Saturday, February 28, 2009

The Supreme Court Weighing in on Frontloading?

No, this isn't happening (...yet), but I was asked about the possibility of the Supreme Court allowing the parties' wishes to take precedence over the actions of state governments setting a presidential primary date not in accordance with party rules. [This question arose over at DemConWatch from a discussion over my 2012 Primary Calendar Projection.]

The parties do have the right to set the rules of their nominations. Last year when the Clinton camp was up in arms over the "at-large" casino caucuses in Nevada -- the ones they thought would give Obama a distinct and unfair advantage -- the courts refused to hear the case, falling back on the precedent set in other cases that the party dictates who its nominee will be.

And this has applications in other areas as well. The main conflict has been over the rules concerning how open a primary is. On the question of who can participate in a party's nomination process, the Supreme Court has said that the parties get to decide. In other words, if there is a conflict between state law and the party's wishes, the party gets its way.

This has worked in both directions: parties not wanting closed primaries and parties not wanting open primaries. The case that started all of this was the Tashjian case. Basically, a thirty year old Connecticut law requiring closed primaries came under fire when the state's Republican Party wanted to open their process up to independents as well. The result: The party's right to free association was upheld and independents were allowed to participate in the primary.

On the flip side, California Democratic Party v. Jones established that if a party didn't accept a state-mandated blanket primary as the primary modus operandi, the requirement had to be scrapped. And as the two major parties (and others) didn't accept the California blanket primary, it hit the road.

So what does all this have to do with primary timing? [Yeah, I go on a bit, don't I?] Well, you'd think that if a state law requiring a state to hold its primary on a date the parties didn't like, the parties would get their way. It seems a reasonable extension of the legal doctrine established above, right?

If the DNC says, "Massachusetts, you're going on the third week in May," and the Bay state government doesn't like it, then too bad. Well, what about the RNC? Let's say the GOP says that Massachusetts is fine where it is during the first week in February. Fine, the GOP can go in February and the Democrats can go in May.

Here's the rub, though, and this is where the timing conflict breaks with the opened/closed issue. The state picks up the tab for conducting the primary election. Splitting the two parties up like that doubles the cost (at least theoretically). That places an undue financial burden on the state all of a sudden.

There are a couple of questions that emerge here:

1) What about a state like Montana, where in 2008, the GOP went on February 5 and the Democrats held their delegate selection on June 3? Well, in that case the Montana GOP voluntarily opted out of the state funding to fund its own caucus. Nebraska did the same thing on the Democratic side. And Idaho Democrats have opted out of the state-funded primary at the end of May for years.

2) This one is more important. What if the GOP went along with the plan. Take the Massachusetts example. Let's say that both the DNC and RNC agree that the Massachusetts primary should be in May. Well, now there's a case; one the parties can win because the financial burden is now gone. Massachusetts would likely be required by the courts to shift its primary back a few months since that's what both parties wanted.

But for the Supreme Court to weigh in on the side of the parties on this issue, it would likely require a coordinated calendar assembled in a bipartisan fashion. There are certainly efforts being made on this front, but those competing interests -- that zero sum game where one tiny shift could fundamentally shift the balance in an election toward one party -- will stand in the way of that vision coming to fruition.

Recent Posts:
1996 Presidential Primary Calendar

Like a Kid in a Candy Store: A 2012 GOP Presidential Preference Poll

2012 Primary Reform: Previous General Election Margin as a Means of Setting the Calendar

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