New Texas Law Further Clarifies State-Level Guidance Over Presidential Delegate Selection

Late last week, Governor Rick Perry (R-TX) signed into law Senate Bill 1398. Substantively, the legislation does not fundamentally change the presidential delegate selection process across parties in the Lone Star state, but it does provide some state governmental guidance as to how the allocation process should be conducted.

At its core, the bill was intended to provide both state parties some cover -- by codifying their methods -- relative to the existing or expected national party rules governing delegate selection in 2016 and beyond. Here's the before and after:

Before:
Sec. 191.007.  ALLOCATION OF DELEGATES.  Each political party holding a presidential primary election shall adopt a rule for allocating delegates based on the results of the presidential primary election.

After (underlined portions indicate additions, strikethroughs mean subtractions):
Sec. 191.007.  ALLOCATION OF DELEGATES.
(a)  Each political party holding a presidential primary election shall adopt a rule for allocating delegates [based on the results of the presidential primary election].

(b)A rule adopted under this section may utilize either a proportional or winner-take-all method, based on the results of the presidential primary election, which may be based on:

(1) a direct tie to statewide popular vote totals;
(2) a direct tie to congressional or state senatorial district popular vote totals; or
(3) an alternative disproportionate method that is based on statewide, congressional district, or state senatorial district popular vote totals. 

(c) Subsection (b) does not apply to delegates allocated: (1) among party and elected officials; or (2) through an allocation based on participants registering for or attending a caucus or similar process, provided that at [At] least 75 percent of the total number of delegates who are to represent this state at the party's national presidential nominating convention, excluding delegates allocated among party and elected officials, shall be allocated in accordance with the rule adopted under this section based on the results of the presidential primary election [among one or more of the candidates whose names appear on the presidential primary election ballot and, if applicable, the uncommitted status].

In a nutshell, the new Texas statute basically allows the state parties to continue what they have been doing.

For Republicans that means some leeway on the proportionality question (should that requirement be reinstated). It would not, then, have to be an either/or proposition; either true winner-take-all or true proportional allocations. Given the current primary date called for in state law -- the first Tuesday in March -- Texas Republicans could/would have some options in terms of having a truly proportional allocation or opting into the less proportional methods allowed under the RNC definition of proportionality. [In reality, the Republican Party in Texas always had that option under the former state law.]

On the Democratic side of the equation, things are mostly the same, save one notable exception. Yes, the new law provides the state party the latitude to filter the delegate selection process through state senate district conventions/caucuses as opposed to congressional district versions of those meetings as has been the case. There is even an exception for the primary-caucus (the Texas two-step  it was called in 2008) that got so much attention during the Clinton-Obama race. What is different, though, is that there is now a required percentage of delegates that have to be allocated through the presidential primary. That will not necessarily jibe well with the Democratic delegate apportionment to Texas. The way things broke down in 2008 was that the at-large, statewide delegates were allocated based on the primary results and the congressional district delegates -- reapportioned across state senate districts -- were allocated through the caucus/convention mechanism. Roughly 65% of the delegates, then, were allocated based on the results of the primary with the remainder going the caucus route. That balance -- at-large to congressional district delegates -- will not necessarily comply with the changes to this law. That will potentially complicate the crafting of the Texas Democratic delegate selection plan in 2016.

...or it could lead to a lawsuit, that precedent (via Tashjian) seems to indicate would side with the state party over the state government law.

--
As subsection C indicates, both parties' party/superdelegates/automatic delegates are not subject to the allocation guidelines set forth in the new law.

Again, the substantive changes are relatively minute here, but there are some interesting possible implications when it comes time to implement and enforce this new law.

[Hat tip to Tony Roza at The Green Papers for bringing this legislation to my attention way back in March when it was introduced.]

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Speak of the Devil: The Texas Two-Step in Court

...and this is something that the Democratic Change Commission will want to consider if the primary/caucus system in Texas comes up in the discussion at its meeting tomorrow in St. Louis. It is even more interesting because this is bound to come up in the session.

Earlier this week, the US District Court covering West Texas denied the Texas Democratic Party's request for a summary ruling in a case involving the pre-2008 changes to its method of delegate selection. [Here is the full ruling.] The case revolves around a challenge to the Texas Two-Step (primary-caucus combination) on the grounds that it violates the preclearance provisions laid forth in Section 5 of the Voting Rights Act. Honestly this is a very clever way of challenging the system. What is Section 5, you ask? According to DOJ:

"Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable."

Most of the jurisdictions covered are in the states of the former Confederacy and as the map below (also from DOJ) indicates, Texas is on the list. The catch is that Section 5 typically applies to election procedures for general elections and primaries for state and local offices, not to presidential nomination races. It is a logical extension though.

[Click to Enlarge]

As I mentioned the other day, delegate selection plans are submitted by each state to the (national) Democratic Party for approval, but these have not been the subject of a Section 5 preclearance review in the past. Though, it may be a logical extension of the law, it has, to this point at least, been assumed that the national parties held the right to make the determination of what was admissible in terms of presidential delegate selection on a state by state basis.

And the Democratic Party has been approving the Texas Two-Step for years. This isn't a new conflict. In 1988, for instance, Michael Dukakis won the Texas primary and Jesse Jackson won the caucus (There's more about that here.), only there wasn't nearly as much resulting tension as there was between the two main candidates in 2008. Also lacking in 1988 was the fact that less inclusive segment of the plan (the caucus) overturned the results from the more inclusive other segment (the primary). But the thing about the American legal system is that it is not proactive. The legality of something has to be challenged for it to even make its way into the judicial system to be questioned.

However, it isn't really the Texas Two-Step that is being questioned here, but the delegate equation behind it. Specifically, that past voting for the Democratic Party candidate in a statewide campaign in jurisdictions would determine the strength of that jurisdiction in terms of delegates. That's nothing new. In fact, past voting history and population are used by the national party to determine how many delegates each state gets. And the states, in turn use a similar formula to allocate them on their level.

However, the plaintiffs in the Texas case are arguing that the support of 2006 Texas Democratic gubernatorial candidate, Chris Bell, had the effect of undervaluing Latino voters in state Senatorial districts (the jurisdictions in question. Texas used Senatorial districts whereas most of states divvy up delegates across US House districts.). The problem was that the Texas Democratic Party's formula used raw vote totals instead of the percentage of the vote in Senatorial districts. In essence, even though majority white districts provided Bell with more total votes than some majority Latino districts, they were allocated more delegates despite the fact that the percentage of support for Bell in Latinos districts was higher. When population of the district was accounted for, then, those districts were diminished in value.

So while I'm tempted to use the court's words* against it (This is a minute detail.), it is a fairly consequential statistical blunder in my view whether it was intentional or not. The type of snafu that will get you taken to court.

This is very interesting stuff and something that the Democrats at the Change Commission meeting tomorrow would be well-advised to consider if the Texas Two-Step comes up (or even if it doesn't).

*"Our decision does not mean that political parties must preclear every minute change in their operating procedures. Instead, we closely follow Morse in concluding that political parties must seek preclearance for a change that affects voting that the party promulgates under the explicit or implicit authority of a covered jurisdiction and that presents no significant First Amendment concerns. We therefore hold that Morse controls, that the TDP has provided no specific explanation as to how a requirement that it preclear its delegate allocation formula impacts its associational freedoms, and that this case is justiciable. Accordingly, we DENY the TDP's motion for summary judgment." [from the ruling linked above]

A tip of the cap to Ballot Access News for the link.


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Are Clinton and Obama Still Fighting? The Texas Primary-Caucus is Back

Are big changes coming to the Democratic presidential nomination structure in the state that defines big?

Well, it depends on who you ask. On the one hand:

"There won't be anything dramatic," Sen. Royce West, D-Dallas (head of the Texas Democratic Party's committee looking into the issue), predicted.

On the other:

"I'm a taxpayer; I am paying for that primary," (committee member and Clinton-supporter, Linda) Burgess said. "I don't care if it's the Republican Party, Democratic Party or Polka-Dotted Party. I don't want any party to change the outcome of any election I'm paying for."

The argument here is over the controversial Texas Democratic primary-caucus system, or at least the caucus end of the structure. Advocates (and they seem to be Obama supporters) contend that the party building exercise that is the caucus is a worthwhile endeavor, but those with a negative view of the system (and they appear to be Clinton supporters) point toward the (un)representativeness of the caucus and the disproportionate impact in the delegate allocation.

Now, as I pointed out after last November's elections, the Texas Democratic Party was holding public hearings on the issue and the committee dealing with those is due to issue a report to the party's Executive Committee this summer. At that point a change may be made.

If I'm guessing, though, I'm going to have to side with Sen. West on this one. I just don't expect any fundamental changes. The longer caucus proponents -- and according to the Austin American-Statesman article there are plenty within the state party's power structure -- drag this thing out, the less salient an issue it becomes. Does anyone remember the tumult after Jesse Jackson beat 1988 Texas primary winner, Michael Dukakis, in the caucuses? The answer is no. Sure, that's because Jackson's win in the caucuses didn't overturn Dukakis' primary victory, but that actually strengthens the caucus proponents' argument here. That means that a close, almost tied nomination race is a requirement for this discrepancy to even be consequential. And we just don't see that happen that often.

The Texas Democratic Party is listening, but I don't think they'll do anything about the caucus. Let's be honest: Despite the talk about grassroots party building, the caucus was put in place -- much like the superdelegates at the national level -- to give the party a larger say in who got how many of the state's delegates. In the event, then, that there is a division between who the party wants as nominee and who the rank and file primary voters want, the party has a bit of an insurance policy. The party won't always win out, but if it is close enough the party will get its way.

All this draws on and expands upon a study I've cited in this space before. Scott Meinke, Jeffrey Staton and Steven Wuhs (gated) examined the effect the ideological convergence between state parties and potential primary/caucus voters has on how open a state's delegate selection event is. The idea, then is that the less those two groups converge ideologically, the less open the process will be (read: caucuses) and the more ideological overlap there is between citizens and state parties, the more open the process will be. Now, they were talking ideological convergence and what I'm discussing here is more candidate preference convergence. Yeah, those are pretty much the same thing, but in the case of Obama-Clinton, the underlying issue wasn't necessarily ideologically-based. That was a candidate-based division -- two candidates very similar ideologically.

So, will Texas Democrats make a change? I don't think so. If the party wants a caucus, the party will have a caucus. And it won't be a big deal in 2012 because Obama is likely going to be the only candidate on the ballot. In (uh, 1988, 2008), oh say, 2028 it might be a problem, but this Obama-Clinton thing will be ancient history by then.


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