contrary to how they were bound and even if the delegation chair from their state called out that "improper" vote in the tally, the secretary of the convention is charged under the current Rule 16(a)(2) with not recognizing that vote and announcing and recording it as bound. One could counter that that delegate vote was cast and contrary to the binding. In the sequence, that offending act according to Virginia state law precedes the secretary of the convention not recognizing it. The problem there is that there is no one at the convention from the Virginia State Board of Elections to say, "Beau Correll didn't vote according to how he was bound."

Furthermore, procedurally, the delegation chair does not call out individual votes. He or she announces the tally from the state. The bind breaker would not be known, then, unless there was a public poll (not a secret ballot) of the delegation by the chair of the delegation (and either the chair or another delegate comes forward with the revelation that someone has broken their bind). However, there is no procedure for this sort of voting in Republican Party of Virginia rules. Under those state party rules, there is no need for such a vote or poll of the delegation. Those results are already locked in based on the results of the March 1 presidential primary in the state.

All that is laid out in the Declaration and Statement of Qualifications that all delegate candidates in Virginia had to submit to run for delegate vacancies in the first place. Here is the important third and final paragraph from that form:

I further acknowledge, understand, and agree that if elected and if given the ability to vote at the Republican National Convention, my vote on the first ballot will be bound by the results of the March 1, 2016 Virginia Presidential Primary, in accordance with the Allocation Resolution adopted by the RPV State Central Committee on September 19, 2015. I further acknowledge that all costs associated with my candidacy and potential service as a National Delegate Alternate are my own responsibility. [Emphasis is FHQ's]

Now, the language here does leave open the notion that Virginia delegates will vote at the convention. Yet, that vote on the presidential nomination is bound based on the results of the primary under state party resolution and not state law. That is an important distinction because this lawsuit is being brought against the penalties in state law and not state party rules. State party actions bind the Virginia delegates.

What is missing is clear guidance from the party as to how the delegation chair is to behave at the convention. If the chair takes the vote in the primary as guide, then there is no need for a poll of the delegates. By extension that means that there is no potential for rogue action on the part of a delegate, no discovery of it and thus no violation of the state law. But if a vote is held -- and it would have to be public and/or someone from the Virginia State Board of Elections (or some representative from the state) would have to be there at the time of the vote -- then the potential exists for a violation of state law.

The Republican Party of Virginia has most of its bases covered on this one; that it is the governing authority over the process in Virginia and not state law. But it is not air-tight. The if associated with the actions of the delegation chair cited above is part of that. However, there is also the matter of state law versus state party rule/bylaw/resolution. The Rules of the Republican Party -- Rule 16(b) -- gives precedence to state party actions over state law. Yet, since the rules are not set in stone, and will not be until the convention in Cleveland, that cover is not officially there. Unlike Rule 16(a)(2), though, Rule 16(b) is not controversial and is likely to be carried over by the 2016 convention.

Though the complaint is long, this lawsuit essentially amounts to those two questions. The rest of it is just a series of distractions. State law simply is not the guiding force over delegate selection and allocation in Virginia, though there is the potential for prosecution on the grounds of violating the binding established in that law. Decided narrowly, a federal court could deem the state penalty unconstitutional. But the Republican Party of Virginia has measures in place to bind the delegates without that. That is an in-house, intra-party battle the courts have generally been unwilling to weigh in on, leaving it up to the party to settle. And the matter will be settled at the convention in Cleveland, starting with the Convention Committee on Rules.


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On Defining "Similar Contest" and Candidate Boycott Pledges

New Hampshire Secretary of State Bill Gardner yesterday reactivated the standoff between the Granite state and Nevada Republicans over the scheduling of their delegate selection events. And has once again set off a firestorm. The clearest signal that the statement yesterday sent was that Secretary Gardner has no intention of fighting with Iowa over the earliest January date available -- January 3. That shifted the battlefront back further out west to Nevada and the Republican Party caucus there.

Not surprisingly, Nevada Republicans were non-plussed about the development. The party has already set a date for its caucuses, January 14, and had opted to leave New Hampshire to their own devices. Passing on a fight with Iowa, New Hampshire again set its sights on the Nevada contest. The reaction was typical. Nevada Governor Brian Sandoval fell into the same trap that many do when attempting to dissect the New Hampshire law that guides the setting of the presidential primary date in the state: the part about the similar election. Here's the law again:

"Presidential Primary Election. The presidential primary election shall be held on the second Tuesday in March or on a date selected by the secretary of state which is 7 days or more immediately preceding the date on which any other state shall hold a similar election, or holds a caucus or in the interpretation of the secretary of state holds any contest at which delegates are chosen for the national conventions, whichever is earlier, of each year when a president of the United States is to be elected or the year previous. Said primary shall be held in connection with the regular March town meeting or election or, if held on any other day, at a special election called by the secretary of state for that purpose. Any caucus of a state first held before 1975 shall not be affected by this provision."

Governor Sandoval and now an apparently-nervous New Hampshire Republican Party chair -- Wayne MacDonald -- are telling Secretary Gardner to re-read the election law citing the "similar election" clause. Here's MacDonald:

“I would like him [Gardner] to reconsider whether Nevada is a similar election,” Wayne MacDonald told the Granite Status. “January 10 makes an awful lot of sense for our primary. It keeps us seven days after Iowa and puts us ahead of Nevada. I think it just fits in well and we're going to be the first primary, which is critically important.”

...

“A primary election is an election, a caucus is a caucus,” MacDonald said. “With all due respect to Bill Gardner, I really think there is a difference. 

“One is run by the party and one is run by the state,” he said. “There's a difference between a primary and a caucus.”

That is all well and good; that a caucus is not a primary, but that is not the distinction the admittedly ambiguous law is making. Stated differently, that is not the interpretation Secretary Gardner is using. His metric is not primary or caucus, it is attention or no/little attention. If a contest in conflict with New Hampshire is going to garner attention -- attention that could draw from New Hampshire's impact if held to soon after the primary in the Granite state -- then it is a similar contest. If a primary or caucus garners no or little attention, the contest is deemed not similar. There is a reason Gardner was not threatened by the caucuses on January 5 -- in between Iowa and New Hampshire -- in Wyoming in 2008. Sure, Mitt Romney and Fred Thompson visited, but not often and not often enough that the national press was willing to follow. Gardner's verdict? Not similar.

But Nevada's Republican caucuses are similar to New Hampshire. The Republican caucuses in the Silver state are an RNC-sanctioned contest. Candidates have already invested there -- perhaps not to the level of Iowa or New Hampshire or Florida, but they are invested to some degree. There is a debate there next week. The governor has already made an endorsement. Nevada matters in a way that Wyoming did not. It is or has been deemed a similar contest. Nevada too closely on the heels of the New Hampshire primary lessens the impact of the primary's results. New Hampshire would not resonate in the way that the seven day buffer in the law is intended to protect.

This is a dead issue, folks. He is the judge and jury on "similar election" and he has already ruled. Gardner ain't budgin'.

--
And here is why:

The candidates are either independently, or based on some other motivating factor, pledging not campaign in Nevada if the Republican Party there does not change the January 14 caucus date to allow New Hampshire to schedule a primary in 2012. First it was Jon Huntsman and now Rick Santorum, Michele Bachmann and Newt Gingrich have joined in. We have not seen a pledge drive like this since the 1996 cycle when all of the major Republican candidates but Steve Forbes either pledged or did not campaign in Delaware when the First state's primary was -- like Nevada -- the Saturday after New Hampshire (or in this case the Saturday after a date New Hampshire is eyeing).

As FHQ explained last week, back in the olden days -- you know, in the 1990s and before -- any time states would schedule primaries or caucuses that conflicted with New Hampshire law, there would inevitably be a pledge -- unofficial or otherwise -- on the part of the candidates to stay out of the offending state. The message: New Hampshire is a known quantity. Winning there matters, or has proven to matter. The Delawares and Nevadas of the world are trying to do what only New Hampshire can, but they can't. That is the New Hampshire perspective. I know. I know. People will argue with me until they are blue in the face that other states could do as good or better than New Hampshire at leading off the process. I'm not here to debate that. It is a reality. And the candidate behavior backs that up. Their actions -- and no it isn't yet every one of the candidates this time -- endorses the notion of New Hampshire holding a special place in the process.

Incidentally, this sort of behavior underlines the type and potential effectiveness of the penalty the DNC tried out in 2008 -- the one I alluded to in my piece over at Crystal Ball today.

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On Ignoring Laws to Schedule Primaries and Caucuses

Aaron Blake and Chris Cillizza attempt to bust the myth of the impact the rules/laws in Iowa and New Hampshire actually have on their ability to schedule their primaries or caucuses. Their bottom line is, hey, both Iowa and New Hampshire can and have in the past fudged the rules, so breaking the barrier into December is not likely as a result.

FHQ disagrees.

Past actions give the appearance that Iowa and New Hampshire can bend their own rules/laws, but that is not the case. Blake and Cillizza provide some seemingly good examples of past rules breaking, but it is a shallow dig and fails to capture the context of those cycles. Let's have a look and then I'll explain the true measure of the situation in Iowa and New Hampshire.

Blake and Cillizza write:

Second, the main reason people think things may begin in December is because New Hampshire state law requires its primary to be held seven days before any similar contest, and Iowa law requires its caucuses to be held eight days before the next contest. New Hampshire Secretary of State Bill Gardner has cited this law and said New Hampshire must be at least a week before Nevada.

Well, both of these laws have been ignored before, so who’s to say they won’t again?

In 2008, Iowa held its caucuses just five days before New Hampshire. And in 1996, 2000 and 2004, New Hampshire held its primary less than seven days before another state. Gardner, the longtime secretary of state who has sole control over setting the state’s primary date, was also in charge during those three elections.

(In 1996, even after the state strengthened its first-in-the-nation law in response to a power move by Delaware, Gardner ultimately concluded that Delaware’s primary didn’t constitute a similar election.)

In other words, laws are laws. But there’s often a way to skirt them, and they have often been skirted.

FHQ will take the New Hampshire examples first. In 2004, New Hampshire did have a contest follow less than a week after the primary in the Granite state. But it was the North Carolina Republican caucuses. Not only was that a contest that was held in a party that was re-nominating an incumbent -- George W. Bush -- but not all of the caucuses were held that day. The precinct level events could take place across the Tarheel state throughout the months of February and March. In 2000, a non-binding Delaware Democratic primary -- a beauty contest -- fell on the Saturday after the New Hampshire primary. Additionally, Hawaii Republican caucuses were held the Monday after New Hampshire -- within the seven day window specified in New Hampshire law.

The tie that binds all three of these contests -- and the reason why New Hampshire shrugged their shoulders at the scheduling of them -- is that each was largely inconsequential. The Republican nomination was not contested in 2004, Delaware was non-binding in 2000 and George W. Bush and the other candidates were not going to trek out to Hawaii in 2000 either. In other words, none of these contests was a threat to the attention the New Hampshire law is designed to protect.

Well, you left out one, FHQ. Yes, I did. Delaware in 1996 is another special case, but it differs from the rest. The 1996 Delaware primary -- as was the case four years later -- was scheduled on the Saturday after New Hampshire, wherever New Hampshire ended up on the calendar. [It was tethered to the Granite state in the way that Nevada's Republican caucus is to New Hampshire this year.] I could argue about this being the one exception to the rule and leave it at that, but the truth is, Delaware was not an exception to the rule. Why? Delaware was rendered largely meaningless in the 1996 Republican nomination race because New Hampshire Republicans had the candidates -- or offered to them the opportunity to -- sign a pledge that they would not campaign in Delaware or any other state that violated New Hampshire's law. Among the principles, Bob Dole and Pat Buchanan pledged to uphold the seven day buffer. Lamar Alexander did not, but stayed away from the First state. Steve Forbes did not. Forbes campaigned in and won Delaware. But the press was busy talking about Buchanan's narrow, surprise victory over frontrunner Dole in New Hampshire.

Again, the issue is attention. New Hampshire had assurances of or felt safe in the fact that they would garner the most attention in each of those years. That is why those contests were deemed not "similar". By its nature the term "similar contest" is ambiguous and gives the New Hampshire secretary of state some latitude in the scheduling of the primary.

Why, then, is Nevada considered a similar contest to New Hampshire? The Nevada Republican Party has changed its rules since the 2008 and the precinct caucuses are binding now when they were not in 2008. In addition to that, the Nevada contest is sanctioned by the parties. By being included in the pre-window period, Nevada is being given an attention-grabbing spot. Bill Gardner cannot, then, get the same assurances on Nevada as he and New Hampshire got in the past and because of the party-sanctioned position cannot ask the candidates to choose New Hampshire over Nevada.

Well, what about Iowa? Both Iowa Democrats and Iowa Republicans violated the state law calling for the parties' caucuses to be eight days prior to any other contests. The catch here is that the mechanism is different in Iowa than it is in New Hampshire. I don't want to get too far down in the weeds on this one, but basically the New Hampshire primary is a state-funded contest that the parties there opt into. [They would be foolish not to. Why not save the money?] The Iowa caucuses like any other caucus is not state-funded. The parties pick up the tab and by virtue are not really bound by that state law -- not in the way that parties in New Hampshire are anyway. The Iowa parties can schedule their caucuses for any date they choose and can and do furthermore lean up against that state law when it comes to defending the first-in-the-nation status, but it carries far less legal weight than the New Hampshire law. Now, the parties could opt out of the primary in New Hampshire if it broke with national party rules, but again, they are not going to do that because of the financial considerations. These nomination contests -- whether primary or caucus -- are party business. State law only affects that function insofar as the state parties agree or disagree with the state laws. If they agree with the laws everything is fine. If they disagree the parties typically win out -- at least according to the courts they do. Those disputes rarely come up over primary dates, though. In the event there is a conflict, state parties usually opt out and hold caucuses. [More often than not we see court challenges pitting parties against state law over who can participate in the contests -- opened versus closed primaries.]

FHQ agrees with Blake and Cillizza that we may not see December primaries and/or caucuses, but it won't be because New Hampshire or Iowa -- but mostly New Hampshire -- can fudge the rules. The ads expenses and more importantly, as FHQ has warned, the future implications for first-in-the-nation status are clearer explanations against the notion of December contests. Iowa obviously cares about that. Bill Gardner does not -- at least not to the same level. His main interest is in abiding by the law of the state of New Hampshire.

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Bill Gardner Discusses New Hampshire/Nevada on Face to Face

Jon Ralston tonight on Face to Face took a call from New Hampshire Secretary of State Bill Gardner to chat about the next looming conflict to determine the final 2012 presidential primary calendar.¹ At issue, as FHQ has discussed, is the discrepancy between the longstanding New Hampshire election law that requires seven days between the primary in the Granite state and the immediately subsequent primary or caucus and a newly-enacted Nevada Republican Party resolution tethering the party's caucuses to the Saturday following the New Hampshire primary. Many have tried the same thing and many have failed. As Secretary Gardner stated in the interview, several states in the 1990s attempted unsuccessfully to schedule their contests for the same date as New Hampshire. Wyoming Republicans in 2007 had a similar resolution to Nevada's on the books before rewriting it and moving the state's county meetings to January 5. Delaware scheduled a Saturday after New Hampshire primary in 2000 but it was non-binding on the Democratic delegate selection process in the First state.

The point is, Bill Gardner has seen a great number of states challenge New Hampshire's first in the nation status, but none has succeeded. The man is undefeated in keeping New Hampshire first since he -- the only secretary of state in New Hampshire during the time -- was given the authority to set the date in 1976 (based on the 1975 law cited in the segment below). If only for that reason alone, it might be worth taking Gardner at his word that New Hampshire will get what it wants: a seven day buffer between it and any subsequent contest.

But why?

Part of it, as I have mentioned, is that there is a collective desire on the part of the early, exempt states to avoid pushing this into December. To cross that barrier means to put the privileged positions the early states enjoy even further under microscope when the next round of delegate selection rules is crafted starting during the conventions next year, but in earnest during 2014. None wants to be the one to push the calendar into December, but I take Gardner at his word that he will do that if that is the only way to preserve New Hampshire's status. I would contend that it is a bluff, but we have never and probably will never know because when these sorts of conflicts arise, New Hampshire is not the one to blink.

Again, why?

New Hampshire is good at what it does. No, not necessarily in terms of picking nominees or presidents, but in quickly and flawlessly staging early presidential primaries. There is likely not another state that can more quickly get the infrastructure in place to hold a presidential primary. That ability coupled with the flexibility of the date decision resting in the hands of just one actor has made New Hampshire an unparalleled force at the front of the presidential nomination process throughout the post-reform era and stretching back further still.

New Hampshire can play chicken, then, like no other. They can wait and wait and wait, all the time knowing that they can put a primary together quicker than their competition and run it more smoothly. That places a great deal of pressure on other states. Not only is the clock running down on them to decide, but they too have to get a presidential nomination contest planned, prepped and ready to go.

And in this particular instance, Gardner and New Hampshire have a trump card. They know full well that every second is going to count for the Nevada Republican Party based on the party's mismanaged caucus convention system four years ago. South Carolina was on the same date and even with the candidates' attention on the Palmetto state, Nevada had problems in its trial run as an early state contest. Those problems persisted throughout the process. Ron Paul, who finished second at the precinct level, had enough delegates make it through to completely disrupt the 2008 state convention. It was cancelled and the state party's central committee chose the delegates to attend the convention in St. Paul. And as of a month and a half ago, the planning was still underway for 2012.

Not wanting to repeat that and not knowing when the caucuses will ultimately be held will weigh heavily on the Nevada Republican Party between now and their October 22 central committee meeting. And Bill Gardner will still be talking about going in December then. That would give Nevada Republicans less than two months to prepare for their caucuses if they are to go on the Saturday following New Hampshire. That won't be ideal for them.

...and Bill Gardner knows it.

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¹ Below is the Face to Face show from October 3. The segment in which Bill Gardner appears is right after the opening and some other news.

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The Florida Presidential Primary is Not Currently Scheduled for January 31

One question that FHQ gets periodically is about whether Florida is or is not scheduled -- according to state election law -- on the last Tuesday in January. As has been recounted in great detail in this space over the last several months, the state legislature ceded the authority to schedule the presidential primary date to the newly created Presidential Preference Primary Date Selection Committee (PPPDSC).

But the question remains: Is the PPPDSC making a decision to change the date from January 31 in the 2012 cycle or are they working from a blank slate (with the ability to set the date between the first Tuesday in January and the first Tuesday in March)?

Admittedly, FHQ has done a poor job of relating this to our readers as well as a broader audience, and I would like to set the record straight once and for all. The enrolled version of HB 1355 -- the bill that created the PPPDSC -- strikes the reference in the presidential primary law to the last Tuesday in January (see 103.101(1)(b) for the details). And the 2011 Florida Statutes reflect that change (see the same 103.101(1)(b) section).

In other words, the Florida primary is completely date-less at this point in the evolution of the 2012 presidential primary calendar and has been since May 19 when the bill was signed into law.  The PPPDSC will not be moving the primary back from that last Tuesday in January date. Instead, the members are charged with selecting a date in the window between January 3 and March 6 (for the 2012 cycle). Florida could still end up on January 31, but it will only be because it sees a threat to its desired fifth position from a state like Missouri -- should a move to March in the Show Me state prove impossible -- or Minnesota -- where Republican caucuses are currently scheduled for February 7.

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Ohio Arm of Obama Campaign Gets Involved in Battle Over New Election Law

Jim Provance at The (Toledo) Blade is reporting that the state director of the Obama administration's reelection effort in Ohio, Greg Schultz, is mobilizing supporters against the recently passed changes to the Buckeye state's election law. Ohio Democrats' initial efforts to put the issue of the elections changes on the ballot were rebuffed due to inaccuracies in the petition they submitted. Their do-over simplified the petition seeking to overturn not parts of the new law but instead the law in its entirety. That includes the portion of the legislation that shifted the Ohio primary from the first Tuesday after the first Monday in March to the first Tuesday after the first Monday in May.

This is all very interesting because their are competing strategic interests involved here.

1. The Obama administration -- or at least the president's reelection campaign -- is concerned that the new restrictions on early and absentee voting will disproportionately impact Obama voters in the general election. And in a swing state like Ohio in an election that looks to be -- from our view of things at the end of August 2011 -- close, every vote counts.

2. However, the Obama folks are playing with fire here to some extent as well. Many are talking about how the Republican nomination race could stretch into May or June (or to a brokered convention), but that is not a certainty at this point in time. If Romney or Perry can wrap up the nomination earlier than that May to June window -- say toward the end of April when a host of northeastern states will hold a regional primary -- an Ohio primary back in March puts the state into the window of decisiveness. That also potentially puts Ohio into a competitive campaign environment in which Perry and Romney energize and mobilize a great many Republican voters who are apt to stick with the party in the general election.

The Democratic nomination race from 2008 is a perfect example of this. The battle for the right to be the Democratic nominee impacted registration efforts in suddenly relevant states like North Carolina and Indiana -- two typically red states that Obama later carried in the general election by narrow margins. Now this could happen to Ohio in 2012 whether the primary is in March or May, but it is more likely within the window of decisiveness in March as opposed to May.

Now, the flip side of this is that a protracted or semi-protracted Republican nomination race will veer off into Carter-Kennedy territory as opposed to a repeat of the Obama-Clinton race. If Perry vs. Romney turns, to borrow a word from the Texas governor, ugly, that divisiveness could impact the party's chances in the general election. That angle is not getting much play in the political press at the moment, but it represents a very fine line in any evenly-matched or competitive nomination race: When does the balance tip from positive energy within the Republican electorate to discontent among two Republican camps? We are an eternity away from gathering an answer to that question, but it is worth throwing out there as this nomination race continues to develop.

The Obama campaign appears to be signaling that the potential problems in the general election from supporters lacking a certain ease of voting is a greater problem than the unknown of what the Republican nomination process may produce -- whether in terms of a candidate or a unified/divided Republican Party.

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Are Ohio Democrats Threatening the Buckeye State's New May Presidential Primary?

Alan Johnson at The Columbus Dispatch in updating Ohio Democrats' efforts to repeal parts of the recently-passed elections bill seems to also hint at the possibility of it tearing down the new May presidential primary as well. The crux of the matter:

[Ohio Attorney General Mike] DeWine rejected the initial language submitted by the group, finding that it contained inaccurate and misleading statements and cited wrong sections of law. As a result, Fair Elections Ohio had to restart the process. This time, the coalition opted to repeal the entire law instead of parts of it, as the opponents initially proposed.

The Fair Elections Ohio referendum proposal as well as DeWine's and Secretary of State John Husted's acceptance of the revised language appear to be (inadvertently???) potentially affecting the scheduling of the Buckeye state presidential primary. Granted, DeWine and Husted required a fairly high bar in terms of the petition signatures needed to get the item on the ballot for the November 2012 general election. The bar is high at 231,147 signatures and the window of time in which to gather them is relatively short at about six weeks (before September 29).

If Fair Elections Ohio gathers the required number of valid petition signatures in time, the new elections law would be suspended until Ohio voters can arbitrate the matter in November 2012. That suspension of the law would move the presidential primary back to the first Tuesday in March, and also put a great deal of pressure on local Ohio elections officials to be prepared in time for the primary after redistricting takes place later this summer and fall.

That's makes one more item to add to FHQ's primer on when the remaining states may decide on the timing of their primaries and caucuses.

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Thanks to Richard Winger at Ballot Access News for passing along the link to the Columbus Dispatch article.

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