Friday, March 14, 2014

Utah's Stake on the First in the Nation Presidential Primary a Casualty on Final Legislative Day

Memories will fade [quickly] and all that most will remember is that the efforts in Utah these past few weeks to challenge New Hampshire and Iowa at the head of the presidential primary calendar died on the last day of the 2014 legislative session. The record, however, indicates a richer story.

Again, as FHQ described earlier, the idea in Utah was novel. The state would not only have granted the lieutenant governor the authority to set the date of the primary -- assuming legislative funding -- but it would have required them to set the primary before Iowa, New Hampshire or any other state. The first part isn't unique. New Hampshire's secretary of state has had that ability since 1976, the Georgia General Assembly granted similar power to its secretary of state in 2011 and Arizona gives the governor the ability to set the primary for a date earlier than called for by state law. The intent in each is to empower an individual with the task rather than a partisan body susceptible to gridlock, and thus, slow to react. Only New Hampshire state law requires that individual -- the secretary of state -- with ensuring that the contest is first in the nation. But the Utah bill mimicked that provision, requiring also that the lieutenant governor set the presidential primary in the Beehive state first on the calendar.

The Utah bill, then, addressed the pace of response problem that most states face (and New Hampshire does not). Additionally however, the legislation also struck at the other advantage New Hampshire has in the process: the pace of implementation. The rationale of the secretary of state office in the Granite state -- or part of it anyway -- has always been that other states may challenge or vie for first in the nation status, but we can wait them out with an ability to deploy the election administrative troops in a shorter period of time than anyone else.

Utah's innovation? By shifting the voting online, there would be no concern about New Hampshire waiting the state out. Utah could logistically respond/adapt accordingly and quickly.1

That vision passed the Utah House on Monday and was expedited along with a raft of other legislation in the state Senate on Wednesday. But the Thursday final session day did not see the bill that would threaten the carve-out states, not to mention defy the national party rules, simply die as the clock ran out.

No, instead, the Senate floor sponsor, Senator Curtis Bramble (R-16th, Utah, Wasatch), provided yet another rather forward-thinking twist. In this case, forward thinking meant anticipatory maneuver with the thought of future showdowns with New Hampshire (a la Nevada Republicans in 2011) or the national committee of either party. The proposed, Senate-amended bill sought to provide Utah in that scenario with some additional leverage. It called for the same actions -- giving date-setting authority to the lieutenant governor and shifting to online voting -- but added an "unless" rider. In other words, Utah would be first unless certain conditions were met. Those conditions were that Utah would be or would challenge for first unless at least two other western states joined Utah in the type of Western States Presidential Primary called for in state law (but which has never fully come to fruition as intended).

How is that leverage?

Assuming such a bill had passed and was signed into law, Utah first could threaten to or maybe even actually set a date in, say, 2015 in order to force New Hampshire's and the national parties' hands. The threat likely would have been enough to get the national parties involved in if not pressuring other western states, then at least inquiring about their openness to moving their contests to a [less problematic/early or compliant] date concurrent with the Utah primary.

The bottom line intent there is simple: Utah wants to be first to gain attention. If we can't be first, then we can still get attention so long as there is at least subregional primary of neighboring western states along with Arizona, Colorado and/or Nevada, for instance. One of the unintended consequences of these types of attempted negotiations is that, legislatively, states rarely provide themselves with the options necessary to get even some of what they want if the first option -- going first on the calendar in this case -- falls through. Often, states are forced to go the all-or-nothing route and can end up worse off (especially if a legislature is still required to set the date but is not in session).

This was, then, a new wrinkle to the proceedings. As the day went on yesterday, though, and time ran out on a Utah state legislature with a full agenda, the typical sine die day negotiations to get a number of things passed (including the primary bill) commenced. This horse trading produced a last ditch Senate proposal that included concessions of the most controversial portion of bill; the requirement that Utah be first in the nation. Left in the bill were the provisions shifting the date-setting authority from the legislature to the lieutenant governor and for online voting. Also gone was the "unless" rider to coax a real Western State Presidential Primary out of the process. While the language was less provocative, the lieutenant governor still would have had the ability to threaten the front of the calendar. The office just would not have had the requirement to do so under state law.

Yet, in the end, even that did not pass muster in the behind the scenes wrangling in the state Senate. The bill never came up for a vote, time ran out and it was returned to the House; dead.

There a few notes that should be made here before closing.

  1. Just because this issue is dead in 2014 does not mean that we will not see this return in Utah during the 2015 state legislative session.
  2. Relatedly, these sorts of (provocative) ideas are now out on the open market. Other states may consider them and strategically augment them in 2015.
  3. This notion of consideration and strategic negotiation sounds a lot like the sort of bartering that Governor Jan Brewer (R-AZ) did with the Arizona primary in 2011. Now, she did not ultimately threaten Iowa and New Hampshire, but she did win a Republican presidential debate out of it. ...all while still maintaining a non-compliant primary. Whether this sort of action will become the norm for aspiring rogue states remains to be seen. But Utah is evidence that the idea is spreading, even if on a limited basis for now.

1 Now, the question still remains whether candidates and campaigns would throw the known of New Hampshire by the wayside for an unknown process with unknown consequences in Utah. FHQ has its doubts.

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