Massachusetts Bill Would Shift Presidential Primary to June

Toward the end of January a pair or bills were introduced in the Massachusetts Assembly that would affect the timing of future primary elections if signed into law. The first -- H 574 -- would leave the presidential primary on the first Tuesday in March while moving the primaries for state and local offices back further away from (general) election day. The second bill -- H 575 -- would shift both the presidential primary and the primaries for state and local offices, consolidating the two on the first Tuesday after the first Monday in June.

Let's consider the motivation behind the two legislative items.

H 574 is intended as a remedy to what was a messy attempt by the Massachusetts General Court to bring the Bay state's election law into compliance with the MOVE act. As you may or may not recall from some of the 2011 discussions in this space, the federal mandates laid forth in the MOVE act were put in place as a means of insuring that military and overseas personnel had timely access to ballots. The federal legislation required a 45 day window before election day for ballots to have been delivered. That meant that a primary scheduled seven weeks prior to the general election -- as was (and still is) the case in Massachusetts -- was not compliant. In order to move into compliance with the federal requirements, the Massachusetts legislature added, as a one time fix for 2012, an amendment to an appropriations bill to schedule the state primary for a Thursday just 47 days prior to the November election.¹

This bill would codify a move to the ninth Tuesday before election day in November, an additional two weeks that is MOVE act compliant. That gives the Massachusetts secretary of state's office just four days following the primary to certify the results, print the general election ballots and send them off to military and other overseas personnel. Additionally, that date continues to conflict with the tail end of a long Labor Day weekend.

In other words, there are some potential problems attendant to this particular piece of legislation.

As an alternative, Representative James Dwyer (D-30th, Middlesex) has once again introduced legislation by request (via petition) to consolidate the two sets of primary elections in June. Again, H 575 would solve the MOVE act conflict by moving the state primary from September to June and the consolidation would additionally save money that would otherwise fund two separate elections, not one. The drawback is that the bill -- one almost exactly like the bill that Dwyer introduced in 2011² -- would potentially pull the Massachusetts presidential primary out of the window in which the nomination decisions are likely to be made. In any event, it would be something of gamble for Massachusetts legislators (and the governor) to move the contest that far back on the calendar.

But that is exactly what will be considered in the Joint Committee on Election Laws; the next stop for both of these bills. No hearings for either bill are on the committee agenda at this time.

NOTE: Please see the changes triggered by these bills to the 2016 presidential primary calendar here.

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¹ The Tuesday of that same week conflicted with both the Democratic National Convention and fell just a day after the Labor Day holiday.

² The only difference in the section of the bill referring to the presidential primary -- or rather the proposed consolidated primary -- is that the latest legislation calls for the primary to be held on the first Tuesday after the first Monday in June instead of the first Tuesday in June (as was the case in the 2011 bill).

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2016 Rules: Penalizing Candidates for Participating in Unsanctioned Debates?

This idea has been floating around since the RNC Chairman Reince Priebus mentioned it to reporters during the RNC Winter Meetings in Charlotte in January. But now the idea of penalizing presidential candidates delegates for participating in primary debates not sanctioned by the Republican National Committee is making the rounds again in an item by Ramesh Ponnuru over at the National Review.

In my discussions with folks involved in the rules-making process in the RNC this debates/delegate penalty never came up. That is not to suggest that it has not come up or will not be pushed in some form at future RNC meetings. There is some sincere frustration over the perceived impact those primary debates had on the process within the party, but this seems more like an idea that is being floated more than a directive for change from the chairman.

That is the FHQ interpretation of it anyway. Here's why:

This is a tough [TOUGH] penalty to enforce. Again, that is not to say that it cannot be enforced, but it is something that is difficult to achieve. Functionally, it works more as a threat than an actual penalty. The Democratic Party had something similar on the books in 2008 (and 2012). The rule did not apply to debates. Rather, it was a penalty put in place to dissuade candidates from campaigning in states that violated the rules on timing. In 2008, that meant that none of the candidates could campaign in Florida and Michigan until the day after the primary in the violating state. If the candidates had campaigned in either state they would have lost any and all pledged delegates won in that primary (Rule 20.C.1.b).

But no candidate violated that rule. And that was probably fortunate for the DNC and its Rules and Bylaws Committee. Imagine if that question had been layered into the Clinton-Obama delegate fight in the waning days of primary season in 2008. [That threat also worked (or mainly worked) because Iowa, New Hampshire, Nevada and South Carolina were in on it. Each collectively and effectively threatened the support for and to any candidates who campaigned in any states jumping the queue.]

Again, as in that 2008 case, it is easy to threaten to take away delegates from candidates, but tough to enforce without also potentially hurting the state parties, not to mention individual delegates, in the process. How does the national party identify which delegates get the axe? What is the percentage? How does the party account for the varying penalties that will occur based on different methods of delegate allocation? Furthermore, does would the RNC ultimately care? [The standing, yet unofficial, rule on the Republican side has always been to just leave it up to the states. But there has been an evolution to that since 2008. In other words, instead of "do what you want states" it is "these are the rules, do what you want/can states".]

Ultimately, this really is not a penalty on the candidates. Yes, the proposal targets them, but the reality is that this but the first step in how the RNC likely sees this playing out. As was the case with the Democrats in 2008, the likely intent is to in some way curb the incentives state parties and other groups have in scheduling these debates in the first place. If the state parties are rational, they will not want to hold/sponsor a debate if it means the party will potentially not have a full slate of candidates -- or at least the main competitors -- participate.

But what is the mechanism by which state parties or other groups acquire the RNC's blessing for holding a debate? Is there a mechanism at all or will early states (or perhaps competitive general election states) have the upper hand in planning and orchestrating such debates?

All we really have in Chairman Priebus' comments is the wisp of a plan. It is not fully fleshed out and as such is rife with unintended consequences.

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Footnote:
FHQ should also mention one of the other talking points circulating in response to this already: That this is a rules change that seemingly advantages the supposed establishment candidate; something those in the grassroots and/or among the Tea Party would not necessarily be favorable toward. That response is apt, but focuses too heavily on the candidate-specific penalties instead of the state angle proffered above. Functionally, I think candidate angle is correct. A frontrunning establishment candidate is motivated to participate in as small a number of debates as possible. This just provides some institutional national party-based cover for that candidate or candidates. That, in turn, affects the calculus of those planning these debates in the first place. But again, that is the goal of this particular rule should it ever come to fruition.

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Update: 2016 Presidential Primary Calendar (2/21/13)

Since there have been a handful of bills introduced in a few state legislatures that could have an impact on 2016 presidential primary dates, and owing to the fact that there was a need to revise some of footnotes from when FHQ put together the initial calendar in January 2012, an update to the calendar is in order.

[Find the calendar's permanent home here. There is a link to the 2016 calendar in the upper left corner of the page as well.]

Plus, there was at least some need to add a map.

Changes:

• There is now a map indicating the month in which state-level elections statutes are to be held (...if there is a date specified). FHQ should also note that if you click on the state name in the calendar below, the link will take you to the relevant section of the state's law or party's bylaws covering the date of the primary or caucus.
• Links to discussions of 2013 state-level legislation addressing the dates of future presidential primaries have also been added. 
• The number of footnotes substantially decreased from January 2012. That is largely attributable to the fact that at that point a number of states had yet to update their online statutes to reflect changes made during their respective 2011 sessions. 

Notes:

You will note that none of the so-called carve-out states are included on the calendar. During the 2012 cycle, FHQ added those states to calendar as a means of reflecting the reality of the typical formation of the calendar. Namely, that those states will position their contests relative to and earlier than the date of the next earliest contest. Missouri is the next earliest contest, non-compliant though that contest may be. If that holds, then Iowa, New Hampshire, Nevada and South Carolina (if not other states) will push once again into January. That is likely to look something like this:

• Saturday, January 2: Iowa caucuses
• Tuesday, January 5: New Hampshire primary
• Saturday, January 16: Nevada caucuses
• Saturday, January 23: South Carolina primary

There are a couple of other factors to note in the calculus that each of the above states will/could undergo.

1. State law requires a seven day window after the New Hampshire primary. That eliminates January 12 as a possibility if Nevada falls on January 16.
2. None of this prevents a scenario like the one that played out in late 2011 from happening again if the carve-out states are pushed up against the cusp of the new year. In other words, Iowa's parties could nab Monday, January 4 as the date of its caucuses and then force another stand-off between New Hampshire and Nevada. That could push Nevada to a later date and allow Secretary of State Bill Gardner the chance to claim January 12 for New Hampshire. The difference in 2016 is that the secretary will have to contend with both the Nevada Democratic and Republican parties; not just the Republicans. Of course, historically, Gardner remains undefeated in the game of keeping New Hampshire first. 
3. There is a long wait for any of this to occur. None of this will go down until October 2015 at the earliest. 

Reading the Map:

As was the case with the maps from past cycles, the earlier a contest is scheduled in 2012, the darker the color in which the state is shaded. Arizona, for instance, is a much deeper shade of blue in February than California is in June. There are, however, some differences between the earlier maps and the one that appears above.

1. Several caucus states have yet to select a date for the first step of their delegate selection processes in 2016. Until a decision is made by state parties in those states, they will appear in gray on the map.
2. The states where legislation to move the presidential primary is active are two-toned (or three-toned -- see Missouri). One color indicates the timing of the primary according to the current law whereas the second color is meant to highlight the month to which the primary could be moved. 
3. States that are bisected vertically are states where the state parties have different dates for their caucuses and/or primaries. The left hand section is shaded to reflect the state Democratic Party's scheduling while the right is for the state Republican Party's decision on the timing of its delegate selection event (see Nebraska). This holds true for states -- typically caucus states -- with a history of different dates across parties but which also have not yet chosen a contest date.

2016 Presidential Primary Calendar

February

Tuesday, February 2:

Colorado caucuses¹

Minnesota caucuses²

Missouri (2013 Legislation: March primary, April primary)

Utah³ (2013 Legislation: Primary funding)

Tuesday, February 23:

Arizona (2013 Legislation: Fix primary date to date of Iowa caucuses)

Michigan

March

Tuesday, March 1:

Colorado caucuses¹ 

Massachusetts

Oklahoma

Tennessee

Texas (2013 Legislation: February primary)

Vermont

Virginia

Tuesday, March 8:

Alabama

Hawaii Republican caucuses

Mississippi

Ohio

Tuesday, March 15:

Illinois

Saturday, March 19:

Louisiana

April

Tuesday, April 5:

Maryland

Washington, DC

Wisconsin⁴

Tuesday, April 26:

Connecticut

Delaware

Pennsylvania

Rhode Island

May

Tuesday, May 3:

Indiana

North Carolina

Tuesday, May 10:

Nebraska

West Virginia

Tuesday, May 17:

Kentucky

Oregon

Tuesday, May 24:

Arkansas

June

Tuesday, June 7:

California

Montana

New Jersey

New Mexico

South Dakota

Primary states with no specified date:

Florida

Georgia

Kansas⁵

New Hampshire

New York

South Carolina

Without dwelling on something that is WELL before its time, FHQ should note that those February states are only problematic in 2016 if the two parties' delegates selection rules mirror the rules from the 2012 cycle. They may or may not. The real problem children, if you will, are the primary states without specified dates for 2016. As of February 2013 they remain the free agents for the 2016 primary calendar and the ones that may bear the most intense watching between now and mid-2015. That said, first things first: The first step is a set of rules from the DNC and RNC. We have a ways to go before the parties settle on/finalize something on that front (summer 2014). The Republican Party is further along in its process than are the Democrats.

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¹ The state parties have the option of choosing either the first Tuesday in March date called for in the statute or moving up to the first Tuesday in February.

² The state parties must agree on a date on which to hold caucuses by March 1 in the year prior to a presidential election. If no agreement is reached, the caucuses are set for the first Tuesday in February.

³ The Western States Presidential Primary in Utah is scheduled for the first Tuesday in February, but the contest will only be held on that date if the state legislature decides to allocate funds for the primary.

⁴ See definition of "Spring primary" for clause dealing with the timing of the presidential primary.

⁵ Kansas has not held a presidential primary since 1992. Funds have not been appropriated by the legislature for the primary since that time. That said, there are laws in place providing for a presidential preference primary. Assuming funding, the Kansas secretary of state has the option of choosing a date -- on or before November 1 in the year preceding the presidential election -- that either coincides with at least 5 other states' delegate selection events or is on the first Tuesday in April or before.

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Election Law Amendments Would Clarify Funding of Utah Presidential Primary

A bill that has made its way through both houses of the Utah legislature would amend the Beehive state election laws with some interesting implications for the presidential primary there in 2016 and beyond. HB 53, introduced by Representative Kraig Powell (R-54th, Heber City), adds a rather simple clause to the segment of the Utah Elections Code concerning the Western States Presidential Primary:¹

20A-1-201.5. Primary election dates.
(3) [The] If the Legislature makes an appropriation for a Western States Presidential Primary election, the Western States Presidential Primary election shall be held throughout the state on the first Tuesday in February in the year in which a presidential election will be held.²

Now, ordinarily FHQ would leave this alone, but as I said this does have some impact on the potential 2016 Utah presidential primary. And it also happens that FHQ received some probably-deserved flak from the Utah press in 2011 for raising the specter of Utah crashing the 2012 presidential primary calendar. The conflict then was over the fact that while the statute called for what would have been a non-compliant February primary, the state legislature also had to appropriate money for the primary to be conducted. The legislature did not appropriate those funds for a 2012 primary during its consideration of that year's budget during the 2011 session.

But it appears that Utah legislators felt at least some need to clarify that funding mechanism in the elections law of the state. The February primary date is now clearly dependent upon the legislature appropriating funds for that purpose.

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That brings us back around to 2016. What is interesting is that given the current Utah Elections Code and given the current RNC and DNC rules for delegate selection in 2016, Utah may have a tough time holding a compliant primary.

Why?

The RNC rules do and the DNC rules likely will prohibit February primaries or caucuses in states other than the four carve-out states. That would likely affect the willingness of Utah legislators to fund a would-be, non-compliant primary. Such an action would reduce the state's Republican delegation to 12 delegates and likely decrease the Democratic delegation by half. The catch is that even Utah's fallback -- using the fourth Tuesday in June primary for state and local offices for the presidential primary as well -- would also be non-compliant. The DNC has since relatively early on in the post-reform era -- 1980 cycle -- required that all delegate selection events be completed by the second Tuesday in June. The RNC has until 2016 not had any similar mandate. That will be different in 2016 unless the RNC changes its rules. There will now be a back end to the window of time in which states can hold the first step of their Republican delegate selection processes: the second Saturday in June.

Utah's fourth Tuesday in June primary would not be compliant for the purposes of selecting delegates to the national convention.

Granted, all of this is premature to a great degree. It is still 2013 after all. But something will have to change at the state-level if Utah is to hold a presidential primary in 2016. Absent such a change(s), both state parties could lean on the caucus/convention system that typically begins with neighborhood meetings in March of presidential election years.

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¹ The moniker "Western States Presidential Primary" was borne out of an unofficial compact that several smaller western and/or mountain states informally agreed to pursue as early as the 2000 cycle. The effort was not unlike the attempt by the Democratic Party to incentivize regional or subregional primary or caucuses clusters in 2012. The idea was that collectively a group of western or mountain states could influence the nomination process more so than if each state struck out on its own. The initial efforts in the 2000 cycle were disrupted by California moving its primary up to the first Tuesday in March; a shift that affected where each of the eight potential participating states would end up on the primary calendar that year (Busch 2000, p. 69). You can read more about the attempts to coordinate the western primary ahead of the 2008 cycle here.

² The struck through portion of the legislation is the part being removed while the underlined portion is what would be new and different in the law assuming passage and a signature by the governor.

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Alternate Senate Bill Would Move Missouri Presidential Primary to March

Last month FHQ described the state House-based effort to shift the date of the Missouri presidential primary back into compliance with national party rules. Now there is an alternative bill in the state Senate. The two are not companion bills.

The aforementioned HB 127 would move the primary from the first Tuesday after the first Monday in February to the first Tuesday after the first Monday in April. However, the bill (SB 177) introduced by state Senator Eric Schmitt (R-15th, St. Louis) would push the primary back only a month to March. That makes the legislation most like the majority of legislation addressing the primary date during the 2011 legislative session.

A couple of notes:
1) Again, the Missouri presidential primary is currently scheduled for February. That will not be compliant with either national party's ultimate delegate selection rules. The Show-Me state, then, is the rare state that has to make some change in its date to comply with those rules. The other potential early February states have other options. Presumably Missouri would too (at least on the Republican side). The Missouri Republican Party opted for a March caucus to avert sanctions from the RNC and Show-Me state Democrats were granted a waiver because the date of the primary was determined by the Republicans in the majority in both chambers of the General Assembly. The decision on the part of the Democratic Rules and Bylaws Committee was made easier by virtue of the fact that President Obama was running unopposed for the Democratic nomination. That condition will not exist in 2016. In other words, if the primary is not moved back, the Democratic Party in the state would have a tougher case to make before the RBC.

2) Traditionally, Missouri Republicans have allocated their delegates in a winner-take-all fashion since the primary format was reintroduced for the 2004 cycle. Only the House bill would allow for that practice to continue. An April primary date -- as called for in the House version of the bill -- would place the Missouri presidential primary out of the March (and earlier) proportional window called for in the RNC delegate selection rules and allow the state GOP to maintain the winner-take-all allocation. Alternatively, if the March Senate bill passes both chambers and is signed into law, the state party would have to alter its delegate selection plan in some way. This is only a concern among Republicans in the state since the DNC mandates a proportional allocation of delegates. But this may be some cause for conflict between the chambers of a Missouri General Assembly controlled by Republicans.

...and if you followed the state legislative effort/inability to move the Missouri primary in 2011, this is potentially some cause for concern.

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Texas Bill Would Move Presidential Primary to February

The slow crawl toward 2016 continued last week in the Texas legislature.

Though the bulk of legislation regarding any future dates of presidential primaries is most successful in the year immediately prior to the presidential election year, that does not preclude state legislators from introducing legislation at other points in a given presidential election cycle. No, it does not prevent the introduction of such legislation, but the timing does have an impact on whether said legislation is successfully signed into law. During the 2012 cycle, only Arkansas (2009) and Illinois (2010) shifted via legislation the dates on which their respective presidential primaries would be held. The rest of the primary movement witnessed happened during the 2011 terms of most state legislatures.

It is with that caveat that FHQ raises the legislation filed in the Texas Senate last week. SB 452, sponsored by Senator Dan Patrick (R-7th, Houston), would shift the presidential primary as well as the concurrent primaries for other offices from the first Tuesday in March to the first Tuesday in February. Now, under the current rules or likely rules of both parties, such a move a would make the Texas presidential primary non-compliant. [Editor's Note: FHQ does not foresee changes to either party's rules that would change that.] And though the conditions have changed from 2012, it is unlikely that this legislation will make it through both chambers of the legislature and onto Governor Rick Perry's desk during this session.¹

The best evidence of this is the fact that a nearly identical bill prefiled in 2010 ahead of the 2011 Texas legislative session never made it out of the House committee to which it was referred. The only difference between the bill Representative Roberto Alonzo (D-104th, Dallas) filed in 2010 (HB 318) and the current legislation is that section 1.b now refers to the later runoff election date that came out of the redistricting battle. That date is shifted up a month as well. The rest of the bill is exactly -- verbatim -- the same. And incidentally, a House bill exactly like the 2011 bill was proposed and went nowhere in 2007. Perhaps the fact that a Republican has introduced the legislation in the state Senate will make some difference in the ultimate success of the bill. If, however, the previous House bills are any indication, then that is not likely.

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Thanks to Richard Winger at Ballot Access News for passing the news of the introduction of this bill to FHQ.

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¹ For one, complications with the redistricting process kept the date of the 2012 Texas primary in a constant state of flux from December 2011-March 2012. as the review of the new lines were challenged in the courts. Secondly, the Republican Party of Texas had no desire to break the RNC rules concerning timing or the new proportionality requirement. Part of this was driven by the fact that the RNC legal counsel at the time was the Texas national committeeman. That is no longer the case.

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Thoughts on Where the 2016 Presidential Primary Rules Stand, Part One

Way back in August 2012 -- in the midst of the Republican National Convention -- FHQ promised to revisit the proposed or final Republican rules. Granted, we did not get access to the 2012 Rules of the Republican Party -- the rules that will govern the 2016 nomination process -- until about two weeks ago, so FHQ did not have the opportunity to comment in full on what emerged from Tampa.¹

...until now.

However, rather than deal with just the Republican rules, FHQ will examine the state of the 2016 rules across the two parties in a two part post. Most, but not all of the news on this front is coming from the Republican side, but that is mainly a function of the GOP having to address the bulk of their rules at the preceding convention (...as mandated by, well, the party's rules). I'll use the second post as a platform for discussing the collective implications of both parties' sets of rules on the 2016 process.

The key thing concerning the development of the 2016 RNC rules coming out of Tampa was the addition of one rule in particular, Rule 12:

Amendments:The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2014. 

Now, if you will recall, the rules handed down from the 2008 Republican National Convention in St. Paul empowered a panel -- the Temporary Delegate Selection Committee (a group to be mostly selected by the RNC chair) -- to examine the party's delegate selection rules and make recommendations for rules changes to the full RNC membership. This was the group that delivered the proportionality requirement and the calendar requirement changes that better aligned with the Democratic Party rules.

FHQ has detoured to 2008 as a means of pointing out the differences the party has in changing its rules between conventions for 2016 as compared to the 2012 cycle. While the Temporary Delegate Selection Committee did not have carte blanc to alter the rules adopted in St. Paul, the body was uniquely empowered and had the full weight of the national party chair behind it. That is not to suggest that Rule 12 above does not, but the ability to change the rules after the convention is more constrained ahead of 2016 than they were for 2012. And the bar for affecting any changes is much higher. It requires a majority of the Republican Rules Committee to agree on the alterations and then a three-quarters supermajority of the full 168 member RNC to enact the change(s).

In practice, that likely translates to some relationship between the scope of change and how likely said change is to pass the full RNC. Stated differently, controversial changes would be more difficult to ram through than less substantive corrections that might apply to language or punctuation within the rules. Again, change can occur -- even potentially controversial change -- but the trick is going to be getting the requisite number of votes.

We start with that rule because the following rules discussion will be based on rules that could be changed prior to September 2014. And truth be told, do not expect any wholesale changes. But let's have a look at how the rules and penalties regarding the timing of delegate selection events and the method of allocation stack up for 2016 relative to 2012.²

Timing
Then (2012): Rule 15 (b):

(1) No primary, caucus, or convention to elect, select, allocate, or bind delegates to the national convention shall occur prior to the first Tuesday in March in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may begin their processes at any time on or after February 1 in the year in which a national convention is held and shall not be subject to the provisions of paragraph (b)(2) of this rule. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(1) No primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention shall occur prior to March 1 or after the second Saturday in June in the year in which a national convention is held. Except Iowa, New Hampshire, South Carolina, and Nevada may conduct their processes no earlier than one month before the next earliest state in the year in which a national convention is held and shall not be subject to the provisions of paragraph (c)(2) of this rule. 

Implications:
Looking at the changes, there is not a whole lot there; nothing more than subtle changes.

The "other processes" addition provides the RNC with some cover should state parties attempt to circumvent the rules with, say, a hybrid allocation process similar to the primary-caucus Texas Democrats use (the so-called Texas two-step). Any step that has any direct bearing on the election, selection, allocation or binding of delegates is covered under the rules.

The "March 1 or after the second Saturday in June" addition -- replacing "first Tuesday in March" -- is also not a significant change. March 1 is the first Tuesday in March in 2016. The insertion of the second Saturday in June clause merely brings the Republican window in line with the Democratic Party window in which contests can be held. This helps the party avoid the "Utah primary on the last Tuesday in June" problem and gives the party some extra time to certify and credential delegates to the convention. [It should be noted that there has been some talk within the RNC about holding an earlier convention in 2016, instead of holding one in August. This move provides the party with a little extra cushion to fulfill the above activities before the convention, should it actually occur earlier.]

The biggest change in this rule is the "no earlier than one month before the next earliest state" portion that applies to the scheduling of the four carve-out states. But even that is pretty limited in scope and only really bows to the reality of the calendar process over the last couple of cycles. That one month time span, if you look at the calendars from 2008 and 2012, seems like (about) the requisite amount of time for Iowa, New Hampshire, South Carolina and Nevada to schedule their contests. This rules change just puts that potential scheduling on something of a sliding scale. If, for instance, the Missouri primary does not budge from its current February 2 date, then Iowa, New Hampshire, South Carolina and Nevada could not hold a contest earlier than January 2 (or earlier than January 4 or 5 if Iowa and New Hampshire respectively wanted to keep their contests on their traditional Monday or Tuesday positions). If Missouri moves, the Arizona and Michigan become the problems at the end of February. That would mean a potential end of January beginning to the calendar -- an improvement over 2008 and 2012.

All in all, there is not too much groundbreaking stuff here. The carve-out states gain some potential leeway, but only under certain circumstances: if the next earliest state goes earlier than the first Tuesday in March.

Allocation
Then (2012): Rule 15 (b):

(2) Any presidential primary, caucus, convention, or other meeting held for the purpose of selecting delegates to the national convention which occurs prior to the first day of April in the year in which the national convention is held, shall provide for the allocation of delegates on a proportional basis. 

Now (2016): Rule 16 (c) [changes in bold and italics]:

(2) Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to April 1 in the year in which the national convention is held may provide forthe allocation of delegates on a proportional basis. 

Implications:
Subtle is the word in Rule 16 (c) (2) as well. However, the impact as of now is pretty great. But FHQ will get there.

Changing meeting to processes and then including the actions being regulated is loophole protection and nothing more. That is the same as was the case in Rule 16 (c) (1).

That is true for the change from first day in April to April 1. There is no substantive change there.

However, the switch from "shall" to "may" is hugely consequential. As it stands now -- with "may" in the rule -- state parties are not forced to be proportional if those states hold contests prior to April 1. Rather, those states have a proportional allocation of delegates as an option. This is actually pretty big. It negates the need for the enforcement mechanism specified in Rule 17. It is also something that the RNC is aware of and a change to "shall" is under consideration by the Republican Standing Committee on Rules. [FHQ will circle back to this a little later on.]

Before we move on to the penalties in Rule 17, let me draw your attention to one other change to Rule 16. You will  have noticed that the relevant Rule 15 (2012) rule is subsection (b) whereas the same section in Rule 16 (2016) is subsection (c). That is due to the addition of a subsection (a) to Rule 16. Here is that rule:

Rule 16 (a):

Binding and Allocation.(1) 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.

(2) For any manner of binding or allocating delegates under these rules, if a delegate (i) casts a vote for a presidential candidate at the national convention inconsistent with the delegate’s obligation under state law or state party rule, (ii) nominates or demonstrates support under Rule No. 40 for a presidential candidate other than the one to whom the delegate is bound or allocated under state law or state party rule, or (iii) fails in some other way to carry out the delegate’s affirmative duty under state law or state party rule to cast a vote at the national convention for a particular presidential candidate, the delegate shall be deemed to have concurrently resigned as a delegate and the delegate’s improper vote or nomination shall be null and void. Thereafter the secretary of the convention shall record the delegate’s vote or nomination in accordance with the delegate’s obligation under state law or state party rule. This subsection does not apply to delegates who are bound to a candidate who has withdrawn his or her candidacy, suspended or terminated his or her campaign, or publicly released his or her delegates. 

I'll spare you the highlighting here and mention that you do not get too far into reading the above rules without realizing that they are part of the rules-related reaction to the Paul campaign delegate strategy in 2012.

Subsection (1) addresses the caucus shenanigans. The attempt here is to make the first statewide step of a caucus (or any other contest) binding in terms of the ultimate allocation of delegates. This presumably does away with the confusion over how delegates in those January and February 2012 caucus states like Iowa, Colorado, Maine and Minnesota are counted/allocated. In other words, no more waiting until the convention to determine (or to hope to finally determine) which candidate the delegates are actually supporting at the convention. This is a good thing for the national party and the candidates (in terms of having a firm running tally of delegates within the context of an evolving campaign), but has not been greeted with enthusiasm by state parties that see this change as an infringement on their ability to determine their own method of delegate allocation. The rules are always about trade-offs among the various interests involved.

In subsection (2), the intent is to account for the enforcement of the binding mechanism discussed in subsection (1) and later in the rest of Rule 16 (discussed above). This rule helps the RNC to avoid the "bound to Romney but really a Paul supporter" loophole that was discussed in the lead up to the Tampa convention. Under this provisions of this rule, bound means bound. And either the delegate votes according to how they are bound or they are removed and the delegate's vote is recorded as if the delegate had voted in accordance with how they were bound. The bottom line is that this in tandem with the changes to Rule 40 sets in stone the convention vote for nomination ahead of time.³ Again, this is a loophole closing action that the RNC wanted but the Paul folks at the convention were not too keen about.

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Broadly speaking, the above are the "rules" that affect the responses of state parties' delegate selection plans. The following are the "penalties" portion of the rules if states violate any of the provisions in Rule 16.

Enforcement of Rules
Then (2012): Rule 16:

(a) If any state or state Republican Party violates The Rules of the Republican Party relating to the timing of the election or selection process with the result that any delegate from that state to the national convention is bound by statute or rule to vote for a presidential nominee selected or determined before the first day of the month in which that state is authorized by Rule No. 15(b) to vote for a presidential candidate and/or elect, select, allocate, or bind delegates or alternate delegates to the national convention, the number of delegates to the national convention from that state shall be reduced by fifty percent (50%), and the corresponding alternate delegates also shall be reduced by the same percentage. Any sum presenting a fraction shall be increased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternates. 

Now (2016): Rule 17:

(a) If any state or state Republican Party violates Rule No. 16(c)(2), the number of delegates and the number of alternate delegates to the national convention from that state shall each be reduced by fifty percent (50%). Any sum presenting a fraction shall be decreased to the next whole number. No delegation shall be reduced to less than two (2) delegates and a corresponding number of alternate delegates. If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state, and the corresponding alternate delegates shall also be reduced to nine (9). 

(b) If any state or state Republican Party violates Rule No. 16(c)(2) of The Rules of the Republican Party, the Republican National Convention shall provide for the allocation of the selected at large delegates (excluding members of the Republican National Committee) among the candidates who received more than 10% of the votes cast in such primary, convention or caucus in accordance with and in proportion to the votes cast for each such candidate as a part of the total of the votes cast for all such candidates in that primary, convention, or caucus. 

Implications:
There is a lot here. So, buckle up and let's have a look around.

The first thing to note is that a second subsection has been added to the 2016 rules that did not exist in 2012. That is with good reason. If you will recall, the 2012 rules ran into a problem when Arizona and Florida not only broke the timing rules but the allocation (proportionality) rules as well. There was no provision in the rules in 2012 that applied any penalties to more than one penalty. In other words, once the rules were broken, they were broken. However, states were not necessarily being treated equally in that instance (not that that was the goal). The same 50% delegation reduction was applied to any state that broke one rule as they were states that broke more than one of those rules. There was no provision for a second penalty and as the RNC noted in the midst of primary season there were to be no double penalties. There was nothing in the rules to account for either.

The changes to the 2016 enforcement alter that dynamic by adding a specific penalty for a specific violation. According to subsection (a), states violating the proportionality requirement -- assuming that "shall" is reinserted in Rule 16 [see above] -- receive the 50% reduction that was standard in 2012. Florida, for instance, would have been reduced from 99 delegates to 49 for having stuck with a straight winner-take-all allocation of delegates.

There are a couple of additional notes to make about the proportionality requirement while we are on the subject.

1. Notice that Florida was reduced from 99 delegates to 49 delegates. If you recall the penalty that was actually levied against Sunshine state Republicans in 2012, you will remember that the total number of delegates at stake was 50. This is to account for another change to the rule. Half of 99 is 49.5. In 2012, that rounded up to 50. In 2016, fractional delegates are rounded down to the nearest whole delegate. 
2. If you shift from subsection (a) to subsection (b), you will also notice that the RNC has provided for the forced proportional allocation of delegates should states continue to maintain non-compliant winner-take-all rules in contests scheduled prior to April 1. Should the state parties not voluntarily allocate/bind the delegates proportionally, the RNC will do that for them at the convention. The threshold for candidates receiving delegates is 10%. Any candidate receiving over 10% of the primary or caucus vote is apportioned delegates approximately proportionate to his or her share of the vote among those candidates over 10%. This is akin to how New Hampshire has always allocated and bound delegates as mandated by state law. It is worth noting that states staking out a hardline position on this issue (maintaining winner-take-all rules) forgo some of the other less stringent methods of achieving proportionality as called for in the 2012 RNC legal counsel memo laying out the definitions.⁴ This is noteworthy because violators who claim such a position on proportionality lose latitude in determining their own method of allocation. Again, there is more than one way to get to proportionality, but if violating states maintain winner-take-all rules, they lose that leeway.  

Now, let's look at the penalties associated with timing violations (the second half of subsection (a) above). This gets tricky based on a discrepancy in the language between the "rule" and the "penalty". Looking back at Rule 16, the cutoff for determining a violation of the timing rule is March 1. However, the penalty in Rule 17 does not mention March 1. Instead, Rule 17 sets that cut point for the last Tuesday in February. That means that there is a weeklong window -- between February 23 and March 1, 2016 -- for states to hold contests with no penalty. As the calendar stands now, Arizona and Michigan, both of which are currently scheduled according to their respective state election laws for February 23, would not be penalized for holding their primaries then. Both states seemingly violate the provisions of Rule 16, but are not affected by the penalty in Rule 17 because of the language therein.

Coming out of Tampa, as was pointed out in the comments to our Arizona post last week, there was CNN item spelling out a slightly different rules/penalties alignment. As Peter Hamby reported, states that went ahead of the last Tuesday in February would be hit with a "super penalty" (more on that in a moment), but states that fell in the buffer zone between the last Tuesday in February and March 1 would face a less harsh 50% reduction. That may have been or may be the intention of the rules, but that is not what is described above in Rule 17.

Rule 17 (a) calls for states violating the timing rule -- going before the last Tuesday in February -- to have their total number of delegates reduced to 12 (9 delegates plus the three automatic RNC delegates). Additionally but separately, states that violate the proportionality requirement would be subject to a 50% reduction. There is still no double penalty provision. States that violate both rules would have 12 delegates. But a state that holds a contest in the last Tuesday in February to March 1 window and allocates delegates proportionally is within the rules and would not lose any delegates. States with contests in that window with winner-take-all allocation methods would be docked 50% of their delegates.

The fact remains, however, that a state can hold a contest before March 1 and not be penalized for it. There is no 50% penalty associated with scheduling a delegate selection event in that week before March. Again, that may be the intent -- and where the rules ultimately end up -- but that is not where they are now.

Either way, the practical implication of this is that there is some incentive for states to move up into that "buffer zone". Whether states actually do that remains to be seen. Arizona and Michigan are already in that window on the calendar. Arizona would lose 50% of its delegates only if the state Republican Party fails to alter its allocation/binding mechanism from winner-take-all. Michigan would have been compliant on both counts in 2012 (...but not without some issues).

The other big question that emerges from this -- and there are others -- is "What about Florida?"

Indeed.

What about Florida?

Would actors in Florida be enticed by a free landing spot on February 23 alongside Arizona and Michigan; one without penalty assuming the RNC does not change the rule or assuming that the Republican Party of Florida shifts away from a winner-take-all allocation of delegates. Granted, Florida has demonstrated over the last two cycles that a 50% reduction to their delegation is not a deterrent to a non-compliant primary date.

Furthermore, would the Presidential Preference Primary Date Selection Committee charged with setting the date for the primary be winning to share a date with Arizona and Michigan? Would they consider moving back to a non-traditional (non-Tuesday) position on the calendar but also during that last week in February? A Saturday primary may be workable, but that would put Florida at least seventh in the order of states on the calendar. Decision-makers in the state in 2011 were adamant about being fifth in that order behind the carve-out states. Again, FHQ says that would place Florida at least seventh because other states could opt to move into that window before March 1.

That may force Florida to take the poison pill and push ahead of February 23 on the calendar, reducing the state's delegation to 12 in the process and pushing the carve-out states even earlier (at least one month ahead of Florida if the state is ahead of February 23). The rationale within Florida could very easily be that the nomination process is less about delegates that early on than it is about momentum. Still, falling to 12 delegates would certainly affect how the candidates' campaigns perceive Florida in that calculus. That was kind of the point from the RNC perspective.

One last thing about the carve-out states and timing: They gain some added protection, but FHQ doesn't think it is as much as some let on coming out of Tampa. Instead of a "no earlier than February 1" restriction, the carve-out states have a sliding "one month ahead of the next earliest contest" window in which to schedule their contests without penalty. The carve-out states are still not subject to the proportionality requirement, but are subject to the timing reduction (12 delegates) if the four states cannot manage to fit all of their respective contests into the month window before the next earliest contest. This likely is not an issue, but it could be if Florida pushes its primary into January and the calendar flirts with new years again. The month long period may not -- depending on how the calendar shakes out -- be enough for the carve-outs to schedule everything with the spacing they like or require based on state law. In addition, even if the rules allowed the carve-outs to hold late 2015 contests, there would likely be resistance to actually doing so. Not for reasons based on the rules so much as having to coordinate the contests during the holidays.

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Finally, the RNC also added to the rules for 2016 a waiver provision specific to the timing and proportionality requirements in Rule 16. There was a waiver process in 2012 but it only referred to violations of the October 1 deadline for finalizing delegate selection plans in the year before the presidential election. Additionally, allowances were made for states that could not meet that deadline or use the delegate selection plan from the previous cycle due to a conflict. Regardless, everything was specific to the October 1 deadline and not the timing or proportionality requirements. There is now a waiver process in place for states that cannot meet the requirements in Rule 16.

Rule 16 (f):

(3) The Republican National Committee may grant a waiver to a state Republican Party from the provisions of Rule Nos. 16(a)(1) and (2) where compliance is impossible and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party. 

Compliance can be difficult when the opposing party is in control of the apparatus that would make those requisite changes to state law. There is no clear example of that on the Republican side as of now. One can, however, envision such problems on the Democratic side with Republican-controlled early states like Arizona, Florida and Michigan.

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This is probably way too much even for the first part of a two part post, but FHQ will leave you with the foundation of the Republican rules and return later to talk about the potential for rules changes on both sides and what that may mean for the calendar and the process in 2016. Stay tuned for part two.

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¹ Here also are the the full 2012 Rules of the Republican Party as adopted at the Republican National Convention in Tampa:

2012 Rules of the Republican Party by

² Due to the insertion of Rule 12 all subsequent rules for 2016 are one number higher than they were in the 2012 rules. Rule 15 laying forth the timing and proportionality requirements (among other things) is now Rule 16 in the current rules.

³ FHQ will deal with the changes to Rule 40 in a footnote. These alterations have been more widely discussed in the media in the immediate aftermath of the Tampa convention.

Nominations (at the convention):
Then (2012):

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a plurality of the delegates from each of five (5) or more states, severally, prior to the presentation of the name of that candidate for nomination. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall declare that the candidate has been nominated. 

Now (2016) [changes in bold and italics]:

(b) Each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a majority of the delegates from each of eight (8) or more states, severally, prior to the presentation of the name of that candidate for nomination. Notwithstanding any other provisions of these rules or any rule of the House of Representatives, to demonstrate the support required of this paragraph a certificate evidencing the affirmative written support of the required number of permanently seated delegates from each of the eight (8) or more states shall have been submitted to the secretary of the convention not later than one (1) hour prior to the placing of the names of candidates for nomination pursuant to this rule and the established order of business. 

(d) When at the close of a roll call any candidate for nomination for President of the United States or Vice President of the United States has received a majority of the votes entitled to be cast in the convention, the chairman of the convention shall announce the votes for each candidate whose name was presented in accordance with the provisions of paragraph (b) of this rule. Before the convention adjourns sine die, the chairman of the convention shall declare the candidate nominated by the Republican Party for President of the United States and Vice President of the United States. 

Implications:
The functional impact of the above changes is to raise the bar on would-be challengers to the presumptive nominee of the party. Instead of controlling delegations of five states, a fringe candidate seeking nomination, according to subsection (b), is required to control the delegations (have controlling majorities) in eight states and to get the signatures of delegates from those eight states to the secretary of the convention an hour in advance of placing the names of candidates in nomination. In referencing the other party rules herein and the rules of the House of Representatives (the parliamentary procedures under which the convention is conducted), the changes to Rule 40 (b) cut off any parliamentary maneuvering the supporters of a challenging candidate may employ. As in Rule 16, the changes close loopholes that were exploited by the Paul faction leading up to and during the convention.

Presumably, the agenda of the convention will specify when the placing of names in nomination is to occur. Otherwise, the point an hour ahead of that time is somewhat ambiguous to would-be challengers and their delegates.

Echoing the "votes set in stone" point in the Rule 16 discussion above, the changes to subsection (d) provide very little wiggle room to would-be challengers to the nomination. Either the votes are there ahead of time across eight states to nominate such a candidate or they are not. That announcement is and the business of the convention continues.

In total, these rules changes in tandem with those above seemingly and effectively hamper the type of strategy the Paul campaign utilized or attempted to utilize in 2012. It gives, for better or worse, the power over the nomination (at this late stage of the process) back to the RNC. That is good for the party and its presumptive nominee, but may leave a bad taste in the mouth of any candidate attempting to vie for the parties nomination at the convention; something that hasn't happened on the Republican side (in some way, shape or form) since the Ford-Reagan clash in 1976.

⁴ These definitions of proportionality or the ways of achieving proportionality are still not directly included in the rules document. The 2008 Rules of the Republican Party (the rules for 2012) have that memo appended to the document, but it is more or less assumed -- not explicitly laid out -- that those same definitions apply in 2016.

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Is it really that 'tricky' to rig the electoral college in advance?

Let me open by saying that I agree with about 99.9% of what Jon Bernstein has to say in his most recent take down of the rash of discussions surrounding the various proposals in Republican-controlled blue states to reallocate electoral votes. FHQ, furthermore, agrees that most of this is likely to go nowhere. [But if I had to handicap it, there's a greater chance that something passes in Michigan, Pennsylvania and Wisconsin than in Florida, Ohio or Virginia. It's all about the Spectrum.]

However, I kind of part ways with Jon in his final paragraph where he discussed state legislators attempting to game things out in advance of any given presidential election cycle:

"But the point here is that even if state Republicans were perfectly willing to ignore their own incentives and instead do whatever the national party believed was best, it still would be extremely difficult to game out the proper combination of states in advance. If they could do the entire nation, then it would be easy. But since that can't be done, what remains just isn't very promising."

There are two parts to this: 1) Gaming the order of states ahead of time and 2) gaming the resulting allocation plans accordingly.

Jon is addressing the first, but I don't see either of those as that difficult. Based on our Electoral College Spectrum alone, one can come to a reasonable conclusion on the basic ordering of states. There is variation over time, but that is accounted for in my ECS-based handicapping of the six states above. Again, these plans make more sense now in Michigan, Pennsylvania and Wisconsin than they do in Florida, Ohio and Virginia. The latter group is seemingly more attainable for a Republican candidate.

...as of now.

Regardless, I don't think we are all that far removed from a simple added level of complexity in all of this that would add some oomph to the Republican efforts underway in some state legislatures. And this speaks to the second point on gaming the current system. I can't help but think back to the Republican presidential primary season a year ago. Layered into the state party rules for delegate allocation in several states were a set of conditional rules. If a candidate won 50% of the statewide vote, for instance, winner-take-all rules would be triggered either on the total allotment of delegates (i.e.: Alabama -- but the allocation was split across at-large and congressional district delegates) or in some cases just the at-large delegates (i.e.: Ohio).

My point is that these plans are not all that far removed from better gaming future conditions while also accounting for the uncertainty associated with elections from cycle to cycle. But as I said, we have yet to see any plan proposing the conditional winner-take-all allocation of electoral votes. And as many have pointed out, there is little to stop state legislatures (or state governments) from allocating electoral votes based on just about any set of parameters.

What does exist are the conflicts I mentioned back in December between state, state legislature and state party incentives versus national party incentives to change the rules (Jon has also mentioned this several times in the intervening period.). Additionally, there seems to be something of a line of demarcation between being nakedly partisan (as the current plans seem to be) and being NAKEDLY PARTISAN (as conditional plans might be construed or say simply allocating all of the electoral votes to the Republican candidate no matter the outcome).

Take Pennsylvania. Let's assume that the Republican-controlled state government passed a plan that made the allocation of electoral votes dependent upon the winner receiving a certain percentage of the vote. If we look at the period of time in which Democrats have dominated the state in the electoral college (1992-2012), we could set that threshold at 50.37% of the vote (the average of the winning candidates' shares of the vote in Pennsylvania over that time). If the winner received anything north of that, they receive all of the electoral votes.

Of course, the two Clinton elections drove that average down because of Perot's candidacy. If we subtract those two elections from the equation, we get an average winning candidate vote percentage of 51.99%. By extension, if the winning candidate wins over 52% of the vote, then, that candidate wins all of the electoral votes. If not, then the allocation is dealt with in a fashion determined by the legislature. Let's assume the allocation is based on congressional districts in that case.

The obvious rebuttal to this is, "Well that's (52%) a pretty high bar that only seemingly helps the Democratic candidate take all of the electoral votes in some extreme cases (2008) and never seemingly affords that opportunity to the Republican candidate. How does this make the Republican Party better off?" Barring an unlikely fundamental shift in just Pennsylvania, it doesn't. However, that doesn't prevent Pennsylvania Republicans from gambling a little bit and setting that threshold for the conditional winner-take-all allocation of electoral votes a little lower. At the very least this opens the door to potentially winning all of the electoral votes in the future given a more likely national shift toward Republicans that makes Pennsylvania more attainable.

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Again, I agree with Jon (I don't think much of this is going anywhere because of the complexities of interests involved.), but it is not beyond the realm of possibility that Republicans could add a rather simple conditional step to these proposals to better game the electoral college system. The only question is whether it is palatable to continually institute these types of plans in more states when permanent changes to the ordering (states going on/coming off the list) do arise.

...or when Democrats follow suit when the tables potentially begin to turn in terms of partisan control of state legislatures in red presidential states.

Neither of these two flavors of gaming the system strikes me as all that difficult to pull off. The hard part is maintaining all of this over time in a way that is permanently advantageous when changes inevitably occur. It would be like treating the electoral college like the quadrennial commissions that tweak the Democratic Party delegate selection rules. No one really has a stomach for constant changes to the electoral college system like that, but that is likely the Pandora's box any of these changes would open if passed and implemented.

Is it really that 'tricky' to rig the electoral college in advance?

In the short term, probably not. A party may not tip the balance enough to affect the outcome but it can rig things to be more advantageous to itself in the hopes of winning the electoral college.  In the long term, however, it becomes very difficult to maintain. "Is either worth it?" may be the better question. FHQ still doesn't think so, and my guess is that most state legislatures ultimately fall into that category as well.

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