Monday, October 7, 2019

For 2020, Colorado Republican Delegate Allocation Rules Seemingly at Odds with RNC Rules

Back in the lead up to the 2012 presidential primary season, the Republican National Committee (RNC) instituted a new set of rules governing the presidential nomination process. The changes for that cycle put in place a later start time to primary season (reserving February for the four carve-out state contests), but also added a new wrinkle to how state parties could allocate delegates based on the results a primary or caucus.

The latter of those national party-level restrictions on the activities of state parties required that states with primaries and caucuses in or before March allocate delegates in a proportional manner. Now, in the time since that point, the RNC has redefined what proportional means and decreased the size of the window of the calendar in which winner-take-all rules are prohibited. But that proportionality window still exists. State parties with contests before March 15 have to set in place rules that proportionally allocate national convention delegates.

Yes, that is a more restrictive national party mandate than has historically been the case in the Republican process. However, state parties are not without some latitude. They have some discretion. For one, state parties can add a delegate qualifying threshold of up to 20 percent which can greatly restrict the number of candidates who receive delegates (especially in a cycle in which an incumbent president is seeking renomination).

State parties also have the option of splitting up the allocation of different types of delegates. At-large delegate allocation can be tethered to statewide result while congressional district delegates can be awarded to candidates based on their performance in those subunits within a given state.

Finally, even in the proportionality window that opens the presidential primary calendar under the RNC rules, state parties have the option of adding a winner-take-all trigger for candidates who win a majority or more of the vote statewide. Massachusetts Republicans, for example, added a winner-take-all trigger to their delegate selection rules for their Super Tuesday primary in 2020. And that is not uncommon for states with contests in the proportionality window. Most, in fact, have winner-take-all triggers in their plans.

In other words, state parties have options to tilt the allocation in a winner-take-all direction on the early calendar and still remain in compliance with RNC rules.

Perhaps that is an overwrought preface, but it is laid out in advance of a possible rules violation by one state party ahead of the 2020 cycle. Last week -- on or before October 1 -- state Republican parties were to have finalized and submitted to the RNC their delegate selection plans for 2020. And the bylaws of the Colorado Republican Party appear to violate the proportionality mandate from the RNC for the party's 2020 presidential primary (newly reestablished for the 2020 cycle).

Much of this potential conflict can be traced to the late March 2019 state central committee meeting of the Colorado Republican Party. The state party chair election dominated the headlines coming out of that meeting, but that was not the only piece of business on the committee's agenda that weekend. They also considered changes to the 2020 delegate selection rules.

In light of the new presidential primary in the Centennial state, a proposal came before the committee to streamline the delegate selection process. And it should be noted that Colorado Republicans are constrained not only by national party rules but state law as well. RNC rules require that delegate allocation be based on the earliest statewide contest and the new Colorado law concerning the presidential primary purposefully schedule caucuses in the state for after the primary (the Saturday after). The caucuses (and any attendant presidential preference vote) would follow the vote in the primary. The Colorado Republican Party, then, is basically stuck using the primary for allocating delegates.

Part of the rules changes on delegate allocation at the state central committee meeting in March addressed that. Struck from the rules at the time was a contingency for allocation depending upon whether there was a primary or caucus. Now that section of the bylaws simply refers to the results of the Colorado Presidential Primary.

Also struck from the old rules, however, was guidance on who -- which candidates -- would qualify for delegates in the event that Colorado held a presidential primary. The old rules, and this other section that was struck from them, allocated delegates to candidates who received 15 percent or more of the vote in the presidential primary. Again, that is consistent with RNC proportionality requirements for states with primaries or caucuses before March 15 and was part of the 2016 rules Colorado Republicans used (but there was no presidential primary).

But that guidance is now gone, and in its place is this language on delegate allocation and binding:
a. On the first nominating ballot for President, in accordance with State statute all members of the State’s delegation shall be bound to vote for the Presidential candidate who received the highest number of votes in the Colorado Presidential Primary, and the CRC Chairman acting as chair of the delegation, or his designee, shall announce that the entire vote of the State’s delegation is for that candidate. If that Presidential candidate releases his delegates through public declaration or written notification, the candidate's name is not placed in nomination, or the candidate does not otherwise qualify for nomination under the rules of the Republican National Convention, the individual National Delegates and National Alternate Delegates previously pledged are released to cast their ballots as each may choose. b. On any succeeding ballot for President and on all ballots for other purposes the individual delegates are released to cast their ballots as each may choose.
[Emphasis added by FHQ]

That appears to be a violation of RNC rules restricting delegate allocation in early calendar contests.

However, there are a couple of caveats.

First, the next rule in the sequence after those listed above does give the state central committee the ability create rules governing the selection of delegates that are consistent with both the bylaws and RNC rules on or before October 1 in the year prior to a presidential election. The above winner-take-all provision, then, is just a baseline. But one that conflicts with national party rules given the position of the Colorado primary on the calendar.

In addition, the process by which delegates are selected requires them to align (or remain unpledged) with a candidate. The RNC legal counsel interpretation of the RNC rules in 2016 was that that alignment -- pledging to a candidate upon filing to be a delegate candidate -- bound that delegate candidate to their presidential preference. And that Colorado selection procedure is still in rules for 2020. Whether the RNC legal counsel still interprets the RNC rules the same in 2020 as was the case in 2016 remains to be seen.

Regardless, any delegates selected at the state convention or in congressional district conventions aligned with candidates other than the winner of the presidential primary in Colorado would likely be bound to those candidates at the national convention. But that would only be the case if that candidate was still in the race and had his or her name placed in nomination at the convention. That, too, seems a stretch in a year in which an incumbent Republican president (still popular within the party) is up for renomination. But any such delegates would become free agents and could support another candidate.

Finally, the secretary of state in Colorado also has the option of canceling the presidential primary if there is no competition. That has to be done by January 3, 2020. But the bar for ballot access to the Colorado primary is quite low for prospective candidates: $500 fee or 500 signatures.

Colorado, then, will likely have a Republican presidential primary on March 3, and because of those caveats above, likely will not allocate delegates in a winner-take-all manner.

...unless the party has added a winner-take-all trigger as other states have done.

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