Primary Movement, 2015 v. 2011

2015 is not 2011.

Aside from a steady stream of light chatter throughout the late summer and fall about the proposed SEC primary, there just has not been much talk or, for that matter, action on the presidential primary movement front. Granted, while most state legislatures have convened for 2015 sessions, many have not settled in for the business-as-usual legislative work. Still, at this point four years ago, there was slightly more activity on the state-level to tweak the calendar positions of a number of presidential primaries. In mid-January 2011, there were bills that had been introduced to shift the dates on which presidential primaries would be held in 2012 in California, New Jersey, Texas and Virginia and other primary-date-related legislation in Washington.

From a numbers standpoint, things are not altogether different in 2015. The stream is more a trickle with only Arizona and Oklahoma proposing primary moves thus far.¹ One reaction is that it is simply too early to tell any significant difference between the two cycles. Yes, we are talking about a 50% decrease from 2011 to 2015, but substantively that represents only a subtle drop from four to two bills across cycles. That may not be enough to warrant even a meh.

It is early, but there is reason to think that there will be far less primary movement in 2015 than there was in 2011. The bills aren't there, but neither is the chatter. There is no talk of what Florida might do. The Sunshine state pulled back from the 2016 precipice in 2013. The constant "will they or won't they" drumbeat about Florida in 2011 reverberated, affecting decision-making in other states (notably the carve-out states, but others as well).

The most striking difference between 2011 and 2015, though, is based on the rules. Both the DNC and RNC informally agreed to a calendar structure that had the four carve-out states with February contests and all other states following in March or later. That intention has carried over to the 2016 cycle as well. The baseline, starting point calendar was different in 2011 than it is in 2015. FHQ touched on this last week (see map), but it bears repeating if not some accentuation. In January 2011, there were 18 primary states with laws in place calling for February primaries. That is, there were 18 states that were non-compliant with the delegate selection rules of both national parties. Those states had to change to avoid sanctions.

That is missing in 2015.

There is far less urgency on the state level to comply with the national parties' rules. Only Michigan, New York and North Carolina are in direct violation of those rules. Even then, Michigan and New York are likely to move into compliance.² Other states could be early and non-compliant, but have options built into state laws that provide them with some flexibility (see Colorado, Minnesota and Utah).

The transition from 2012 to 2016 -- from a primary movement perspective -- is a lot like the one from 2004 to 2008, but in reverse. Republicans had allowed some February contests beyond the carve-outs in 1996 and 2000, but that was limited because the DNC still set the first Tuesday in March as the earliest date on which states other than Iowa and New Hampshire could conduct delegate selection events. For the 2004 cycle, the DNC changed course, allowing February contests by pushing that "earliest date" from the first Tuesday in March to the first Tuesday in February. The state-level reaction was not a tidal wave of movement forward for 2004. Some states moved up to that earliest compliant position -- Arizona, North Dakota and Oklahoma among them -- but the significant movement did not occur until the 2008 cycle when both parties had the prospect of active and competitive nomination races.

The change in rules in both national parties for 2012 was intended to eliminate the February issue. But as was the case from 2000-2008, reversing course can and usually does take multiple cycles. That is how it is in this iterative and sequential process. The national parties devise delegate selection rules often to fight the last war and the states react. Most react in accordance with those rules changes, but some do not. Those laggards are the ones the national parties target with rules changes in the next round; the next cycle.

That 2016 is about cleaning up the stragglers from the national parties' perspectives instead of affecting some wholesale change in state behavior is why 2015 is not 2011.

...and we probably won't get a repeat of this.

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¹ Oregon and South Carolina both have primary-related bills, but neither piece of legislation directly affects the date on which the presidential primaries will be conducted.

² Michigan Republicans have endorsed a later date and New York shifted back from February to April for 2012 (but placed a sunset provision on the change). The primary is back in February, but unlikely to stay there.


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In Missouri, A Bill to Bind Delegates Based on the Presidential Primary; Not the Caucus

Back at the end of March, Missouri state House member, Tom Flanigan (R-127th), introduced HB 2031. The intent of the legislation is to bind the delegates to the national conventions based on the results of the state-funded presidential primary.¹ Now, as one will recall, the Missouri presidential primary was only binding on the Democratic nomination race, but not on the Republican side. Since the Republican-controlled Missouri legislature could not agree on a date to which the presidential primary should be moved, the presidential primary remained in February; a date that was non-compliant with both national parties' delegate selection rules.²

The Missouri Democratic Party petitioned the DNC for and received a waiver to proceed with the February primary.³ Republicans in the Show Me state, however, had no recourse. With no waiver process in place on the Republican side and with the decision to remain in February resting [mostly] with Republicans in the state legislature, the Missouri Republican Party had a choice to make between sticking with the non-compliant February presidential primary -- which meant losing 50% of the delegation -- or shifting the the delegate selection and allocation to a caucus/convention system. The state party chose the latter, and that has not sat well at least some Missouri Republicans ever since.

Enter HB 2031. The language is simple (sections in bold are bill-based additions to code):

115.755. 1. A statewide presidential preference primary shall be held on the first Tuesday after the first Monday in February of each presidential election year.             

2. The results of the presidential preference primary conducted under this section shall bind each party delegate on a first vote at the national party convention, and shall take precedence over any result of any presidential preference caucus.

However, that may be all that is simple about this legislation (...and why it is probably likely not to pass). Obviously, if this legislation were to pass and be signed into law it would create a conflict between the state government and the state party over the nature of the delegate selection/allocation process. And before FHQ gets too far into this, it should be noted that there are plenty of examples of state laws that dictate the delegate selection process. Massachusetts, New Hampshire and North Carolina, for instance, not only prescribe a threshold past which candidates receive delegates but also that the overall allocation be proportional to the vote in the primary election. The Missouri legislation lacks that specificity. That is not a problem in and of itself, but it does -- to FHQ's eyes anyway -- indicate the kind of ad hoc nature of this bill.

What makes such laws workable in Massachusetts or New Hampshire or North Carolina is that the state parties are fine with the delegate selection/allocation guidelines laid forth therein. There is no conflict. But if there was, the state party could/would take the state to court. And time and time again, courts have sided with the parties (see Tashjian and/or California Democratic Party v. Jones). The nomination process, after all, is a party function and the courts have established and reasserted the precedent that gives parties first amendment rights of free association that affects not only participation but other rules of nomination as well. While the three states above, then, have no internal conflict -- between state government laws and party guidelines -- Missouri would have such a conflict in the event that this legislation became law.

The Missouri Republican Party has been pretty clear about wanting to avoid sanctions from the RNC. That was the point of the -- from their vantage point -- temporary switch to a caucus/convention system for delegate allocation in 2012. The Republican-controlled legislature, on the other hand, could not decide what to do with the primary once the original to-March bill was vetoed. Neither Republican caucus -- in the House or Senate -- could come to terms on moving the primary back, keeping it where it was or as a last resort, canceling it for 2012 altogether. And if FHQ had to bet on the outcome of this new bill to bind the delegates based on the February 7 primary, I would wager on it getting bogged down somewhere along the line in the legislature.

Time is short anyway. Missouri Republican Party district-level conventions are this weekend and the state convention is June 2. On top of that, the bill was just referred to committee on April 18 and the legislative session is due to expire on May 18.

To quote George Costanza: "Prognosis Negative."

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¹ The bill also corrects a contradiction in the election codes that refers to the presidential primary on the first Tuesday after the first Monday in March. That section was not altered in the 2002 legislation that moved the presidential primary from March to the first Tuesday after the first Monday in February for the 2004 cycle.

² The legislature did pass legislation to move the primary back to March, but that legislation was vetoed by Governor Jay Nixon (D) because it contained a provision that would have stripped the governor of some of his/her appointment power (in the event of a vacancy to statewide office).

³ The argument for the waiver was that the primary being scheduled in February was a matter that was out of the hands of Missouri Democrats -- both the party and the Democratic members of the legislature. The national party's decision was made that much easier by the fact that the Democratic nomination race was not competitive. In other words, the fallout from such a decision did not clearly benefit one candidate over another. For a situation where competition mattered in such decision-making, see the Florida example from 2008.


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On the Binding of Missouri Republican Delegates

Over the weekend, FHQ had a few thoughts on the apparent binding of county-level delegates to the Republican congressional district and state conventions in Missouri. But that elicited one very interesting question from an anonymous reader/commenter:

"Does the RNC rule [15.b.1] prevent the State Convention to bind National Convention delegates to the results of the February primary?"

FHQ will put on its RNC thinking cap for this one. The easy answer is, well yeah, any attempt by Missouri Republicans to bind delegates to the national convention based on the results of the non-binding February 7 primary would open the Show Me state delegation to penalties from the RNC. But the key to this is that there is a discrepancy between that answer -- a rules-based answer -- and the question above.

The RNC rule only refers to the binding of national convention delegates; not state (or congressional district) delegates. There is nothing in the rules -- whether RNC rules or Missouri Republican Party rules -- about the binding of state or congressional district delegates based on the results of the February primary.  Now, of course, this would mean -- if every delegate to the state or congressional district convention was bound according to the results of the primary -- that the Missouri delegates to the national convention would be bound based on what would be a non-compliant contest.

...but only indirectly.

The entire Missouri delegation to the national convention in Tampa -- all 52 delegates -- is bound, but bound based on the decisions made at the state convention or the congressional district conventions; not the February primary. Now sure, logically, if the state and/or congressional district delegates are bound at the county-level caucuses based on the results of the primary, then any decision those bound delegates make during subsequent steps of the caucus/convention process is also bound based on the results of a non-compliant (too early) primary.

...but, again, only indirectly.

FHQ gets it. That is a bit of a cop out. But honestly, I think that is how this particular situation would be interpreted by the RNC. The catch here is that it isn't likely to be all that problematic anyway. Notice that I added that italicized "every" to the sentence about bound state/congressional district Missouri delegates above. From the look of it, the Santorum folks telegraphed their binding strategy during the Thursday night caucus in Brunswick County. Campaigns', and more importantly campaigns' strategic, decisions are not made in a vacuum. And that fact appears to have been highlighted by the reality that during the Saturday round of caucuses across Missouri (the day with the largest number of county-level meetings), Romney and Paul supporters prevented or attempted to prevent the passage of similar binding rules that would benefit the Santorum campaign.

What we are left with, then, is the potential for some delegates from the Missouri delegation to be indirectly bound according to the results of the non-binding -- and what would be a non-compliant -- primary. The RNC rules don't really address that, and unless a challenge to a handful of delegates is all that consequential within the context of this race, it probably isn't going to matter all that much.

But as always, there is a chance. It isn't impossible; just very, very improbable.


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In Lieu of Non-Compliant Primary, Arizona Dems Opt for Late March Caucuses

From the "questions FHQ had but had yet to follow up on" department:

The Arizona Democratic Party, according to the Arizona Republic, has decided abandon what would have been a non-compliant presidential primary on February 28 and instead start the delegate selection process with the already-scheduled district caucuses on March 31 (see page 7 of the proposed delegate selection plan from March 2011 for more on the district caucuses¹).

The apparent reason for the change -- the stated reason anyway -- was to save Arizona taxpayers some money. But the Arizona secretary of state's office is absolutely right in the article from the Arizona Republic. Unless all Arizona parties opted out of the primary, the savings are negligible if not nonexistent. What's strange is that the ADP could very easily have filed a waiver with the national party to be exempted from penalties associated with a non-compliant primary. While no Democrats made any effort in the state legislature during the spring session to introduce any bill shifting the date on which the presidential primary was held -- something that is a requirement to have a waiver granted (see Minnesota) -- the matter was out of their hands anyway. As was witnessed in the late summer when Governor Jan Brewer (R) was  threatening to move the primary up to January, the power rested with her and very much out of the hands of any Democrat with any power in the state government. She did not need to use her proclamation power to set a primary on the fourth Tuesday in February because that is the date called for in state law. However, Governor Brewer did use that power and thus demonstrated how little influence the ADP had in the process. State Democratic Parties with no recourse like that (see Florida 2008) are or can be granted some leeway by the party in terms of the penalties associated with a non-compliant contest.

I know what you're thinking. Why does any of this matter anyway? It doesn't. Ultimately, it is up to the state party to decide how it wants to allocate its delegates, and the Arizona Democratic Party, with no real competition in the contest anyway, mind you, has taken the caucus route.

Note: Take note of the fact that the territories have now been added to the map. An updated 2012 presidential primary calendar can be found here.

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¹ There is no updated, finalized and DNC-approved plan posted on the Arizona Democratic Party web page. FHQ has a call into the ADP and will update this information when they get back to me.

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