Rand Paul's 2016 Ballot Options in Kentucky

It warms FHQ's heart every time there are attempts made to find a workaround for the ballot issues Rand Paul faces in Kentucky next year. Josh Voorhees from Slate is the latest to volunteer his assistance to Paul 2016 (both for president and Senate). The thing about these pieces when they periodically pop up is that they either way over-complicate matters or miss pretty obvious alternative routes for the junior senator from Kentucky to take in running for two offices in 2016.

There are two parts to this, primary and general election. And there are different issues attendant to working around the "name can't appear more than once on a ballot" problem that are specific to each phase.

Let's look at the primary phase first.

In a perfect world -- from the Paul camp's perspective -- the Kentucky state legislature would pass legislation to create a separate presidential primary and move that election up to an earlier point on the primary calendar. That way, the senator would not appear on the consolidated primary ballot twice. However, Democrats in the Bluegrass state weathered the 2014 storm and managed to hold the Kentucky state House. Additionally, majority Democrats in the House subsequently balked at the idea of creating and funding a separate presidential primary just to benefit Senator Paul's political ambitions.

Given that partisan stalemate, what options are available to a dual Paul candidacy in 2016?¹

The quickest, easiest fix is the one that Rand Paul was talking about on election night 2014. If the presidential primary cannot be separated from the other primaries, then Kentucky Republicans could simply shift the mode of delegate allocation from a primary to caucuses. That may be the best outcome for Senator Paul, but it may not be ideal to Kentucky Republicans who want to see the nomination process opened up to a broader Republican electorate.

Again, that's the easiest route, but let's assume that there are enough people against a primary-to-caucuses shift on the Kentucky Republican State Central Committee to block this move. All's lost, right? No. As Voorhees points out, Rand Paul could just sit the May Kentucky primary out and play the presidential nomination game in all the other states. He could, but that would be a rather strange, if not ridiculous, path to take. That strikes FHQ as a last, last resort, ranking after even the court challenges options.

Let's think about this for a second. It seems to FHQ that it was all the rage in late 2011, and my god, stretching into primary season in 2012, to devise some way for a Republican candidate not in the then in the race to enter, challenge the sure-to-falter/moderate Mitt Romney and win the nomination at the convention.² But some of those lessons apply here.

One thing that FHQ has not seen discussed in the context of this Paul/ballot problem is the possibility of a write-in campaign during the primary. Its absence from the discussion may be for good reason: Kentucky law prohibits it. No candidate who is on the ballot elsewhere is eligible to be a write-in candidate.³ Voters can write the name "Rand Paul" in on the ballot in droves, but those votes would not be counted because Paul would not be eligible (having already appeared on the ballot as a senate candidate).

The other viable option -- if we're still assuming there is a consolidated May primary in Kentucky -- is to use the uncommitted option. If the race is still competitive in mid-May and Rand Paul remains one of the viable alternatives, then his campaign could urge supporters to vote the uncommitted line included on the Kentucky ballot -- the presidential preference portion of it anyway -- by law.⁴ This is not a foolproof fix -- there could be other uncommitted delegates not aligned with Paul -- but one would imagine that the Paul campaign could organize this and have its potential delegates file as uncommitted rather than for Paul. They would not be bound on the first ballot at the convention, but that is not likely to matter anyway (see footnote 4).

This seems far superior and more effective than sitting the Kentucky primary out. And such a move is not without precedent. The Obama campaign urged its supporters in Michigan to vote for "uncommitted" in 2008. The then-Senator Obama had his name removed from the Michigan ballot when it was clear that the Wolverine state would hold a non-compliant presidential primary in mid-January 2008.

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As for the general election, that is a tougher nut to crack.

The write-in option is still a no-go here, there is no uncommitted option on the general election ballot, and skipping a state is not really all that workable in a fall presidential race. But game planning for the general election before the nomination is wrapped up is a bit of a double-edged sword in Rand Paul's case. To some extent it is counting your chickens before they hatch, but this ballot issue is something he would face in the primaries and the general election. There is just an easier fix in the primary phase that will not necessarily help with the general election part of the problem.

Not that these laws are enforced anyway, but Kentucky is one of the states that does not levy penalties against would-be "faithless electors". If Paul manages to get the Republican nomination there are some potential avenues opened to his campaign on that front.

If we're after a workaround for Rand Paul, though, that is much easier in the Kentucky primary. Well, it is doable in the primary. The general election is a different matter.

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UPDATE (2/24/15): US Senate Majority Leader Mitch McConnell supports the effort to shift the Kentucky presidential nominating method from a May primary to March caucuses. That would seemingly add some heft to the idea ahead of the Kentucky Republican Party Central Committee meeting on March 7.

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¹ FHQ will only focus on the options that do not go through the courts. Due to the time it would take to adjudicate a conflict between Paul and the Kentucky secretary of state's office, that is a channel of last resort for Paul. There are other more viable options available to the senator anyway.

² Of course, no one else entered the Republican nomination race and Romney won the nomination.

³ This is relevant to the general election as well.

⁴ Those are big ifs. FHQ realizes talk of a brokered deadlocked convention is quite popular with such a wide open Republican race, but the invisible primary will winnow the field and with more than 30 primaries and caucuses potentially slated for the month of March, the 2016 Republican nomination race is likely to be over sooner rather than later. That more than likely means the nomination race will come to its conclusion before a May Kentucky primary.


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Michigan House Passes Amended Presidential Primary Bill

The Michigan state House on Wednesday, February 18 amended and passed the state Senate bill to reschedule the Wolverine state presidential primary.

By a 72-38 margin, the Michigan state House passed an amended version SB 44. The Senate passed the bill calling for a third Tuesday in March presidential primary date last week, but the House moved that date up a week to the second Tuesday in March. It is a minor change, but perhaps one that  is indicative of a compromise of sorts between the Michigan Senate and House. Both versions of the bill -- both dates (March 8 and March 15) -- are compliant with both national parties' delegate selection rules and the March 8 date does not conflict with voters/taxpayers ability to appeal property tax assessments; something that typically takes place during the week of March 15.

The March 8 date also allows Michigan to go as early as possible without potentially being overshadowed by the southern regional primary that appears to be forming the week before on March 1. And while a possible Big Ten primary would not occur with Illinois and Missouri on March 15, the idea is not dead as Ohio is currently scheduled to conduct its presidential primary on March 8.¹

Also, as FHQ mentioned when this bill passed the state Senate, the current Michigan Republican Party delegate allocation plan is compliant under the Republican National Committee rules on either March 8 or March 15. The contest would be conditionally winner-take-all if a candidate were to receive a majority of the primary vote. Absent that outcome, though, the allocation would be winner-take-all by congressional district with the statewide, at-large delegates allocated proportionally. This meets the RNC requirements for the pre-March 15 proportionality window (when states are required to have an element of proportional allocation in their plans).

March 8 might be a compromise between the two Michigan legislative chambers, but time will tell the tale there. The bill now heads back to the Senate in its amended form for further consideration.

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UPDATE (2/19/15): Senate concurs with House changes
UPDATE (2/20/15): Governor signs bill (changes primary date to March 8, 2016)

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¹ March 8 is a date that Alabama and Mississippi are currently slated to hold presidential primaries but have been linked to the SEC primary proposed for the week before March 8.


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Kansas Bill Would Once Again Cancel Presidential Primary

Legislation introduced on Tuesday, February 17 in the Kansas state Senate would cancel the presidential primary in the Sunflower state for the sixth consecutive cycle.

Kansas held a presidential primary last in 1992, but the state government has not appropriated funds for the election in any of the election years since. The practice, if the 2011 action by the state legislature is a guide, is to revise the presidential primary filing deadline and election date back four years on the calendar. That is true in the case of SB 239 as well.

The change is obviously a cost-savings move, but it is also reflective of an extension of what has become a customary practice in Kansas.

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UPDATE (2/25/15): Committee hearing on bill
UPDATE (3/5/15): Identical House bill introduced


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Arkansas Bid to Join SEC Primary Is In

Legislation was filed in the Arkansas state Senate on Tuesday, February 17 to create a separate presidential primary election and schedule it for the first Tuesday in March.

State Senator Gary Stubblefield (R-6th, Branch) introduced SB 389 which would for a third time establish a separate presidential primary in the Natural state. For most of the post-reform era, Arkansas has held its regular primary -- which included a vote for presidential preference -- on the next to last Tuesday in May. However, before the 1988 cycle and the 2008 cycle, legislators in Arkansas created and funded a separate presidential primary in order to have an earlier election in the state to decide the allocation of delegates to the national conventions. In both cases, Arkansas was either overshadowed by larger neighbors (1988) or ignored because candidates with Arkansas ties (Clinton and Huckabee) were seeking the presidential nominations of their respective parties (2008). And in both cases, legislators quickly reversed course and consolidated the presidential primary with the May primaries for other offices.

Now, as in the lead up to 1988, Arkansas is once again attempting to join forces with its southern neighbors to affect the next (2016) presidential nominations process and hoping the third time is the charm. But getting there may not be as easy as it is in other southern states seeking to join the SEC primary on March 1. Unlike Alabama (that reestablished a consolidated primary but broke from tradition by placing it in March and not June in 2011) or Mississippi (which established and maintained consolidated primaries in March years ago), Arkansas has to justify the creation and funding of a separate presidential primary election in March. That fact is not necessarily prohibitive, but it adds a layer of complexity to the Arkansas decision-making calculus that does not exist in other states across the South.

There is no price tag specified in the bill, but the state will pick up the tab through the State Board of Elections. As of now the Board appropriations legislation does not include a substantial increase for fiscal years 2015-2016 than it did two years ago for 2013-2014. The separate presidential primary was estimated to have cost Arkansas $1.7 million in 2008.

The one thing that is different now as compared to the past in Arkansas is that the Republican Party is in unified control of the state government. The possibility of a competitive if not wide open Republican nomination race may make that partisan control more relevant in this case.

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Return to a February Wisconsin Presidential Primary?

Wisconsin state Senator Tim Carpenter (D-3rd, Milwaukee) put out a press release today announcing his intention to introduce legislation to move the presidential primary in Badger state into February.¹

FHQ has felt like some legislation out of Wisconsin was inevitable, but this was not really what was expected. The Republican-controlled legislature moved the Wisconsin primary from the third Tuesday in February to the first Tuesday in April in 2011. That move was made to bring Wisconsin into compliance with the 2012 national party delegate selection rules, but also to allow the Wisconsin Republican Party to maintain its traditional winner-take-all method of allocation. Under the slightly tweaked 2016 rules, a state can hold a primary or caucuses with winner-take-all rules as early as the third Tuesday in March (March 15 during the 2016 cycle). March 15 also happens to be a date that Michigan is eyeing and on which Illinois and Missouri are already scheduled. In other words, March 15 would be an attractive landing spot for Wisconsin (Republicans) because of the winner-take-all element and the fact that some regional neighbors may end up there as well.

But that is not what Sen. Carpenter is proposing in his to-be-introduced legislation. Basically, Carpenter's bill would reverse the change made to the primary date in 2011. It would move the presidential primary from the "spring election" date on the first Tuesday in April to the "spring primary" date on the third Tuesday in February.² Such a shift, however, would put Wisconsin out of compliance with the national party rules and cost both parties a significant portion of their national convention delegations.

The penalties aspect of this potential move was not mentioned in the press release from the senator's office. That would very likely affect candidate/campaign behavior toward Wisconsin, negatively affecting the ability of the contest to influence the process. Also not discussed was the fact that Wisconsin Governor Scott Walker is quite likely to seek the Republican nomination and that former Secretary Hillary Clinton is unlikely to see more than token opposition for the Democratic nomination. A favorite son running for the Republican nomination is likely to tamp down on the amount of attention the other candidates would pay the state as would an uncompetitive Democratic race. And lest we forget, former Wisconsin Republican Party chair and current Republican National Committee chair, Reince Priebus, is not likely going to be supportive of such a move. The Republican-controlled legislature may alter the date of the Wisconsin presidential primary, but it is not likely to push a bill from a Democratic state legislator that would only draw the ire, if not pressure, from the Republican National Committee.

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¹ Here is the press release from Sen. Carpenter's office:

“Moving up the primary election date will give our state greater influence in selecting our presidential nominees.”Madison – Today State Senator Tim Carpenter (D-Milwaukee) announced that he will be introducing a bill to move up the date of Wisconsin’s presidential primary election to the third Tuesday of February.  

“In the last presidential election, Wisconsin’s increasing influence in the general election as a ‘swing state’ was evidenced by the many visits to our state by the candidates and national figures. I believe that our state should also have proportionate influence in the primary nominating process,” said Carpenter.

The current presidential primary date is the first Tuesday in April, by which time it is likely that the presidential nominees may have already been decided.

“The earlier the primary is held, the more influence it has on nominating the candidate. As there is not an incumbent president running in 2016, I believe that now is the time to implement this change in this election date,” said Carpenter.

The election date under this bill in 2016 would be Tuesday, February 16, 2016. This is after the Iowa Caucus and New Hampshire primary, but before South Carolina’s primary on February 27, 2016.

Wisconsin has previously held its presidential primary elections in February in both 2004 and 2008.

² Wisconsin election law refers to both a spring primary and a spring election and defines them as taking place on the dates described above.

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More on Minnesota March 1 Caucuses Move

As FHQ detailed this past Sunday, the two parties in Minnesota jointly agreed last week to hold precinct caucuses -- starting the delegate selection process -- on March 1, 2016.

One thing that becomes clear in the letter from the two party chairmen -- Keith Downey (R) and Ken Martin (DFL) -- and their subsequent comments on the move is that the national party rules and their attendant penalties were a part of the decision-making calculus.

Minnesota Precinct Caucuses Move (March 1)

The letter specifies that the agreement was reached "to meet the requirements for the 2016 Presidential nominating process set forth by both the Democratic National Committee and the Republican National Committee."

Minnesota Republican Party chair, Keith Downey, added in interviews later:

"This new date respects the traditional early-primary states’ status, and positions Minnesota’s caucuses to be part of a potential newly emerging March 1st group of states. We hope it will increase Minnesota’s stature in the Presidential nominating process for both our parties next year, which all-around is good for Minnesota voters."

...and...

"The March 1st date allows us to meet the respective presidential nominating calendars of each party, and we believe it will make Minnesota more relevant in the process."

All told, compliance with the national party rules was a meaningful layer added to the decision, but that was balanced with a desire to make the caucuses relevant (on an early enough date). The problem is that if March 1 maintains and enhances its current southern flavor, then Minnesota could be hard-pressed to find any attention from candidates otherwise drawn to a geographically concentrated grouping of contests. But notice that Chairman Downey said "relevance" and did not mention that Minnesota was chasing the attention or financial benefits motivating potential moves in states like Vermont or New Mexico.

This is a balancing act being witness elsewhere across the country as well. The Michigan Senate has passed a bill that would move the primary in the Wolverine state back to March 15, but on the House side, some are wondering whether that will be too late for the Michigan primary to matter. That speaks to the fact that decisions are being made at the state-level on the dates of these nominating contests, but that that process takes place in an environment of uncertainty. One state does not know what another state or group of states will do necessarily. Michigan might gamble that March 15 will be a competitive date on the calendar (and not after the point at which one candidate has developed a healthy lead) that will bring candidates into the state, but Minnesota seems to be making the "safer" move. They may not get the attention of other March 1 contests, but that date is more likely to keep Minnesota caucusgoers in a position to vote while the nomination is or appears to be undecided.


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Second Bill to Reestablish Presidential Primary Emerges in Idaho

The Idaho Senate State Affairs Committee has proposed another bill reestablishing the Gem state presidential primary and scheduling the election for the second Tuesday in March. In fact, SB 1066 is exactly the same as the previously introduced SB 1049 but for the addition of one section.

The intent of the new legislation is to define who is eligible to participate in the primary election. Under the current state law the state of Idaho defers to the political parties as to who can vote in the regular May primary election. Since the presidential primaries and those for other offices were consolidated until the presidential primary was repealed in 2011, there was no need for language extending the participation provision to presidential primaries specifically. Now that there is a proposal on the table to not only bring back the presidential primary for the 2016 cycle but to schedule it as a separate election, there is a need to name the proposed presidential primary election in the law.

That is all fairly abstract. Essentially, Idaho state law defers to the political parties in the state to decide if unaffiliated voters and those registered with the other party can participate in the primary, or in this case presidential primary, of a party. Under the current law, political parties notify the Idaho secretary of state of their intentions 180 days in advance of the primary. This deadline would change to the last Tuesday in November if SB 1066 is passed and signed into law.

This latest bill may or may not be a corrective addition to the original bill (SB 1049). If it is, then the new bill is likely to take precedence over the old one.

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UPDATE (2/25/15): Second, similar primary bill passes Senate committee 
UPDATE (3/3/15): Second, similar primary bill passes Senate


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Washington Legislation Would Move Presidential Primary to March

Bipartisan legislation has been proposed in the Washington state Senate to move the Evergreen state presidential primary from May to March.

At the request of the Washington Secretary of State Kim Wyman (R), legislation -- SB 5978 -- has been introduced to shift the presidential primary from the fourth Tuesday in May to the second Tuesday in March. The bill is backed by the state Senate majority leader -- Senator Joe Fain (R-47th, South King County) -- and the two ranking members on the Government Operations and Security committee -- Senator Pam Roach (R-31st, King/Pierce Counties) and Senator Marko Liias (D-21st, Lynnwood). That all means that this bill has some meaningful support to shepherd it through the state Senate (majority leader) and the committee the bill has been referred to first (ranking members on the GOS committee).

However, the broader picture of this bill is more muddled. The bill may have some powerful support, but that may only get it through the Republican-controlled state Senate. It is not clear that this presidential primary move would have support among the Democrats in control of the state House. That may have more to do with the history of the presidential primary in Washington state than it does about any friction between the two major parties in the Washington legislature.

Despite the fact that Washington has had a presidential primary in place since a 1989 ballot initiative created the election starting with the 1992 cycle, it has seldom been used by the two major parties as a means of allocating delegates to the national conventions. While the Washington Republican Party has had an on-again-off-again relationship with the primary (using it in some cycles but not in others), the Democrats in the Evergreen state have maintained a caucuses/convention process throughout. The lack of commitment to the presidential primary prompted Democrats in unified control of the state government in 2011 to cancel the primary for the 2012 cycle as a cost-savings measure.¹

That history may say something about how easily this legislation will move through the legislature or if it moves through the legislature. And regardless of the ease of movement through the legislative process, the state parties will not necessarily adopt the presidential primary as their means of allocating delegates in 2016. If history is a guide, then Democrats would very likely keep the caucuses/convention process and Republicans might fully or partially utilize the election.

If the bill is successfully pushed through the legislature and signed into law², and the Idaho presidential primary is restored, the neighbors would hold concurrent primaries on the second Tuesday in March (March 8, 2016). That is the date Mississippi and Alabama are potentially abandoning for the SEC primary on March 1, leaving only the Hawaii Republican caucuses and the Ohio primary on that date on the 2016 presidential primary calendar. Washington and Idaho may serve as something of a subregional primary on that day.

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UPDATE (2/17/15): Identical House bill introduced
UPDATE (2/19/15): Senate bill passes committee
UPDATE (2/27/15): Bill to cancel 2016 primary introduced
UPDATE (3/3/15): Senate bill passes


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¹ The 2011 bills had Republican support as well (though the state party opposed the move). And it should be noted that the effects of that legislation were only temporary. The sunset provision canceling the primary expired at the beginning of 2013 meaning that the primary was back for 2016, scheduled for the fourth Tuesday in May.

² That may be another point of resistance as Governor Jay Inslee is a Democrat.


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Minnesota Parties Jointly Agree on Compliant March 1 Caucuses

With just two weeks left before a rather important deadline, the Minnesota Democratic-Farmer-Labor Party and the Minnesota Republican Party agreed to conduct caucuses on March 1, 2016.

Minnesota represents one of the few instances where there are both presidential caucuses and some state law guidance on the conduct of those elections.¹ According to to the Minnesota statutes, the state parties must jointly agree on a date for the presidential-year caucuses on or before March 1 in the year prior to the presidential election. In the event that there is no agreement between the parties, the law automatically sets the date of the precinct caucuses for the first Tuesday in February.

That's a problem. No agreement means a February caucuses date out of compliance with the national parties' rules on delegate selection, and thus penalties from the national parties.

This very outcome is what transpired in 2011. February 28 came and went with no agreement between the DFL and Minnesota Republicans. That pushed the 2012 Minnesota caucuses up to February 7. Of course, the DFL devised a plan to hold the caucuses on February 7, but not reveal the results until March 6. That was enough of an action to get the DNC Rules and Bylaws Committee to grant the DFL a waiver, avoiding penalties from the national party. It also helped the waiver process for the Minnesota DFL that the Democratic Party was renominating President Obama and that he faced nothing more than token opposition in the primaries and caucuses.² In other words, that reality made the granting of a waiver much easier for the Rules and Bylaws Committee.

Republicans in Minnesota held non-binding caucuses which helped them skirt RNC sanctions barring nominating contests before the first Tuesday in March during the 2012 cycle. That did not stop candidates from campaigning there or the media from misinterpreting the results. It did, however, contribute to the RNC rules changes cutting off that non-binding loophole for 2016.

Needless to say, the dynamics changed for both parties in different ways, but that has prompted action among the parties in Minnesota where it was lacking four years ago. And there was no evidence of friction between the parties on this in 2011. None of the reporting indicated anything of that nature. Instead, it just appears to be an oversight on both sides that stemmed from the law change in 2010 that set the March 1 deadline in the first place.

Whereas clarity was lacking in 2011, it is not in 2015. The Minnesota caucuses are locked into March 1 for the 2016 cycle.³ And that removes Minnesota from the potential rogue state list.


Thanks to Mike Taphorn for sending news of this along to FHQ.

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¹ In most cases, caucuses and the rules governing them are the domain of the state parties. Their bylaws and other actions are the only things that affect the parameters of a given caucuses/convention process.

² There was no opposition to the president in the 2012 Minnesota caucuses.

³ Well, the parties are locked in to that date so long as the state legislature does not create a presidential primary election that the parties opt into. That appears unlikely, though, the possibility has been discussed in the past.


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New Mexico Republicans Chasing More Attention with Earlier Primary Attempt

Republicans in the Land of Enchantment seem to have grown tired of being at the end of the presidential primary calendar. The recent legislation introduced in the New Mexico state legislature appears to be motivated by a desire to get a piece of the early primary state pie.

Deborah Baker at the Albuquerque Journal reports that this sentiment stretches beyond Republicans in the state legislature to the state's representatives on the Republican National Committee.

New Mexico Republican National Committeeman, Pat Rogers, said,

"If New Mexico maintains a June primary, we’re going to be completely irrelevant. We not only won’t receive any visits; we may never hear the words ‘New Mexico’ during the campaign season.”

The bill's sponsor in the New Mexico, Representative Nate Gentry (R-30th, Bernalillo) -- the House Majority leader in the state House -- echoed that but added the economic benefits an earlier primary would bring:

“They’d [the candidates would] be staying in our hotels, eating in our restaurants … so it would really be a boost to the tourism industry.”

It is not clear how that would necessarily work. HB 346, the bill to move the primary, proposes shifting the date up to the third Tuesday in March. Illinois and Missouri are already scheduled for that date -- March 15 -- and Michigan has already passed legislation through one chamber to move to that date as well. That is not that crowded, but that could change. If a Big Ten  primary forms on that date with more midwestern partners for the states already there, that would potentially harm the New Mexico effort to draw attention from the candidates. There may be greener pastures on an earlier date or legislators in New Mexico could gamble that the race will still be active later in March where some other neighboring western states are either already scheduled or are considering moving.

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