Wednesday, February 10, 2016

The New Hampshire Delegate Count and Beyond -- Automatic Delegates

There was some confusion throughout New Hampshire primary day about just how many of the Republican delegates were on the line in the Granite state. If one looks at New Hampshire state law, it sets the basic terms of delegate allocation in the state. The shorthand of this is that the secretary of state allocates delegates to the national convention to candidates who receive more than 10 percent of the statewide vote in the New Hampshire primary.

That is just "delegates", not at-large delegates or district delegates. Just delegates.

However, the New Hampshire Republican Party has traditionally pooled its at-large and district delegates and allocated them proportionally based on the statewide result. According to party bylaws (see Article II, Section 1 and Article III), though, the three party or automatic delegates have traditionally been unbound. The state party chair, the national committeeman and national committeewoman are prohibited from supporting any candidates. The party rules keep them "neutral".

That would seem to indicate that only 20 of the 23 New Hampshire delegates were at stake in Tuesday's primary. That was how FHQ interpreted the rules and we were not alone. That has been the way that delegates have been allocated in New Hampshire in the Republican contest.1

But this interpretation ignores changes made to the national party delegate selection rules for 2016. New to the Rules of the Republican Party for this cycle is a requirement binding delegates to candidates based on the results of statewide contests like the New Hampshire primary and the Iowa caucuses a week ago.

That rule, Rule 16(a)(1), states:
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. [Emphasis FHQ's]
Like the New Hampshire state law, the terms of the Republican Party rule are ambiguous. It just says that a state's delegates must be allocated proportionally or winner-take-all based on primary or caucus results. There is no distinction between types of delegates. It is just delegates or in this case a state's delegation.

That fairly inclusive-seeming definition leaves open to interpretation just how state parties like New Hampshire's or Virginia's deal with the potential ambiguity in the national party rules as compared to state party bylaws that explicitly keep the party/automatic delegates neutral or unbound. Typically, the RNC has left much of the minutiae of delegate selection up to the states to decide.

Yet, in December, FHQ was told that there were no unbound delegates at the outset of the Republican nomination process. There can be unbound delegates, but only if they are released by candidates who have withdrawn from the race. That meant that in the 40 percent of states where state party rules left the automatic delegates unbound there was something of a conflict. That is what prompted us to begin adding riders like the following to the FHQ explainers on delegate allocation at the state level. Here's an example from the Virginia post:
The automatic delegates -- the state party chair, national committeeman and national committeewoman -- from Virginia are explicitly unbound according to the September resolutions adopted by the state party. That has been the case in the past, but FHQ was informed in recent conversations with the Republican National Committee that Rule 16(a)(1) binds all delegates from a delegation. The only exception is for delegates elected directly (on the ballot). That does not include party/automatic delegates. How those delegates are allocated/bound when the state rules are not clear on their allocation is a bit of an unknown and something of a wildcard.
The Republican National Committee has a more rigid interpretation of Rule 16(a)(1) and its effect on the binding of the three party delegates when such a binding process is not specified on the state level. In a January 29 memo to RNC members, the RNC general counsel's office, citing both Rule 16(a)(1) and the November call to the 2016 convention, detailed the binding of party delegates in those states. In a state where the allocation of party delegates is not specified, those delegates are to be treated as at-large delegates and allocated in a manner consistent with the allocation of that subset of delegates.

In New Hampshire, then, the party delegates are lumped in with the full allotment of delegates and allocated proportionally. The same would be true in Virginia (rendering Morton Blackwell's endorsement of Ted Cruz somewhat moot). A state like Tennessee, where only the at-large delegates are proportionally allocated based on the statewide results (and the district level delegates based on the congressional district results), those party delegates would treated as another three at-large delegates.

This is bigger than New Hampshire, then. Other state are affected as well, and FHQ's state-level allocation primers will be updated to reflect the clarified interpretation of the rules.

1 Of course, it has been since 2000 that that traditional method had been used. Penalties imposed by the national party for going too early in the last two competitive cycles -- 2008 and 2012 -- meant that New Hampshire lost its automatic delegates. New Hampshire is rules compliant for 2016 and they have their automatic delegates.

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