Nevada Bill Would Create Presidential Primary, Schedule for January

To close the work week, the Nevada state legislature went out with a bit of a bang (...at least in the presidential primary universe).

On Friday, March 13, Assemblymen John Hambrick (R-2nd, Clark) and Stephen Silberkraus (R-29th, Clark) introduced AB 302. The legislation, seemingly a replica of the state Senate bill filed two years ago, would move the June primaries for state and local offices from June to January and consolidate with them a newly established presidential primary. Those concurrent primaries would together fall on the Tuesday prior to the final Tuesday in January according to the bill.

Since a similar version of this bill died in committee back in 2013, let's look back at some of FHQ's comments from then that are still relevant in light of this 2015 legislation [Note: These comments have been edited due to what has changed with the calendar since March 2013.]:

• The Tuesday before the last Tuesday in January 2016 is January 19 (the date as it turns out of the 2008 Nevada caucuses).


• This bill, if passed, would violate the national party delegate selection rules. Under the DNC rules, Nevada would initially lose half of its delegates, but would also be open to a stiffer punishment from the Rules and Bylaws Committee if the committee deemed such a move appropriate. The Nevada caucuses are protected in the DNC rules, not a primary. Those caucuses are slotted into a position no earlier than ten days before March 1 (in 2016). That raises two interesting conflicts with the Democratic rules: 1) the switch to a primary when the caucuses are protected and 2) a January primary date is much earlier than February 20, the date 10 days prior to March 1. Nevada Democrats did caucus in January 2012 with no penalty and with similar language in the DNC rules as exist for the 2016 cycle. But many states got a pass from the DNC on bending the rules in 2012 with President Obama running unopposed for renomination. 2016 may or may not be a different story.   


• On the Republican side, matters would be perhaps more interesting, but definitely clearer. Nevada would be subject to the super penalty -- a reduction to six delegates plus the three RNC members from the state -- in the RNC rules if it jumped into January unprovoked. If any state other than the carve-out states schedules a primary or caucuses before March 1, then the four carve-out states have a month prior to that contest in which to schedule their respective delegate selection events. Should New York, for instance, fail to shift its primary -- currently scheduled for February 2, 2016 -- back into compliance with the national party rules, then Iowa, New Hampshire, Nevada and South Carolina could schedule their contest as early as January 2 under the RNC rules. In that scenario, none of the carve-out states would be subject to penalty as long as none were scheduled prior to January 2. 


• Republicans, continued: If, however, Nevada moves into January unprovoked, then Silver state Republicans would be subject to the super penalty. The language of the RNC rule does not address the scenario under which a carve-out state takes the initiative to move to a position before February, pushing the other carve-out states forward into January. Would Nevada be subject to the penalties and not the other three? Or does Nevada take the other three down with them.


• If a rogue state is a western state (defined as Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, New Mexico, Oregon, Utah, Washington and/or Wyoming), then the Nevada secretary of state can move the primary (with the approval of the Legislative Commission) to as early as January 2 on the condition that the primary not fall on a Saturday, Sunday or legal holiday. It is worth noting that there is no required buffer between Nevada and any other state, western or otherwise. But if a western state attempts to jump ahead of Nevada, the secretary of state can push the primary up to January 2. This far into the active 2015 state legislative sessions, the only western state that comes anywhere close to threatening Nevada is Colorado. Based on existing state law in the Centennial state, the Colorado parties can opt to hold either first Tuesday in February or first Tuesday in March caucuses. Even if one of the Colorado parties chooses the earlier of the two dates, the January date called for in the Nevada bill would be safe. None of the other western states have or are looking at anything earlier than March 8. 


• Additionally, the legislation also requires the state parties to, in electing delegates, to have that process "reasonably reflect" the results of the presidential primary. There is no definition of "reasonably reflect" in the bill. But more importantly, this provision in the bill (and proposed law) would bind national convention delegates to candidates based on the presidential primary vote. That provision would potentially open up a fight between the state government and the state parties over which entity has the ability to dictate the rules of delegate selection in the state. A court battle is likely not the intention of this legislation. However, if the state parties want to retain a caucuses/convention system and have control over their delegate selection processes, they would have a leg to stand on in court. Such freedom of association disputes between state governments and state parties seldom favor governments. This part is going to be a non-starter with the parties in Nevada. 


• Both sponsors of the bill are Republicans. Republicans control both legislative chambers in Nevada and the governor's mansion. That may have an impact on how far this bill goes. It may also trigger infighting among majority Republicans to the extent there is sizable support for the legislation.


• Nevada last held a presidential primary in 1996.

This one is definitely one to watch. If Nevada jumps into January, it will not do so alone. This is not about being first. Nevada won't be. Iowa, New Hampshire would definitely and South Carolina Republicans might also jump ahead of a January 19 Nevada primary.

If South Carolina Republicans join the fray, the calendar may look something like:
Saturday, January 2: Iowa caucuses
Tuesday, January 5: New Hampshire primary
Saturday, January 16: South Carolina Republican primary
Tuesday, January 19: Nevada primary, North Carolina primary (???)

If South Carolina Republicans let Nevada jump ahead (which has not happened since both were added as carve-outs for the 2008 cycle), things may look like this:
Monday, January 4: Iowa caucuses
Tuesday, January 12: New Hampshire primary
Tuesday, January 19: Nevada primary

Super speculative, yes. Premature, sure. Yet, this is what the scenarios look like if this bill successfully navigates the legislature and is signed into law by the governor. Consider for a moment a primary calendar that again commences right after the new year begins, progresses through contests in three or four carve-out states, and then yields a solid six weeks of potentially no primaries or caucuses before the proposed SEC primary on March 1.

But why would Nevada -- already with a privileged position in the nomination process -- set off such a chain of events?

--
UPDATE 3/24/15: January primary provision to be amended out
UPDATE 3/29/15: Senate version of January bill introduced
UPDATE 4/2/15: Hearing for Senate bill strips out January primary provision
UPDATE 4/9/15: Third Tuesday in February primary bill passed Senate committee
UPDATE 4/10/15: Amended Assembly bill for February primary option clears committee

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Close of Utah Legislative Session Kills Effort to Move Back February Presidential Primary Option

It is pretty standard for there to be a flurry of activity on the last day of any state legislative session. Utah was not an exception to that rule as the legislature in the Beehive state adjourned on Thursday, March 12. One item not on the list of 2015 legislative accomplishments, though, was moving the February presidential primary option back into compliance with national party rules. HB 329 died in committee when the regular legislative session expired.

In response, it might be easy to suggest that passing legislation to move the February presidential primary option to March was moot anyway. For starters, the Utah Republican Party has already voted to switch from the primary to a state-party funded caucuses/convention system for 2016. Secondly, no appropriations proposals ever made it into any of the budget bills this session. No funding, no February primary. At best, then, passing HB 329 would have been a move aimed at the 2020 presidential election cycle. 2020 is a long way off, and Utah legislators will have other opportunities to revisit this after the caucuses experiment in 2016.

This development is not without significance, though. The February option is now off the table in Utah. And while Republicans are seemingly locked into likely March caucuses, the Utah Democratic Party process is still a bit up in the air. A bit. Democrats would have the option of using the late June primary as called for by Utah state law. However, that date is too late to comply with the Democratic National Committee rules on delegate selection.¹

That means that Utah Democrats will have to use the caucuses/convention system the party utilized in 2012 again in 2016 to comply with the delegate selection rules of the national party. Like Utah Republicans, Democrats in the Beehive state are very likely to hold a presidential preference vote in conjunction with March neighborhood caucus meetings. This is what Utah Democrats did in 2012.

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¹ Rule 11 sets a window of time in which non-carve out states can conduct delegate selection events. That window opens on the first Tuesday March and closes the second Tuesday in June. The regular Utah primary falls on the fourth Tuesday in June.

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Florida Senate Presidential Primary Bill Unanimously Clears Another Committee Hurdle

With the Florida House version of a presidential primary date clarifying bill now headed to the state Senate, the upper chamber version waved through a second committee. By a vote of 12-0, SB 7036 passed the state Senate Rules Committee and will now head to the Senate floor for consideration before the full body.

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FHQ does not really mean to harp on this, but again, this bill, like the House version, only simplifies and clarifies the date of the presidential preference primary in Florida. The date does not change. If the Republican Party of Florida maintains a variation of the winner-take-all allocation plan, the primary date would be on March 15 under the current law. If these bills now navigating the legislative process are passed and signed into law, the presidential primary would be on March 15. Same date.

Let's have a look at post-Rules Committee analysis of the bill for a moment. Here are two important sections that point out the problem.

Florida law, adopted in 2013, provides that the Presidential Preference Primary (“PPP”) for the major political parties takes place in a presidential election year on the earliest Tuesday that complies with the parties’ rules for delegate selection without incurring a penalty. Pursuant to this statutory formula, the 2016 Florida PPP is currently scheduled for March 1, 2016. [Emphasis FHQ's]

The earliest date "that complies with the [national] parties' rules for delegate selection without incurring a penalty" is not March 1 in Florida's case. It would be, but the RPOF seems intent on using some form of winner-take-all allocation in 2016. That means that a winner-take-all primary would "incur a penalty" before March 15.

There is nothing in that Florida statute that prevents Florida Republicans from utilizing a winner-take-all method. There is no specification as to the type of penalty that Florida cannot incur (i.e.: a timing/scheduling violation or an allocation violation). The current law simply calls for the Florida primary to occur on the earliest date that is not penalized.

The bill analysis even later on mentions the 50% penalty that would be levied against a state for holding anything other than a proportional primary or caucus before March 15.

Other rules governing delegate selection are set out by the national parties. For the 2016 cycle, the rules provide that only Iowa, New Hampshire, Nevada, and South Carolina may hold a primary or caucus March 1; other states may begin holding their contests on March 1, but if they go prior to March 15 the delegates must be apportioned proportionally. The first date for a “winner-take-all” primary under the current RNC rules is March 15, 2016. States (other than the four granted specific exemptions) conducting a “winner-take-all” primary between March 1 and March 14 will lose 50% of their delegates. [Emphasis FHQ's]

The intention in 2013 when the current law came on the books may not have been to cede the date-setting authority to the Republican Party of Florida, but that is essentially what has happened here. The law basically prevents Florida from being penalized by the national parties by shifting the date to whichever date is both earliest and not penalized. It just so happens that while the RNC allows variation in the method of delegate selection across states, it also has attempted to deter states from allocating those delegates in a winner-take-all fashion before March 15.

...with a penalty. A 50% penalty.

The Florida presidential primary cannot be on March 1 because Florida Republicans have a winner-take-all allocation plan in their bylaws. That type of allocation would incur a penalty before March 15. Thus the earliest date on which the presidential primary can occur -- in order to follow Florida law -- is March 15.

The date is the same, but the proposed change in language in the law would clarify and simplify the date of the primary.

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Presidential Primary Bill Unanimously Passes Florida House

The Florida state House passed HB 7035 on Wednesday afternoon, March 11 by a unanimous vote of 114-0.

The legislation would clarify but not change the date of the Florida presidential primary to the third Tuesday in March. Under current law, the Florida presidential primary would fall on the first date on the calendar on which the state would not face penalties from the national parties. That does not schedule the primary for the first Tuesday in March as is being reported. The current law actually ends up placing the decision-making power in the hands of the Republican Party of Florida. The state party's desire to retain some type of winner-take-all primary combined with the Republican National Committee rule requiring a proportional allocation in all contests before March 15 means the Florida presidential primary would be scheduled March 15.

Again, the legislation clarifies and simplifies the presidential preference primary law. It does not change the date. Sadly, it does not appear as if the Republican Party of Florida knows this. At least that is the way it reads in this Michael Auslen story from the Miami Herald:

If the primary date isn’t moved, Florida’s 2016 primary under current law would fall on March 1, early enough that the party said it would allocate Florida’s delegates proportionally. By moving the election to the third Tuesday, which is March 15, 2016, that means whoever wins the primary will take all the state’s delegates.

Wrong.

This has it backwards. The Republican Party of Florida needs no protection of its [desire to hold a] winner-take-all primary. It holds all the cards. Keep the winner-take-all rules in the state party bylaws and that sets the primary for March 15 to avoid a 50% penalty on any winner-take-all contest before March 15. The current law is set up in a way that prevents Florida from being penalized. It cannot be.

None of this makes the legislation currently making its way through both chambers of the Florida legislature meaningless. It just means that neither bill is changing the date of the presidential primary. They would clarify and simplify the primary law.

That clarity is a good thing from a state that has provided the opposite of that over the course of the last two presidential election cycles.

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Same Bill, Different Year: Massachusetts Legislation Would Consolidate Primaries in June

For at least the third straight cycle, Massachusetts state Rep. James Dwyer (D-30th, Woburn) has introduced legislation to consolidate the primaries in the Bay state in June. H.551 would shift the presidential primary from the first Tuesday in March to the first Tuesday after the first Monday in June. The primaries for other offices in the state would be moved from September to the June date as well under the provisions of the bill.

Versions of this same bill were introduced by Rep. Dwyer in both 2011 and 2013 and failed to pass in both instances. Like 2013, Dwyer has also introduced legislation that would leave the presidential primary where it is in March and shift the primaries for other offices up slightly into August (see H.550). That bill's forerunner met the same impasse that the consolidated primary bills have met in the past.

Astute readers of FHQ may point out that perhaps 2015 is different; that maybe a consolidated June primary stands a better chance of moving through the legislature in a scenario where there are proposed budget cutbacks looming over the 2016 presidential primary in Massachusetts. True, but those ominous signals were sent in 2011 as well and the presidential primary remained in March. Even when a Labor Day/Democratic National Convention/September primary conflict raised the consolidated primary concept anew, the idea still never came to fruition.

But perhaps a consolidated primary helps narrow the gap in the elections budget positions held by Governor Charlie Baker (R) and Secretary William Galvin (D). It would seem that way. However, since the fiscal year ends at the close of June in Massachusetts, the March presidential primary and September primary for other offices are split across two budget years. Bringing the September primaries up to June with the presidential primary does not cut the number of elections in the 2015-16 budget. It only alleviates financial pressure on the following fiscal year; a year that would then have one less election.

Still, the door may be more open in 2015 to a June consolidated 2016 Massachusetts primary than it has been in the past.

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An Update on the August Presidential Primary Bill in Montana

This kept getting pushed further and further back on FHQ's priority list:

An August presidential primary idea in Montana always seemed untenable anyway. It is difficult to hold a successful presidential primary -- even if consolidated with primaries for other offices -- after the national conventions have occurred.

Nonetheless, that was the proposal before the Montana House State Administration Committee toward the end of February: a package to facilitate an even year meeting of the legislature combined with a June to August move for the primary elections in the Treasure state.

A couple of significant things happened in the time since FHQ last looked at this bill. First, during the committee hearing on the legislation -- HB 571 -- there was already some doubt cast on the August primary part of the bill. At that time, the committee tabled the legislation for the time being. A few days later on Friday, February 27, the deadline for bills to be passed in one chamber and transmitted to the other came and went with no action on HB 571.

Given that combination of factors -- reservations to the August primary and the bill not being transmitted to the state Senate -- it would appear that the idea of moving the Montana presidential primary has been stopped dead in its tracks. One thing to watch in Montana is what the state parties do. Democrats in the state have tended to allocate their national convention delegates through the June primary, but Montana Republicans have often used the primary in only an advisory role in their caucuses/convention process. Treasure state Republicans held binding caucuses in February 2008. That was a break from the practice of an early June advisory primary/late June binding state convention the party has used throughout much of the post-reform era.

Caucuses may or may not be on the table for the state parties in Montana. That is something worth watching in the coming weeks.

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Companion Minnesota House Bill Would Also Reestablish Presidential Primary

Toward the end of February, legislation was introduced in the Minnesota state Senate to reestablish a presidential primary in the North Star state. At the time there was no companion bill to SF 1205 from the state House. That changed last week when Rep. Joe Hoppe (R-47B, Chaska) introduced HF 1567. The House version is identical to the Senate version.

That said, it seems far-fetched that either version will move through the legislature and be signed into law. Even before one considers the partisan divide in the Minnesota legislature -- Democrats control the Senate and Republicans have a majority in the House -- and the potential that has to derail a possible adoption of a primary, the bigger roadblock seems to be the state parties. The Minnesota Democratic-Farmer-Labor Party and the Minnesota Republican Party have already agreed to a date for 2016 caucuses as called for by state law. The parties would have to opt out of the March 1 caucuses they have agreed upon and opt into the proposed March 29 primary (if it is established).

The chairman of the Minnesota Republican Party has already thrown cold water on that idea. That may or may not deter further action on either of these bills in the legislature. Democrats in the state party and the legislature have been silent on the matter and hold veto power over the bill becoming law anyway by controlling the state Senate and the governor's mansion.

Minnesota last held a presidential primary in 1992.

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SEC Primary Bill Unanimously Passes Mississippi House, Heads Back to Senate

The Mississippi state House passed SB 2531 by a 117-0 vote on Tuesday, March 10. The bill that originated in the state Senate now heads back there after the state House made a small and likely uncontroversial amendment to the Senate-passed version.

The amendment struck a provision calling for the changes in the legislation to expire. The change would be permanent if the bill in its newly amended form passed the state Senate and is signed into law. The first time around, SB 2531 passed the Senate 40-10.

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Budget Concerns May Affect Massachusetts Presidential Primary, 2016 Edition

Does Massachusetts Secretary of State, William Galvin (D) make some variation of this claim every four years?

The budget proposal from Governor Charlie Baker's (R) office is out and the cutbacks to elections administration have the Bay state's chief elections official, Galvin, doing what he did in 2011. Namely, he is arguing that smaller appropriations for elections in Massachusetts puts the first Tuesday in March presidential primary called for in state law first in line at the chopping block. Furthermore, he has suggested -- just as he did four years ago before a similar legislative hearing -- that the parties in the state consider state party-funded caucuses in lieu of a state-funded presidential primary.

Is this a boy who cried wolf situation or one where the difference in party identification of the governor now (Republican) versus then (Democratic) might matter?

UPDATE: Quotes from Secretary Galvin:
Via the Boston Globe:  “This country is scheduled to elect a new president next year. Apparently the governor only wants 49 states to vote, he doesn’t want this one.”

Via WWLP: “I simply cannot run a credible election with those kind of numbers,” he said. 

Galvin acknowledged there are alternatives, such as a caucus or calling for parties to pay for the primary, as some states have done. 

“If this were to be the final appropriation, I would suggest to you we cannot afford to have a presidential primary next year on March 1,” Galvin said.

But as Joshua Miller at the Globe said:
Budget season is always filled with leaders of many parts of state government loudly proclaiming doom, part of a strategy to encourage lawmakers to increase their funding.

Boy who cried wolf?

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From Arkansas: A Separate Bill to Move All May Primaries to March

FHQ has held up Arkansas during this presidential election cycle as an example of a state facing a classic primary calendar dilemma. Arkansas has traditionally held a consolidated primary election in May. That includes a presidential primary and a congressional primary among others. The motivations for scheduling those elections are slightly different depending on the office. States, on the whole, tend to want earlier rather than later presidential primaries, but often also desire later rather than earlier primaries for the other offices. There is a competition among (some) states to position presidential primaries on the presidential primary calendar that does not exist for the primaries for other offices. Arkansas in not competing with New Hampshire to hold the first US senate primary, for instance.

Throughout the post-reform era, states have dealt with this issue differently. Some states -- mostly those with late primaries for other offices -- created separate and earlier presidential primaries right off the bat in 1972. They had to. A state like Florida could not hold a consolidated primary, including a presidential primary, in September because the state could not use the presidential primary to effectively allocated delegates to a national convention that would have already occurred during the summer months. To sequence it properly, then, Florida either had to abandon the late primary altogether and move the primary up to accommodate the presidential nomination process or create a separate presidential primary that could be scheduled earlier. Florida chose the latter. It incurred the start up costs for the separate presidential primary early and institutionalized the practice. In the process, Florida created a much more mobile presidential primary, one that could be moved around in an almost unfettered manner.

But contrast that scenario with that in a state like Arkansas. Following the reforms the Democratic National Committee instituted for the 1972 presidential election cycle, state government officials in Arkansas did not face the same issues that those in Florida did. Arkansas had a May primary for state and local offices. It was much easier to slap a presidential nomination line on the May primary ballot and have the presidential portion fit the sequence of the newly reformed presidential nomination process. The May primary preceded the national conventions.

Arkansas basically acted out of convenience and expediency. The Arkansas presidential primary and those in states like California and North Carolina that reacted to the reforms similarly became less adaptable in the process, however.  Whereas a state like Florida ripped the band-aid right off at the outset, states like Arkansas deferred on that decision. When the frontloading trend emerged, it was the group of states like Florida that initially drove it. The primaries in those states were more easily moved to different, earlier positions on the calendar.

States like Arkansas faced and still face in 2016 a different calculus. Decision makers in Arkansas have to decide whether to create and fund a separate and earlier presidential primary or to move everything up to an earlier date. Both have their own sets off costs that have more often than not deterred these late presidential primary states from budging from their May and June positions on the calendar. The separate election is expensive. But moving everything up creates longer general election campaigns for everyone from US Senate candidates to the state legislators --the ones actually making the decision to move -- themselves.

In the other two instances in which Arkansas has moved up -- 1988 and 2008 -- the decision was made to bite the bullet and fund a separate and earlier presidential primary election. And in both cases, the decision was made almost immediately after those elections to eliminate the separate presidential primary, thus moving it back to May.

And so it seems that Arkansas will attempt to repeat the first part of that practice for 2016. That is why FHQ the other day used Sen. Gary Stubblefield's SB 389 as a foil to the failed attempt in New Mexico to shift all of the primaries in the Land of Enchantment from June to March. Whereas New Mexico was making some effort to shift a consolidated primary up to March, Arkansas is attempting again to create a separate and earlier presidential primary.

However, it now looks as if the other option -- move a consolidated primary to March -- is now also on the table in the Arkansas state Senate. The same sponsor as the separate presidential primary bill, Sen. Gary Stubblefield (R-6th, Branch), has now also introduced legislation to move all of the May primaries in Arkansas to the first Tuesday in March. It is unclear whether the bill -- SB 765 -- makes the initial legislation moot, but there are both House and Senate co-sponsors signed onto this new bill. The initial separate presidential primary bill still lists only Stubblefield and continues to be deferred in the State Agencies and Governmental Affairs Committee.

There may be a preference among legislators about how the move takes place (which bill to pass), but the end goal is the same: move the Arkansas primary up to join with the other SEC primary states. And Arkansas continues to be a great illustration of the different decision-making calculus that actors in late and consolidated presidential primary states have as compared to other states.

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