Friday, November 4, 2022

Democrats' 2024 Calendar Shake Up Hinges on Midterms

Of all of the things that are top of mind for those following the 2022 midterm elections set to conclude on Tuesday, November 8 -- much less those who have and will vote -- the 2024 presidential primary calendar is likely not one of them. Sure, the 2024 invisible primary has been going on since at least November 2020, but that does not mean that anyone earnestly wants to dig into the next election before the current one is even over. 

However, like a great many things, the 2024 presidential primary calendar will be affected by the outcomes of the midterm elections taking place across the United States. In a typical cycle, that would mean that gubernatorial and state legislative elections may impact where any given state may end up on subsequent presidential primary calendars. But this is not a typical cycle. In a typical cycle, FHQ would wait for the dust to settle on those state legislative elections, see where the out-party gained control and begin assessing where primary date changes are more likely. 

But again, unlike, say, the 2010 or 2014 or 2018 midterms, 2022 is not typical with respect to the formation and completion of the next presidential primary calendar. Yes, this midterm will impact state legislative control, and in turn, affect which states may or may not move as new sessions begin in 2023. But there is an added wrinkle in 2022 that has not been there in past cycles during the post-reform era. Unlike the half century of presidential nomination cycles before it, the 2024 cycle will push through the midterms without both major parties having completed their guidance for states to finalize their delegate selection processes. 

And the place where that guidance is lacking at the moment is on the Democratic side. The Republican National Committee long ago signaled that it would make no significant changes to its rules for 2024 and subsequently carried the bulk of their rules over to the current cycle when the September 30 (2022) deadline for making changes to the national rules came and went with little fanfare. And likewise, the Democratic National Committee -- through its Rules and Bylaws Committee (DNCRBC -- completed the bulk of its work on the party's 2024 nomination rules.

Yet, the DNCRBC punted on one facet of those rules, a part that has typically been in place before the midterms: the guidelines for which states are granted exemptions in order to go early on the presidential primary calendar.  Now, in typical cycles, the party would entertain discussions of changes to the early states, but would in the face of institutional challenges stick with Iowa and New Hampshire at the front of the queue. In some cycles those discussions are more rigorous than others, but the Iowa/New Hampshire question always comes up. 

The cycles that stand in contrast to that pattern are 2008 and 2024. During the aftermath of the 2004 election, the Price Commission took up the question of Iowa's and New Hampshire's positioning in the Democratic process, ultimately opting to recommend keeping the traditionally early pair among the early states but adding to the early window line up. The DNCRBC acting on those recommendations, then, heard pitches from a handful of states to fill those additional slots alongside Iowa and New Hampshire. Nevada and South Carolina emerged as those two states. 

And there was wisdom to the selection of those two. South Carolina was already positioned as an early state in the Republican process, the first-in-the-South contest that occurred third in the order on the heels of Iowa and New Hampshire. Nevada, on the other hand, was not a fixture in the early Republican calendar, but was a caucus state where the scheduling of the caucuses was not determined by state law. In other words, the two state parties did not have to conduct their caucuses on the same date. Even though Nevada Republicans ultimately forced the issue and joined the early calendar Republican states for 2008 and became normalized thereafter, DNC rules changes did not directly impact that outcome (not in the way that it would if the caucus dates for both parties were set by state law and on the same date).

Now fast forward to the 2024 cycle. Again, the Iowa and New Hampshire question was raised on the Democratic side. The same undercurrent was there -- questioning the wisdom in the same two states leading off the process and what impact that would have on the identity of the eventual nominee. But those typical questions were raised in the context of an error-laden 2020 caucus process in the Hawkeye state, a shrinking of the number of and preference for caucuses in the Democratic process and in the wake of the national conversation stemming from the murder of George Floyd. Basically...
  1. Operational: If Iowa Democrats cannot even conduct seamless caucuses, then why should they continue to be first on the primary calendar? AND
  2. Representational: If the Democratic coalition is as diverse as it is, then why are two overwhelmingly white states kicking off the process to determine the party's presidential nominee?
In that context, the DNCRBC -- and not a separate commission as in 2005-06 -- began to tackle the Iowa/New Hampshire question for the 2024 cycle. That the DNCRNC and not a separate commission led that charge was not the only difference between the 2024 cycle and its forebear from 2008. Unlike during the 2008 cycle, the DNCRBC did not grant a pass to Iowa and New Hampshire and entertain pitches from other would-be early states. Instead, the committee invited Iowa, New Hampshire, Nevada, South Carolina and any other willing state party to make their case for an early window exemption. Those 20 states would vie for up to five exempt slots on the early calendar with no guarantees for any of the four traditional carve-out states. 

And the handicapping had gone on for months leading up to the August window in which Democrats tend to finalize their delegate selection rules for the upcoming cycle. Obituaries were written for the Iowa caucuses, and possible replacements and/or early state additions -- Georgia, Michigan, Minnesota and Nevada -- emerged. But the same institutional questions that have dogged past efforts to rearrange the calendar came to the fore in the summer of 2022. That left the DNCRBC to finalize the 2024 rules the panel could finish and leave the calendar questions until after the midterms

But why? 

On the one hand, delaying the decision on which states receive early window exemptions cuts into planning time those states will need to prepare not only for 2024 primaries and caucuses but for submission of draft plans to the DNCRBC by next spring. Yes, it helps some that the DNC finalized all of its other rules, minimizing the uncertainty to the dates of contests and potentially moving them. 

But on the other hand, the DNCRBC also wants to finalize a set of rules that stand some chance to be fully implemented and implemented as seamlessly as possible while also reducing the potential for snags. And here, FHQ means institutional problems when it uses the word snags. 

Now, to this point I have vaguely used the term institutional roadblocks, but specifically, the DNCRBC wants to get through the midterms in order to have some certainty as to exactly who their state-level partners will be in bringing any idealized version of a new early calendar line up to fruition. 

The political climate in 2022 favors the Republican Party based on the typical fundamentals of presidential approval and various measures of the economy. And that, in turn, means that some of those partners may be Republicans who are unwilling or unable to aid Democrats in their pursuit of an altered early calendar. 

Take Michigan. Yes, newly commission-drawn state legislative lines may give Democrats a fighting chance to win one or both chambers in the legislature in the Great Lakes state. But the climate may completely or to some degree negate any gains state Democrats would have taken from redistricting. But even if Republicans retain control of the legislature, there may be some who are willing jump at the chance of holding an earlier primary. In theory, yes, but in practice, those Republican state legislators in control would run into RNC rules setting Iowa, New Hampshire, South Carolina and Nevada first and a super penalty that would strip the Michigan delegation of more than three-quarters of its delegates. Perhaps those legislators gamble or perhaps they opt to exploit a loophole in RNC rules. It would not get Michigan to first, replacing Iowa, but it could get the state into the early calendar mix. 

Or how about Minnesota? In the Land of 10,000 Lakes the bar is set a bit differently. The state parties can bypass the legislature under state law. That circumvents the Michigan problem in a way. The date of the Minnesota primary is set for the first Tuesday in March, but the date can be changed if the two state parties can agree on an alternative. That alternative could be first, replacing neighboring Iowa atop the calendar. But again, the same super penalty that would stand in the way of a change in Michigan would also be a roadblock to Minnesota becoming an early state. And the Republican state party chair would have a slightly more difficult time in pleading ignorance of the RNC rules considering state party chairs are RNC members. 

Maybe Georgia could easily fit into one of those early slots? The process for setting the date of the presidential primary is different than the two states described immediately above. But again, the reliability of partners matters. The secretary of state and not the state legislature schedules the presidential primary in the Peach state. 

If Democrat, Bee Nguyen upends incumbent Brad Raffensperger in the Georgia secretary of state race, then national Democrats may have a path to adding the Peach state to the early calendar. Of course, adding a state neighboring another early state, South Carolina, would be unconventional. Georgia is a more competitive state in general elections than South Carolina, but the Palmetto state was instrumental to President Biden's road to the 2020 Democratic nomination and some of his South Carolina surrogates may take umbrage to the first-in-the-South state either sharing the spotlight in the early window or being outright replaced. 

And those are roadblocks with a Democrat as Georgia secretary of state. With Secretary Raffensperger back in Atlanta enforcing state election law, he and the Georgia Republican Party would run into the very same RNC rules that Republican actors in Michigan and Minnesota would face. In other words, there is not necessarily a reliable partner for national Democrats to lean on in Georgia either. 

How about Nevada? The Silver state is already an early state and switched from a caucus to a primary since 2020. Moving Nevada would not necessarily change the early states, but could shake up the order of those early states. It is possible. But again, even that hinges on the midterms. Nevada is currently a state where Democrats have unified control of state government. Should the party retain control of the governor's mansion and the state legislature, then the same Democrats that pushed for the switch to a primary after 2020 and scheduled it for the Tuesday in February immediately after where Iowa has ended up on the calendar in the last two cycles, may make changes to suit the DNCRBC directives (if necessary). 

But Nevada is competitive and while that is an attractive quality to the DNC in terms of the states to slot into the early window, it may also mean that Republicans sweeping to victory in the midterms could spoil any of those plans. Silver state Republicans were not exactly supportive of the switch to a primary and the early February date could run afoul of RNC rules by pushing Iowa and New Hampshire into January. Republicans in power in Nevada after 2022 may reschedule the newly established presidential primary or they could revert the state to a caucus system and leave Democrats there and nationally in the lurch. Regardless, Republicans winning control in Nevada in any way shape or form means that national Democrats will not have partners that could assist them arriving at a calendar that best or better meets the goals set out by the DNCRBC.

But that is how this process goes. If the calendar was so easy to change then it maybe would have been over the course of the last half century. It is not for lack of trying. It is a function of the multitude of roadblocks that stand in the way of change. Big changes to the nomination system come when 1) both parties can agree on them (to some extent) or 2) when one party controls the vast majority of state governments across the country. Look at the 2008 calendar changes as an example of the former and the McGovern-Fraser reforms that ushered in the current system at a time when Democrats lost the presidency but controlled vast swaths of the country on the state level as the major example of the latter.

Look, FHQ is not saying that the status quo will carry over to 2024. It will on the Republican side. But the Democrats' chances of altering the beginning of their calendar depend almost entirely on what happens in the midterm elections. If Republicans sweep the states above, then look for the front of the 2024 primary calendar to look a lot like 2020. Any deviation from that scenario may open the door to some type of change even if it is not the idealized one envisioned by the Democratic Party coalition. Otherwise, the party may get a change, but it may amount to a fifth state being added to the end of the early window in a creative way that state Republicans can stomach (ie: exploiting loopholes in Republican rules).


Wednesday, September 7, 2022

2024 Democratic Party Rules Changes: May versus Shall in Rule 21

It has been a month since the DNC Rules and Bylaws Committee (DNCRBC) met in Washington and adopted the bulk of its rules package to govern the 2024 presidential nomination process. Heading into the confab, the panel undercut itself to some degree by announcing that it would punt until after the midterms the decision on its most-anticipated item on the 2024 rules docket: the primary calendar. But that decision -- to supplant Iowa, New Hampshire (or any of the first four carve-out states) or not in the early window -- hinges on factors mostly outside of the committee's power. 

Yes, the loss of that time -- between now and the midterms and/or when the decision is ultimately made -- hurts state-level preparation of delegate selection plans. [State parties will still have to submit those to the DNCRBC for review by the beginning part of May 2023.] But knowing who controls state legislatures in some of the prospective target replacement states, for example, has significant bearing on just how feasible any calendar change may be for the 2024 cycle. And feasibility matters. If Michigan Republicans, for example, retain control the state legislature in the Great Lakes state after November, then the Democrats' prospects of substituting the Michigan primary in for the Iowa caucuses at the front of the Democratic presidential primary calendar order for 2024 greatly dim. Republicans there very simply have no incentive to cross RNC rules to help Democrats in the state jump Iowa in the queue. National Republicans have held strong on an Iowa, New Hampshire, South Carolina and Nevada order again for 2024 (and have until the end of September to make calendar changes the party has shown no signs of changing). That means that Michigan Republicans would have to swallow the RNC super penalty to help Great Lakes state Democrats move into an advantageous calendar position. 

And that is very unlikely to happen. 

And so the DNCRBC waits. It waits to see if control of the legislature in Michigan or elsewhere changes in November thus greasing the wheels on a rules change that would reshape the early calendar in a meaningful way for the first time since the 2008 cycle

But just because the calendar decision was shunted until December does not mean that the DNCRBC sat idly by in August. While some (most?) may have been disappointed that no decision was made on the 2024 calendar, it did not mean that the committee made, as some said, only "minor" changes to the 2024 rules.

Well, in truth, what may superficially appear to be a minor change may actually carry more significant weight. Take, for instance, one of several alterations made to Rule 21, the section that sets out penalties for rules violations. Starting with the 2008 cycle, Rule 21.C.1.b has read...
A presidential candidate who campaigns in a state where the State Party is in violation of the timing provisions of these rules, or where a primary or caucus is set by a state’s government on a date that violates the timing provisions of these rules, may not receive pledged delegates or delegate votes from that state.
That rule, as written, has given the DNCRBC for four cycles now the latitude to strip any candidate who campaigns in a state in violation of the rules on timing -- when a primary or caucus can be held -- of any delegates won in such a state. But that threat has not proven to be all that much of a deterrent (in an admittedly small number of actionable instances over time).

One has to work backwards to see the logic in this. A candidate may or may not be deterred from campaigning in a rogue state if there is only a threat that delegates won there may be taken away by the national party. And if candidates may or may not be discouraged from campaigning in a rogue state, then there may be enough uncertainty at the state governmental level for decision makers to roll the dice on a noncompliant calendar position. "Hey," the thinking may go, "if candidates see no real disincentive to campaign, then they may come here to our early (but in the eyes of the national party, noncompliant) state to contest our primary or caucus." There is, in other words, just enough downstream weakness in the rules regime to topple the whole thing. 

Moreover, this is absolutely the sort of issue that the DNCRBC would seemingly have to resolve in order to tighten its system in the event that it makes an attempt at a fundamental shift in the early calendar lineup in the coming months. If the party is intent on replacing Iowa at the front of queue, then the DNC must have an answer to "Yeah, but what happens when Iowa goes first anyway and candidates campaign there as normal?

What would they do? 

Well, in this case, the DNCRBC has gone as far as the Democratic Party has ever gone toward preventing any state -- Iowa or otherwise -- from tipping over the first domino and setting off a cascade of rogue decision making at the campaign level and among states. The first component in that effort was replacing the may cited in Rule 21 above with shall. The national party raised the ante, upping the language from "We may strip you of your delegates." to "We will strip you of all of your delegates."

Now sure, the obvious response here is to question the changing of one word. One word?! But this particular one word change is always important when it comes to delegate selection rules. Republicans had a similar issue after the 2012 convention where the shall associated with the party's proportionality requirement became a may. The result was that the requirement to proportionally allocate delegates during the early part of the primary calendar embedded in Rule 16(C) became a suggestion. That would have had a significant impact on state-level decision making about delegate allocation ahead of 2016 as well as the resulting candidate strategy concerning how to approach particular states. But that substitute may was replaced with shall in 2014 when the rules that governed the 2016 Republican presidential nomination process were finalized. 

In the Democrats' case for 2024, the insertion of shall in Rule 21.C.1.b means that instead of the national party retaining merely the latitude to take away the delegates won by a candidate who has campaigned in a noncompliant state, such a candidate would lose them upon violation. 

Additionally, the DNCRBC buttressed that penalty with the expansion of the definition of "campaigning" included in the rule. That definition was already robust, but gained even more teeth during the August meeting. Now included in that definition of "campaigning" is "placing a candidate's name on the ballot or failing to take action to remove it from the ballot."1 That widening of the definition significantly lowers the bar for what qualifies as a violation and thus increases the likelihood that a candidate would be penalized.

And although the committee removed its latitude in penalizing candidates in the may-to-shall transition described above, the DNCRBC did add one more sentence to Rule 21.C.1.b that provided the DNC chair with some discretion in the matter. "The National Chair shall take appropriate action to enforce these rules." This one is clever in its ambiguity. 

Initially, when that rule change was being considered, it read, "The National Chair shall take appropriate action which may include adjusting debate participation, to enforce these rules." The striking of the debate-specific language is noteworthy, but only insofar as it gets at the ultimate intent of the resulting rule. Debate access sanctions are not off the table even without the inclusion of debate access language in the rule itself. That matter remains at the discretion of the DNC chair if he or she chooses to use that to enforce the rules/penalties against candidates. Ultimately, the DNCRBC collectively decided it did not have the power to legislate on primary debates, but empowered someone -- the DNC chair -- more involved in negotiating that process with the candidates and media partners. 

And those are the three legs upon which this more robust DNC penalties regime for 2024 is built. 
  1. Firming up delegate penalties (may-to-shall change).
  2. Lowering the bar for what constitutes "campaigning".
  3. Empowering the DNC chair to potentially limit debate access.
Look, FHQ will close where it often does with discussions of rules changes. Parties are limited in what they can do to rein in rogue actors whether they are candidates or states. 

In the end, if Iowa Democrats want to go first, then they will go first. But it will come at a more significant price under the 2024 Democratic delegate selection rules. Is it worth it to Iowa Democrats and some or all of the prospective candidates to hold and compete in a glorified straw poll? Candidates may gamble that a win in a beauty contest caucus will provide enough momentum heading into subsequent contests with actual stakes (read: delegates) on the line. But will they be less inclined to do so if debates access is on the line? Or does/do such a candidate or candidates just dare the DNC to prohibit them from participating? 

We do not know.

That is the thing about all of this. Nominations happen in real time not in a lab where one can simulate and test what particular actors' reactions will be under certain circumstances. The intent on the DNCRBC's part here in this particular section of rules is to create a psychology, a psychology where rules-based deterrents to future candidate behavior have some bearing on the decisions states and state parties make with respect to primary and caucus scheduling. Iowa Democrats may jump anyway if the protection of their first position on the calendar is not ultimately included in the 2024 rules. But these rules changes will make them think twice about that and about whether any candidates will gamble and show up if they do move into a noncompliant position. 

And that may be enough for the DNC. May.

1The latter encompasses states where presidential primary ballot access is determined not by specific candidate filing but by state actors such as secretaries of state.


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Monday, June 27, 2022

A Loophole in Republican Rules That May Help Democrats in Their Calendar Shuffle

The DNC's Rules and Bylaws Committee (DNCRBC) convened in Washington this last week to hear presentations from 16 state delegations and Puerto Rico pitching the value in putting their respective contests in the early presidential primary calendar window for 2024. 

There has been persistent chatter since 2020 -- and before that, if we are being honest -- about how or whether Iowa should still fit into the early part of the Democrats' process. And that was not different in the nation's capital this past week. Heading into the event even, the focus seemed to be on midwestern states -- Illinois, Michigan and Minnesota -- that might ideally replace the Hawkeye state as a regional representative among the early slate of states. But it is not clear that any of those potential replacements is an ideal, much less feasible, stand-in for the quadrennial lead-off contests the state parties in Iowa conduct. 

Each has a conflict with what it is the DNCRBC set as its guidelines for building an early window group of contests. Sure, Iowa Democrats have had its issues with competitive caucuses in the recent past, but there is no perfect candidate that can easily move in and assume an early calendar slot. Illinois convcievably can move to an earlier spot -- Democrats there control the state government. -- but the Prairie state has hardly been a battleground in the presidential races of the last generation. [There are campaign expense issues that candidates would have to contend with in Illinois that are not present in Iowa as well.] 

And both Michigan and Minnesota have Republicans standing in the way of any prospective shift to an earlier primary date. In the Great Lakes state, Republicans in control of the state legislature would have to relent to any change. Further west in Minnesota, the Republican barriers are different. There is no immediate need for change that would require state legislative action. Rather, both state party chairs, as described in current state law, would have to agree to a change of date for the presidential primary. Admittedly, there is less institutional resistance in Minnesota, but it remains a barrier to any alteration in the presidential primary date in the Land of 10,000 Lakes. 

It should also be noted that both the Michigan and Minnesota delegations indicated in their presentations to the DNCRBC that conversations with Republicans in their respective states had been started and were ongoing. And both came with endorsements of primary moves from former state Republican Party chairs and other former elected officials. But neither delegation was particularly forthcoming about just how feasible a date change was. Neither was willing to go public with any of those discussions for obvious reasons. The fear is that it might blow up those discussions on the Republican end and derail any movement toward a change. 

Those discussions -- that they are happening at all! -- are all well and good. But they obscure a major institutional obstacle to anything happening in either state in the Democratic process. Again, both delegations said discussions with Republicans were happening and ostensibly moving in positive directions. Furthermore, both added that they would keep the DNCRBC abreast of any relevant changes. 

Neither, however, noted the grim reality of just how unlikely it is that state Republicans could ultimately come to the table in a meaningful way. 

And it all is kind of ironic. Here they were, these two delegations among 15 others, pitching to the national party the virtues of their states being viable early, if not leading contests. Each was asking the DNC to add or keep them in to the early calendar window. But there was nary a mention of Republican National Committee rules guiding -- or CONSTRAINING -- Republican state parties in setting their rules for delegation selection (primary dates among them) and what impact that would have on the Democratic process.1

Namely, there was no mention of Rule 17 in the Rules of the Republican Party. As has been widely reported, especially in the context of these discussions of Democrats potentially shaking up their calendar for 2024, the RNC has already decided to carry over its early slate of states from 2020. In other words, Iowa, New Hampshire, South Carolina and Nevada (in that order) are protected in their early positions in the Republican rules for 2024, and other states are vulnerable to sanction if they try to encroach on the territory -- February -- set aside for those early states' contests. If the DNC opted to make Michigan or Minnesota the first state, or even a February state, then any subsequent primary move into that territory would reduce a delegation the size of Michigan or Minnesota -- 30 delegates or more -- to just 12 total delegates including RNC members. Republicans may be open to Democratic entreaties about a move in the abstract, but are significantly less likely to sign on to any deal that will have their own voices in the Republican nomination process greatly curtailed. This so-called super penalty has been incredibly effective in keeping Republican-controlled (to any degree) states in line since it was put in place after the 2012 election cycle. The potential hit has proven too prohibitive for state-level Republican decision-makers. 

One possible workaround was raised at the DNCRBC meetings in Washington this past week, albeit without acknowledging the Republican super penalty. Minnesota Democrats presenting before the DNCRBC noted that their state law says there needs to be bipartisan agreement on an alternate primary date, but not that there could not also be a second date for a second, later and compliant Republican primary. Minnesota does not have a recent history of presidential primaries split by party (on different dates). Michigan does, but the catch for either or both attempting to push things down that path is that it costs money. Perhaps there will be enough money in state coffers to allow for that, but that certainly is not guaranteed. 

There is also the prospect of Republicans opting for a state party-run and funded contest -- either primary or caucus -- while Democrats use the state government-run and funded primary in the first (or just an early) slot. Depending on the dynamics of the Republican race at the time a decision needs to be made (some time next year after the DNC will have to make a decision on its early slate of contests), Republicans may be open to a lower turnout, state party-run process. But there, too, it is not clear that state Republicans would go along with a plan that would allow state Democrats to have an early contest alone. 

And bear in mind that the DNCRBC is going to finalize its decision on the states that will be codified into the 2024 rules as the early states in early August. It is one thing to come to some tentative deal with state Republicans by then, but another to trust that it will hold over time and not hurt Democrats after that. That is not about anything underhanded Republicans may do in the meantime. Instead, it is an acknowledgment that these decisions have to be made early in order to insure that they can be effectively implemented on the state level. Dynamics may change in the Republican race that may provoke a change of heart from state-level Republicans. 

It very simply is a tough agreement to come to (and that is without considering how much emphasis both parties will place on 2024 and how much tension that may create).

Great. Thanks FHQ. You have once again thrown cold water the parties' reform plans. What else is new? 

Look, these are difficult changes to make because of the variety of interested actors and vested interests involved. If it was easy to change, then these things -- like some state other than Iowa being first -- would have been dealt with long ago. But they are not easy changes. It is easy to say, "Hey, put some other state in there," but it is an entirely different thing to actually do it. 

But all is not lost. Michigan or Minnesota going first as the sole midwestern representative may be, but not adding either one or the other as a minor tweak to the early state lineup. 

Let me walk through the steps because, again, the Republican rules constrain just how much latitude any decision-makers have in this at the state level. No one is likely to willingly walk into that super penalty. But there is a way to potentially work around it that could add a state like Michigan or Minnesota to the end of the early window (if the DNC so desires). 

Back in 2014 when Republicans made changes to the rules that were adopted at the 2012 national convention in Tampa, rules makers set March 1 as one of two lines of demarcation. No state not named Iowa, New Hampshire, South Carolina and Nevada could hold a contest before that point on the calendar in 2016. The other line was March 15, on or after which states were allowed to allocate delegates in any fashion. [Before that point, states were mandated to use a proportional method.]

And that was fine. 

In 2016. 

In 2016, both March 1 and March 15 fell on the traditional days on which most nomination contests are held, Tuesday. But here's the thing: the party never tweaked those lines of demarcation in the rules timeline after 2016. Those rules -- that specific language -- carried over to 2020, but were not all that consequential then with the Republican presidential nomination largely (or meaningfully) uncontested. 

Now, however, as 2024 approaches, the Republican National Committee has chosen to once again carry the bulk of those rules over to a third consecutive cycle. The guidelines continue to prohibit February on the calendar to non-carve-out states and sets a proportionality window that closes as the clock strikes midnight to usher in March 15. Only, neither March 1 nor March 15 are on Tuesday in 2024. They both fall on Friday. 

By now, one can no doubt see where I am going with this. Democratic rules set the beginning of what they call the window -- the period after traditionally exempt states like Iowa, New Hampshire, Nevada and South Carolina hold their contests -- as the first Tuesday in March. In 2024, that first Tuesday in March is March 5, the date that is very likely to be deemed Super Tuesday in the next cycle. But under Republican rules there is a four day window before that point in which states could schedule contests and not be subjected to the super penalty. You know, states like Michigan or Minnesota where state Republicans would not necessarily be inclined to agree with Democrats on a primary move if it meant opening themselves up to losing around three-quarters of their delegation to the national convention. 

Again, that helps neither state slide into the first slot, replacing Iowa, but it does open the door to one or the other of Michigan or Minnesota being added to the early part of the 2024 calendar

However, even that novel approach to shuffling the calendar is not foolproof for Democrats as their August decision on the early calendar approaches. There are a couple of issues, one on each side of the aisle, that may cause some problems. The first is easy enough. The RNC may change its rules to close that loophole. Rule 12 allows the party to change certain rules -- those pertaining to delegate selection -- up to September 30 of the midterm year ahead of any presidential election. [And after tens of people read this post, it could happen!]

Secondly, presumably adding a fifth state into the mix in the Democratic presidential nomination process really creates a time crunch for the party and those five states. If there is only a window from the first Monday in February to Super Tuesday in early March in which to schedule those contests, then things get dicey.  That is more true in light of state-level scheduling laws. Iowa's law calls for its caucuses (or "caucuses" now that they are likely to more caucus-in-name-only on the Democratic side) to be eight (8) days before any other contest. In New Hampshire that lead time is seven (7) day before any other "similar contest." Oh, and Nevada's new law that established a stand-alone presidential primary starting with the 2024 cycle schedules the date of that contest for the first Tuesday in February, a day after the Iowa caucuses have been in recent cycles. In other words, there some tension there that needs to be ironed out. 

And let us not leave South Carolina out of this discussion either. While the above three traditionally early states have some conflicts to fix at the beginning of the pre-window period, Palmetto state Democrats may take issue with any contest that may slip into the end of that period. For starters, if South Carolina retains an early spot on the calendar, then its recent Saturday before Super Tuesday date would fit into that Republican rule loophole window described above as well. Now, South Carolina Democrats may not mind shifting to a slightly earlier date, but that may also disrupt the regular rhythms of the overall South Carolina presidential nomination process and the perceived impact the state has on the course of a Democratic nomination. 

Typically, South Carolina Democrats and Republicans have not held simultaneous presidential primaries. That is partly a throwback to the not-so-distant past practice of the state parties funding and administering those contests and partly a function of Republicans slotting South Carolina into the third position on their calendar and Democrats scheduling them fourth. For the DNC to keep South Carolina fourth and add a fifth state into the pre-window would likely mean moving South Carolina up a Saturday in February and onto the likely Saturday of the Republican primary in the state. That would mean a lesser expenditure for the state now that it funds and runs the primaries, but again it breaks with the traditional pattern in the state and may not win buy-in from both state parties. 

Additionally, South Carolina Democrats may not want to give up that prime spot on the Saturday before Super Tuesday. Rep. Jim Clyburn's endorsement of Joe Biden was seen as a turning in the Democratic race in 2020. [Some of us would argue that turning point happened the week before in Nevada when Biden placed second, but that view is not as widely adopted.] Biden's subsequent win in the Palmetto state was a springboard into the Super Tuesday states that had more diverse constituencies on a day that had a decidedly southern flavor and emphasized the black electorate. South Carolina may or may not have played a direct role in Biden's subsequent success on Super Tuesday, but if Democratic leaders in the state think it did, then they may prove stubborn when confronted with possibly giving that slot up to another state. 

And even if South Carolina Democrats prefer being fifth in the order to keep that springboard position prior to Super Tuesday, that does not leave a lot of wiggle room to fit in a state like Michigan or Minnesota (if they want to get state Republicans to the table). In fact, it leaves only Friday, March 1. Back-to-back contests may not be workable for either state if that emerges as the only option to DNC-level decision makers.

Great. Thanks again, FHQ. You have now provided a solution to the initial problem and have even thrown some cold water on it

Yeah, I have. 

But that is indicative of the thicket into which rules makers wade when they set out to tweak their rules every cycle. It just is not that easy. States and state laws are involved. State parties of all stripes and their rules are involved. Voters' interests are involved. The national parties' rules are also at the confluence of all of those actors. It is an intricate jigsaw puzzle that requires a deft touch to alter and sometimes that does not wed well with consensus building. 

So, as the DNCRBC continues to tackle this issue it has set before its members, bear all of this in mind. Change may be forthcoming -- even big changes to the early window -- but do not be surprised if those tweaks are minor and/or incremental. That is just the nature of the process. 

1 There was a mention of the RNC rules, but that came early on the proceedings before the state presentations began. During a discussion of Rule 21 -- the challenge rule that describes the penalties for delegate selection rules violations in the Democratic process -- DNCRBC member, Elaine Kamarck, noted a convention stage Republican mechanism that basically prevents a state party from using (in the case of this discussion) a non-compliant method of delegate allocation. States can set non-compliant rules, but cannot effectively employ them at the convention on the roll call vote for the presidential nomination. 

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Monday, May 9, 2022

Let's Talk About Iowa

If there is one thing that can pull FHQ out of a posting hiatus that has lasted more than a year, then it is a potential shake up to the presidential primary calendar. So here we go. 

In recent weeks there has been renewed chatter surrounding Iowa's continued presence not only among the early presidential primary and caucus states but at the front of the queue within the 2024 Democratic presidential nomination process. This is nothing new. It happens in some way, shape or form every cycle within one or both of the two major parties. Yet, some cycles see a much more muted, almost perfunctory discussion. 

This is not one of those cycles. 

Some within the broader Democratic Party network have raised legitimate concerns about how well aligned Iowa, much less its smaller caucusing electorate, is with the increasingly diversifying Democratic Party. And folks were saying those things before the Democratic caucus debacle in the Hawkeye state in 2020. With that added layer, Iowa quickly came back into the crosshairs and has not really left.

The sentiment remained in some quarters of the broader party to do something about Iowa, but the process had not caught up with it. Unlike in cycles when there is clearly an open Democratic presidential nomination process (or after a very competitive one), the Democratic National Committee has had no commission to deal with any real or perceived issues from the previous cycle ahead of 2024. It is that very sort of commission that in the past would have considered (or reconsidered) the pre-window early states on the calendar in the year immediately following the presidential election. Its recommendations, if any, would then be handed off to the DNC Rules and Bylaws Committee (DNCRBC) for its consideration during the first two-thirds of the midterm election year. 

That is where the process is now (sans preceding commission dedicated to some real or perceived nomination problem). Sure, there were Iowa and process discussions in 2021, but not to the degree that they would have been had there been a commission. Still, all of this is currently occurring well within the regular rhythms of the national Democratic Party rules-making process. 

So, what is the DNCRBC considering with respect to Iowa and the 2024 presidential primary calendar now that it has entered into one of its intra-cycle busy seasons? 

It is multifaceted, but as has been reported since the DNCRBC met at the winter DNC meeting in Washington, DC in early March, there is a proposed framework that would require the four traditionally early states -- Iowa, New Hampshire, Nevada and South Carolina -- to make the case before the committee as to why they should retain those positions. The proposed draft framework also describes the the criteria by which the DNCRBC would evaluate those waivers requests; placing particular emphasis on diversity (racial, geographic, unionization, etc.), primaries over caucuses, competitiveness in the general election and feasibility of holding an early contest. And this is not exactly about putting Iowa, New Hampshire, Nevada and South Carolina under the microscope. The intent is to open the waivers process up to all states and territories. But the natural reaction has been to deem the whole thing the opening salvo in the demise of the Iowa caucuses at the head of the Democratic presidential nomination line. 

Again, that is a natural reaction. Iowa may check a geographic diversity box. It is (rural and) the midwestern representative among the traditional early four states. But it is not nearly as racially diverse as the broader Democratic Party, has caucuses (written into and protected by state law) and not a primary and is decreasingly competitive (and favoring Republicans) in presidential general elections. However, Hawkeye state Democrats retain an important building block in any of these discussions: it has for half a century now and can reasonably hold an early contest.

But in any resulting cost/benefit analysis, the odds seem stacked against Iowa and its Democratic caucuses. In fact, at the the March 28 virtual DNCRBC meeting, every member who spoke, spoke in favor of the working draft resolution. Granted, the word Iowa was never uttered, but its position was was hinted at a number of times by members who strongly advocated for more diversity in the pre-window period (Maria Cardona, Mo Elleithee, etc.) and others who echoed points raised in recent discussions in public meetings about the Democratic Party not being beholden to tradition or as member Leah Daughtry said in the latest virtual meeting, "a calendar from 50 years ago." That is all very hint, hint, nudge, nudge. Ahem, Iowa.

But let's take a step back now that the resolution opening up the process has passed and 20 states and territories (including all four traditionally early states) have filed petitions for waivers to hold contests in the pre-window period with the DNCRBC and look at this from a different perspective, one that does not instantly veer off into "Iowa's doomed!" territory.

And to be honest, I'm almost surprised I haven't seen this cynically posted in some dark corner of social media somewhere. That cynical spin would go something like this: "Well, the DNC is talking about shaking up the early presidential primary calendar, but they ultimately won't do anything." And that would inevitably be followed with something about the establishment DNC working to maintain the status quo. Look, that may be out there and I missed it. [Sometimes those repeated arguments levied almost as an involuntary reaction no matter the problem get monotonous. And yes, some may say the same thing about some of the arguments I've made in this space for more than a decade and a half.]  

To even potentially make that assumption -- that all the DNCRBC is doing now is paying lip service to possible calendar change -- misses the point of what the DNCRBC has actually done in 2022. Iowa's caucuses may end up back at the front of the line, but the Democrats in the state will have had to work harder and to start that work in earnest earlier than they done in most past cycles. 

Here is what I mean. In most recent cycles, Iowa Democrats would not have to have anything formally assemble anything for the next cycle until putting a draft delegate selection plan out for public comment. And that typically occurs in the spring following the midterm election before formal proposals are due to the DNCRBC for review at the beginning part of May. In the context of the 2024 cycle, the normal procedure would maybe have Iowa Democrats talking about change at this point in the cycle -- and maybe even about significant changes -- but it would not necessarily have the urgency as it does in right now in 2022 given the direction the DNCRBC has taken things with the recent passage of its resolution. 

Of course, there was going to be urgency for Iowa Democrats after 2020 anyway, but the DNCRBC has manufactured additional external pressure by 1) making the four traditionally early states petition for waivers (rather than entering a new cycle with them mostly assuming things would carry over as they have done during the post-reform era and especially since the period after 2008), and 2) making them compete with other states for one of up to five early slots on the calendar.

Iowa Democrats now have to have something while not necessarily formal to present to the DNCRBC this summer, something that is nonetheless concrete with respect to how the state party is going to remedy the issues of 2020 and meet the new criteria laid out by the committee. That is within the next month or so and not by early May of next year as has been routine in the Democratic process. That is no small thing. 

The addition of that simple bureaucratic step in the process may indeed yield the same early primary calendar slate, but it has created a real set of incentives that very well may lead to real changes that move the same early states closer to broadly shared party goals. No, if Iowa and the remainder of the early four states hold their positions for 2024, that will not do much to further the work of the Price commission (which added Nevada and South Carolina to the early states for the 2008 cycle) in terms of diversity, but it would likely push things toward another DNC goal that has arisen in the time since: increased participation. Iowa Democrats may call their contest a caucus in 2024, but it will have to function at the very least like something akin to what Iowa Republicans do or move to something that is more primary-like in some ways to better accommodate increased participation. Because the gathering/caucusing and realigning (not to mention the use of state delegate equivalents) may very well (have to) be a thing of the past in the Iowa Democratic delegate selection process at this point. 

Look, this is not a post where I am arguing for Iowa's continued inclusion as the lead-off state in the Democratic process. There are a number of recent (and lengthy) Twitter threads where I have offered some ways in which Iowa Democrats could change their process (and to place into context the extent to which Iowa results are discounted in the Democratic presidential nomination process anyway). Instead, this post is intended to point out the changes the DNCRBC has already put in place. Even if the beginning of the calendar remains the very same as it has by rule since 2008, the added step is potentially significantly beneficial with respect to changes in the direction of broader party goals. 

And besides, the 2024 presidential primary calendar is not going to remain the same anyway. The DNCRBC has kind of quietly accounted for that already. Even if this new process yields the same four states in the pre-window, the committee still has the option of upping their number to five. That is not a cop out on the part of the committee. While simply adding a fifth state would potentially provide a very concrete example of change, the process of upping the ante on the traditionally early four states should also lead to positive examples of changes in their state-level processes. 

Part of the 2024 calendar may look the same at the beginning, then, but at least part of it is likely to change. 

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