Wednesday, December 28, 2022

"It will be a state-sponsored public opinion poll"

Anthony Brooks of WBUR had a nice report on Here and Now about the showdown over the New Hampshire presidential primary between Granite state Democrats and the Democratic National Committee. 

Regular readers of FHQ will note that it covers familiar ground, but Brooks also did well to get DNC Rules and Bylaws Committee (DNCRBC) Co-chair Jim Roosevelt on record for the piece. And Roosevelt's comments were illuminating:

On New Hampshire generally...
"New Hampshire has done this [held the first-in-the-nation primary] and done this well for a century or more, but they have always abided by the party rules. This is the first time they are not doing that."

On the effects of punishments for DNC rule breaking... 
"It [the New Hampshire presidential primary] will be a state-sponsored public opinion poll."

Neither of those statements is all that surprising. The notion of the DNCRBC going beyond the 50 percent penalty on states that violate the rules on the timing of primaries and caucuses came up at the panel's meeting in early December. It is not even a revelation that this is the first time in the post-reform era that New Hampshire will have broken the DNC timing rules. FHQ has covered that ground.

However, what is surprising -- or perhaps, noteworthy -- is that Brooks even reached out to Roosevelt for comment or that Roosevelt went on the record. It is not exactly common for rules committee members, much less chairs, to either comment or be a part of these stories. It is not that chairs cannot or should not do so, but rather, that they usually do not. Roosevelt's comments represent a small counter to the very vocal defiance from the Granite state to this point following the DNCRBC adoption of the president's calendar proposal. But it does say something about how the DNCRBC is signaling it will deal with states that run afoul of the party rules. ...even New Hampshire.

There is one other thing from the Brooks interview that merits mentioning. The edit of the final story transitions from Brooks describing the penalties New Hampshire Democrats may face -- mainly focused on not seating delegates at the national convention -- to Roosevelt's comment about the state-sponsored public opinion poll. Unfortunately, it is not clear at this point whether those two things necessarily track one another. 

In personal conversations, Roosevelt has always made plain to me the fact that the delegate penalties on candidates or states apply during primary season; meaning a violating state's/candidate's delegates are not included in the various delegate counts that are tallied as the race moves from one state to another. It is a perceptual (if not real) penalty. [The count is very real to the perception of how the race is going and how it typically ends.]

The convention and the seating of delegates are different matters. A convention -- or its Credentials Committee -- makes the decisions on whether to seat delegates, and those decisions are made after primary season (and typically after the nomination race) has concluded. Alternatively, a presumptive nominee can urge the full seating of a sanctioned state's delegation as Barack Obama did with Florida and Michigan in 2008 (reversing a May 2008 decision by the DNCRBC to seat all of the two states' delegates but only count each delegate's vote as half).

So, it is not clear from this Here and Now story that Roosevelt is threatening to hypothetically not seat the New Hampshire delegation at the 2024 Democratic National Convention (should the state ultimately not be in compliance). It is clear that the DNCRBC has only so much power and it exists mainly before and during primary season. But a national convention is the ultimate arbiter in either national party. And a convention has different goals from what the party is attempting to accomplish during a nomination race. It can go against a previous decision by one of the party's standing committees. 

But, that Roosevelt is speaking out now suggests that such an eventuality will not come without a fight. And that is really the take home message from all of this. New Hampshire Democrats are telegraphing that they intend to break what are likely to be the DNC calendar rules (when adopted in February). And Roosevelt is signaling that New Hampshire will not be protected in 2024. It will be treated as any other state that breaks the timing rules. 


Tuesday, December 27, 2022

It Isn't Just the Democrats Who Are Shaking up the 2024 Presidential Primary Calendar

Ever since early December when the DNC Rules and Bylaws Committee adopted President Biden's early calendar proposal there has been a lot of talk around here and elsewhere about how those changes may affect how the beginning of the 2024 presidential primary calendar develops. Bumping the South Carolina Democratic primary up to the first slot will likely have the effect of pushing at least the Iowa Republican caucuses and New Hampshire primary into January. 

But there may be some changes forthcoming at the end of the calendar as well. 

Last week the Republican National Committee (RNC) announced the dates of its 2024 national convention set to take place in Milwaukee. And the July 15 kickoff will trigger a new provision in the rules of the Republican Party amended earlier this year. It has been the case over the last few cycles that the RNC, much like their DNC counterparts, set a window in which most states can hold primaries and caucuses. On the Democratic side that Rule 12.A window runs from the first Tuesday in March through the second Tuesday in June. And the Republican equivalent for the last two cycles described in Rule 16(c)(1) has been from March 1 until the second Saturday in June. 

Only now, there is an additional OR phrase tagged on the back end of the defined Republican window. Contests must now be held on or before "the second Saturday in June in the year in which a national convention is held or less than forty-five (45) days before the national convention is scheduled to begin."

That is where the convention decision from last week comes into play. 45 days before July 15 is Wednesday, May 31, 2024. All Republican primaries and caucuses, then, must be completed by the end of May which, in turn, means that a handful of states are out of compliance (or will be) with June primary dates scheduled under various state laws. 

Five states and territories -- Montana, New Jersey, New Mexico, South Dakota and Washington (DC) -- will all have to either change the dates of those contests or make alternate plans. Republican control at the state level in Montana and South Dakota means changes are more likely there than elsewhere in places where Democrats hold the levers of power. But changes will have to occur in those states as well. DC Republicans already had to deal with a similar issue -- one where the primary was too late to comply with RNC timing rules -- when a mid-June primary scheduled for the 2016 cycle forced the party to opt for a March convention. Without amended laws, the others will have to seek out state party-run paths to compliance if the current laws are left unchanged. 

Now, to be clear, like the beginning of the calendar where small delegate caches do not make a huge difference in the grand scheme of a nomination race, this change at the back of the calendar likely will not be decisive. Together those six states and territories would have comprised just under seven percent of the total number of Republican delegates at stake in 2020.1 However, this rules change will have the effect of further compressing the overall calendar. Not by much, but it will push the end of the calendar up by a couple of weeks while the DNC decision on their pre-window will widen it by about as much if not a little more once Iowa and New Hampshire settle into place for the Republican process. 

In the end, this is another way in which the two national parties have diverged in their thinking -- if not approach to -- the 2024 presidential primary calendar

1 For Democrats, the share is even smaller. The five states amounted to nearly six percent of the total number of Democratic delegates in the 2020 cycle.


Saturday, December 24, 2022

New Hampshire Democrats' Lose-Lose Predicament

Look, FHQ does not want to double dip on the New Hampshire/DNC rift over the Granite state's position on the 2024 presidential primary calendar. I already weighed in at length in response to the Boston Globe op-ed the New Hampshire congressional delegation -- all Democrats -- ran last week in defense of the Granite state's first-in-the-nation status. 

Plus, there is ample time to discuss these things. There probably isn't infinite time to deal with the issues -- fixes take time -- but there is more than enough time to talk about them. 

As such and to reiterate, New Hampshire will have the first primary in 2024. There, I said it. It will be first primary at the very least in the Republican process. However, despite the rapid-fire defiance from Granite state Democrats there remain questions about the fate of their 2024 process. While several New Hampshire Democrats have suggested the DNC cannot effectively enforce the penalties on the Democratic delegation from New Hampshire, the simple truth of the matter is that that hypothesis has not been tested in the post-reform era under these exact conditions. New Hampshire does not have a (direct) guaranteed first primary position in the DNC's proposed process for the first time since 1984.1 And it has less latitude as a result.

By definition, then, this is a different game that the New Hampshire Democrats are playing during the 2024 cycle. And their options are more limited. 

That reality is true regardless of the arguments the state party and their surrogates are making. The letter that Chairman Raymond Buckley of the New Hampshire Democratic Party sent to DNC Chair Jaime Harrison as part of this blitz to defend the early presidential primary status makes the usual arguments.2 State law, fragile but consistent Democratic advantage in the Granite state, etc. 

But Chairman Buckley's notion of the "undue burden" the DNC is placing on the New Hampshire Democratic Party triggered a few thoughts I had upon first seeing the conditions of the state party's pre-window waiver. The chairman is not exactly wrong that the contingencies will force New Hampshire into noncompliance. That was clear early on. Yet, while Buckley's attention was on the early vote requirements and participatory comparisons to the other proposed early states, my thoughts were elsewhere. 

Why did the contingencies focus exclusively on routing change in New Hampshire through the Republican-controlled state government? Yes, that is an avenue for changing the state laws on primary scheduling and adding early voting. But that is just one path. Why was there no focus on the secretary of state in New Hampshire? After all, it is that office that holds the date-setting power for the presidential primary in the Granite state. 

For example, why not focus on the "similar election" language in New Hampshire state law. The secretary of state is charged with scheduling the presidential primary at least seven days before any other similar election. But what is a similar election? There is no definition of it in state law. The layman shorthand has always been that Iowa has a caucus and that is why the Hawkeye state has gone first without falling into any major tiff with New Hampshire over the years. 

However, former Secretary Bill Gardner always gave a more nuanced explanation than the simplistic primary/caucus binary. Iowans in both parties, after all, were voting ahead of New Hampshirites every cycle. Gardner looked at those acts differently. Republicans were voting, yes, but they were voting on delegates to the next step of the caucus/convention process and not national convention delegates. In other words, there was no direct connection between those precinct caucus votes and the ultimately delegate allocation. Republican caucus votes at snowy Des Moines precinct caucuses, for example, were not binding in the way they were and are in New Hampshire. Similarly, the votes of Iowa Democrats caucusing in school gyms and living rooms across the state traditionally translated into state delegate equivalents and were reported as such (and not as Candidate X won Y delegates from Iowa). 

In recent cycles, however, those lines have blurred some without any real (negative) response from Gardner. Iowa Republicans made those initial caucus votes binding in 2016 in response to a change in Republican National Committee rules that cycle. And while Democrats in Iowa retained the state delegate equivalent standard in 2020, that was not the only metric reported on caucus night and national convention delegate counts were locked based on precinct caucus results

The point here is that Gardner's rationale changed over time, or rather, implementation in Iowa changed without Gardner responding by jumping New Hampshire past the Hawkeye state caucuses. So, not only is there no definition of similar election in state law, but there is demonstrated discretion with how a New Hampshire secretary of state can approach the similar election conundrum. There is some wiggle room.

Sure, current New Hampshire Secretary of State David Scanlan is a Republican, but this is his first go-round in the quadrennial calendar wars as secretary of state. Scanlan has already vowed to follow the primary law, but again, why did the DNC not focus on him in the contingencies for New Hampshire's pre-window waiver instead of the Republican-controlled legislature? 

Perhaps, for example, a primary in which an incumbent president is running unopposed or largely unopposed is not a similar election. Little is on the line. Perhaps another state's primary in which candidates are not on the ballot but are on it in New Hampshire, a state famous for its low bar for candidate entry, is not a similar contest. 2024 may be that cycle and South Carolina and Nevada may have those types of primaries. Maybe. But put a pin in that for a second. 

In addition, rather than aiming for the secretary of state, the DNC contingencies could have focused on a different, middle ground. Look at that New Hampshire presidential primary statute again. Ideally, under the law, the New Hampshire primary is supposed to occur on the second Tuesday in March concurrent with March town meetings across the state. It is only when that is not possible -- when that date is not seven days before any similar election -- that the presidential primary in the Granite state shifts to an earlier point on the calendar. 

Since town meetings still occur separate from the New Hampshire presidential primary in years when it is before the second Tuesday in March, perhaps the DNC could have built a contingency that honed in on that dual system -- the presence of a presidential primary and a separate set of town meetings. The Republican legislature may not want to change the date, but they could be more receptive to a later option tethered to town meeting day for either Democrats or parties without an active (competitive) nomination race. Again, the Republican legislature in New Hampshire could be more receptive to that sort of maneuver. 

Then again, an option that Chairman Buckley failed to note in his letter to DNC Chair Harrison was a party-run option. The New Hampshire Democratic Party could run its own contest -- and/or fight the state law if they have to in order to hold one -- that falls on a later date on the calendar, maybe even town meeting day. That option is out there. But Buckley did not mention that. And the DNC did not make an alternate party-run contest a condition for the state party to successfully win its pre-window waiver because the party prefers a state-run option where one is available (just not a noncompliant one). 

Of course, there is a reason Buckley did not mention that party-run option. It is the same reason that the secretary of state likely would not carve out a more exclusive definition of similar election and why the Republican legislature likely would not change state law to accommodate a later option (even one that preserved the first slot for itself). None of those actors would make any of those moves because any one of them would undermine the first-in-the-nation law and the unified front everyone in the state has attempted to maintain over the years. 

It is not that there are not options, it is that New Hampshire actors little incentive to utilize them. Not yet anyway. New Hampshire Democrats are banking on the DNC caving again and not enforcing its rules. However, the 2024 cycle is different. Again, New Hampshire Democrats do not have the same guarantees from the national party that they have had in the past. And that changes the calculus.

That is the problem. That is the lose-lose situation in which New Hampshire Democrats find themselves mired. If they remain defiant, they run the risk of running afoul of DNC rules and being assessed penalties that could set the party back both within the state and potentially nationally. If they bend or aid in bending to one of the options above, then they have undermined forever the state law that the party has used as a shield throughout the post-reform era. There are no wins there; only a hope from the New Hampshire Democratic Party that the DNC folds in all of this.

Maybe, but it will be a messy process in getting to that point.

1 Before 1984, both New Hampshire and Iowa were indirectly exempt in the DNC rules or unaffected. See more here.

2 Below is the letter Buckley sent to the DNC chair.


Thursday, December 22, 2022

South Carolina's Rise to the Pre-Window

If you have not already read it, then FHQ highly recommends the recent Washington Post opinion piece from College of Charleston political scientists Gibbs Knotts and Jordan Ragusa. How the South Carolina primary gained primacy -- From first in the South to first in the Nation is a really good accounting of how, over time, the presidential primary in the Palmetto state got to where it did in the calendar proposal adopted by the DNC Rules and Bylaws Committee earlier this month. 

There were a couple of passages in the piece that made me think of a pair of stories.

1. In the section about the efforts of South Carolina Democrats to move the party-run presidential primary up in the 1992 process, Knotts and Ragusa write:
"By the 1990s, however, the success of South Carolina’s Republican presidential primary was undeniable and, in 1992, the state’s Democrats attempted to position themselves alongside Republicans as the First in the South state. Despite support for the early primary, Georgia leaped past South Carolina to host the first primary in the South that year as its governor, Zell Miller, worked with Georgia’s state legislature to secure the coveted position."
The jockeying between South Carolina in Georgia during the 1992 cycle is partly a story of a change in Democratic rules for the cycle. Following 1988, the DNC made the decision to widen the so-called window -- the period that states can hold presidential primaries and caucuses without penalty or a waiver -- by a week. In previous cycles the earliest states could conduct the first stage of their delegate selection events was the second Tuesday in March. But for 1992, that earliest point got bumped up to the first Tuesday in March

Several states took advantage of the change and moved to the new earliest position for 1992 during 1991. But none of them were from the South other than South Carolina. And that left the South Carolina Democratic primary as the first primary in the South scheduled on the Saturday before the remnants of the 1988 Southern Super Tuesday (on the second Tuesday in March 1992).

But things changed.

In early October 1991, Governor Bill Clinton (D-AR) entered the Democratic nomination race. And the story goes that Clinton discussed with his fellow southern governor, Zell Miller (D-GA), the idea of moving the presidential primary in the Peach state up to that earliest point to potentially give Clinton a lifeline on the early part of the calendar. 

Miller came to Clinton's aid, but there are two things to note here. First, Bill Clinton entered the race in October 1991, barely five months before the Iowa caucuses kicked off the voting phase of the 1992 cycle. In current presidential nomination politics that is white knight time, not a juncture in the cycle when serious contenders, much less future nominees, decide to throw their hats in the ring. Times have changed. 

Second, at that point in time -- fall 1991 -- the Georgia General Assembly was already adjourned for the year. Miller eventually leaned on the legislature, but did so when the body reconvened for the second half of the 1991-92 legislative session. HB 196 -- changing the date of the primary -- did not clear the legislative hurdle to be signed into law until mid-January 1992. And that was less than two months before the primary election. But that was not the end of the story. Section V preclearance under the Voting Rights Act was still a thing at this time and Georgia was a covered jurisdiction. The presidential primary date change still had to win preclearance from the Justice Department (which it ultimately did). 

The Georgia move is unusual in a great many respects. Primary date changes do not usually happen in the year of a presidential election. And if they do, those changes are typically intended for the next cycle. Also, this change came together rather quickly. That was also unique. More often than not, coordination on this sort of move -- one that goes through the legislative process -- takes some time (and in the case of Georgia at the time, was an effort eased by a Democratic legislature).

But that is how Georgia came to jump South Carolina -- really late -- and claimed the first-in-the-South mantle during the 1992 cycle. 

2. Knotts and Ragusa also pinpoint the 2004 cycle as a turning point for the South Carolina Democratic primary rising to the early part of the Democratic calendar. They write:
"Later that decade, the DNC prevented South Carolina Democratic leaders from holding an early primary alongside the state’s GOP contest because of national rules prohibiting primaries from occurring before the first Tuesday in March. Only two states had waivers: Iowa and New Hampshire. 
"Eventually, the DNC conceded, and South Carolina Democrats held the inaugural First in the South primary in 2004. Since then, the state has played a critical role in the race for the White House, often serving as a decisive vote after mixed, and often controversial, results in Iowa and New Hampshire."
Here, FHQ would gently push back to add some context. The 2004 cycle was important, but it did not represent a cycle in which the DNC relented and let South Carolina go early. Well, the DNC did not let South Carolina alone go earlier. As in the 1992 cycle, the DNC decided to widen the window for 2004. This time the party allowed states -- those with no waiver -- to hold contests as early as the first Tuesday in February, a month earlier than had been the case from 1992-2000. It was both a response to the Republican calendars that had come to include February contests over the previous few cycles, but also to compress the calendar and settle on a nominee as early as possible and better prepare for a run against an incumbent Republican president.

Again, South Carolina Democrats took advantage of the earlier window and moved their presidential primary to that first Tuesday in February position alongside six other states. Missouri and Oklahoma, two peripherally southern states, held primaries that same day, but, technically, South Carolina was the first-in-the-South.

It was not until after 2004 and the 2006 Price commission that the DNC moved on recommendations to expand the pre-window lineup for the 2008 cycle. Those changes brought geographic and racial diversity in to the early part of the calendar before the window opened that cycle (once again on the first Tuesday in February). They also ushered South Carolina not only into the pre-window period on the calendar, but as the lone southern representative there. 

That was what gave South Carolina Democrats the early (first-in-the-South) and a distinct (with a pre-window waiver) position that it still holds. Only, the proposed slot for the Democratic presidential primary in the Palmetto state is slightly earlier in 2024.


Wednesday, December 21, 2022

Updated Notes on the 2024 Presidential Primary Calendar

As the invisible primary leading up to the 2024 presidential primary season moves from one phase to another, it is worth taking a step back here at FHQ to better assess where the evolution of the primary calendar stands. The end of 2022 mostly brings to a close the national party phase of the process. The Rule 12 deadline to make changes to the Republican National Committee (RNC) rules for 2024 came and went this past September 30 with no significant tweaks, and the Democratic National Committee (DNC) finalized all but its calendar rules back in September as well. But while the RNC stuck with the calendar rules it carried over from 2016 (into 2020 and now 2024), the DNC punted the decision until after the midterm elections (for good reason). 

And following a December meeting, the DNC Rules and Bylaws Committee (DNCRBC) adopted a calendar plan that was a radical departure from the Iowa, New Hampshire, Nevada and South Carolina (in that order) plan the party has utilized in presidential nomination rules starting with and since the 2008 cycle. That answers a few questions that were left hanging out there throughout much of 2021 and 2022. Namely...
Not only did Democrats break with the standard protocol of national parties having rules in place by the late summer of the midterm year, but the party was also more active in altering its rules as the party in the White House than the out party. And that is unusual. But it speaks to something that FHQ touched on in March of last year:
"The relative silence on the Republican side has made this all a mystery to this point in the cycle. The obvious "problem" areas once common across parties are not exactly problematic for Republicans. It could also be said that the perception of delegate selection rules problems is asymmetric across national parties. That may yet change as the cycle develops, but at this point bet on state-level changes over national-level rules changes until anything new bubbles up, something that also differs from how Democrats have handled things in their own rules change track up to now."
The problems, perceived or otherwise, have changed. This is no longer the calendar chaos of 2008 that the two national parties are trying to clean up. That was a common problem then. States had incentive -- or lacked disincentives -- to jump the queue on the primary calendar in order to chase influence and attention.  Both parties pushed back the opening of the window -- when states other than exempt ones like Iowa, New Hampshire, Nevada and South Carolina can start conducting primaries and caucuses -- to the beginning of March for 2012 and spent the next several cycles devising ways to penalize violating states.1 In other words, states have been kept largely in check due to those efforts to 1) informally coordinate a February start to primary season and 2) tackle the penalty severity issue. 

But again, the problems are different now. They are asymmetric. While Republicans are content with the usual lineup of early states in their process, the Democrats have become increasingly disgruntled with the mismatch between the diversity of the broader Democratic Party network and that of the sum of the four earliest states. That divergence in goals has obvious implications for the 2024 presidential primary calendar and how it evolves.

With that in mind and now that the process is shifting from the national party phase to the state parties/government phase in 2023, a reexamination of the calendar notes from early 2021 are in order. 

1. There are still no official dates for the earliest contests

There continues to be no guidance from the RNC on the matter other than exemptions from timing penalties for Iowa, New Hampshire, South Carolina and Nevada (in that order in the rules but without the timing). And while the DNCRBC has adopted a plan that sets forth specific dates for South Carolina, Nevada/New Hampshire, Georgia and Michigan, that plan has yet to be finalized by the full DNC (a formality) and is aspirational in part or in whole. 

South Carolina Democrats will hold a primary on February 3, 2024. The state party pulls the strings there and can get that done. 

Nevada, with a Republican in the governor's mansion now dividing government with Democrats in the state legislature, is also (more than likely) locked into the February 6, 2024 position both called for in state law and set aside for the Nevada primary by the DNCRBC-passed rules package. 

Iowa's midwestern replacement in the DNCRBC plan also stands a good chance of moving into the position -- February 27, 2024 -- carved out for it by the proposed rules with a newly unified Democratic government in charge in Michigan. 

Those, as FHQ mentioned recently, are the known knowns at this point. All have positions and are either already in them or very likely will be in 2023.

The unknown knowns of the early calendar are Iowa, New Hampshire and Georgia. All three have reserved spots in at least one party's calendar plans but all three are wildcards in terms of where they may ultimately end up on the calendar.

Georgia is probably the easiest with which to deal. The DNCRBC plan calls for a February 13, 2024 presidential primary in Peach state, but that does not appear to have any buy-in from the Republican-controlled secretary of state's office. With no leverage there -- in the office that controls the scheduling of the Georgia primary -- national Democrats are unlikely to get their wish. And since there is no specific date set for the Georgia primary in state law, the primary is likely to end up in a position on or after the first Tuesday in March (Super Tuesday) to remain compliant with both parties' delegate selection rules. 

While the Georgia primary may end up after the pre-window period into which national Democrats hope to place it, Iowa and New Hampshire are likely to end up before it, which is to say before the next earliest similar contest, the South Carolina Democratic primary. But it may be the Nevada Republicans who hold the key to determining just how early the 2024 primary season begins. 

Should Nevada Republicans opt into the February 6 primary in the Silver state, then... 
  1. South Carolina Republicans likely move into a January 27 slot (the Saturday a week ahead of South Carolina Democrats),
  2. The New Hampshire secretary of state, in turn, would be likely to shift the Granite state primary to the Tuesday at least seven days before the South Carolina Republican primary (January 16),
  3. And the Iowa Republicans select the date eight days before that (January 8).
If Nevada Republicans choose to go the caucus/convention route, then they may end up with a slightly later February date, but it only has the effect of shifting back the start laid out above by a week (because of the South Carolina Democratic primary on February 3).

All of this is to say that there are some knowns in the direction these states will move, but no clear specificity about where exactly they will hold their delegate selection events. The one complicating factor is what Democrats in both Iowa and New Hampshire do. If either or both defy national party rules and go along with Republicans in their states, then the pieces may not fall into place as easily as described above. 

Then there are the unknown unknowns as the process heads into 2023: all of the other states. Clearly, state law provides dates for most of the primaries, but that can change. 

2. Automatically problematic states.

In the last calendar update FHQ described a couple of noncompliant states; noncompliant due to quirks of state law. New York sunsets its presidential primary scheduling every four years. When the presidential election year ends, the presidential primary reverts to a first Tuesday in February position. That is the date on which the Nevada primary is now set. That is compliant for Nevada but not New York. But the process in New York is for the state legislature to set the date and allocation rules in consultation with the state parties during the session in the year before the presidential election. That will get done. The process just is not at that point yet. New York, then, looks noncompliant on February 6, but will ultimately not be either on that date or a risk to be noncompliant. 

Louisiana was in another predicament. 

In 2019, the state legislature shifted the date of the presidential primary from the first Saturday of March to the first Saturday in April for the 2020 cycle alone. Like New York, there was a sunset provision. Runoff elections in concurrent municipal elections would have conflicted with the Good Friday holiday in 2020, but not in 2024. After 2020, the Louisiana primary reverted to the prior first Saturday in March date. Such a position works in cycle when that first Saturday in March follows the first Tuesday. But in 2024, the first Saturday in March precedes the first Tuesday, the traditional opening of the window in which most states can conduct primaries and caucuses. 

That would have put the Louisiana primary in conflict with national party rules. However, the legislature in the Pelican state acted in 2021 to avert that problem, shifting back the primary to the last Saturday in March. [That is a permanent change; one that does not have a sunset for future cycles.] Louisiana, then, is back in compliance with national party rules for 2024.

3. Most of the states without official contest dates are caucus states or party-run primary states. Among that group, dates are rarely set in state party rules. Hawaii Republicans are the exception. Most state parties wait until the year before the presidential election to set a timeline for delegate selection in the plans they submit to the national parties for approval.

And there is discretion in state law with regard to scheduling some primaries as well. Georgia and New Hampshire, for example, were described above.  

4. Bear in mind that all of this is in flux. Some of these laws will change. In fact, there were a handful of states in 2020 and 2021 that explored different dates, but Louisiana was the only one that made any change. Well, and the DNCRBC put forth an early state proposal that reshaped that part of the calendar relative to recent past cycles. That all may give some indication of future maneuvering, but typically the bulk of that action will not occur until 2023. That is when the most urgency on states to schedule primaries and caucuses comes: after the national parties finalize their rules for the cycle and during the state legislative sessions that begin following the midterm elections. 

Part of the description above lays out a rosy picture for an orderly formation of the calendar the rest of the way. It may ultimately differ from what the DNCRBC has laid out for the pre-window, but the calendar could fall into place without much chaos. Due to the penalties in place in both parties, it is unlikely that any states outside of Iowa, Georgia, Michigan, Nevada, New Hampshire or South Carolina will jump into the early window (or beyond it). There may be threatening legislation in the other states, but it is unlikely to be successful. There may be movement by the remaining states, but it is likely to occur within the window. 

Regardless, state-level actors -- state parties and state governments -- will tell that tale now that the ball is in their court for 2023.

1 There was an asymmetry in that response as well. Republicans added the super penalty for states that opted to jump into January and February. Democrats, on the other hand, had been content to penalize rules breakers half their delegation during primary season while reserving the discretion to strip violating candidates of any delegates won in a rogue contest. The former penalty on states remains, but the latter has been strengthened for the 2024 cycle. 


Tuesday, December 20, 2022

Prefiled Bills Seek to Reestablish Missouri Presidential Primary

Yes, that's right. Reestablish

The effort in Missouri to eliminate the presidential primary failed in 2021, but was resurrected earlier this year as part of a state Senate substitute to a House-passed omnibus elections bill. And the impetus behind the push is, well, interesting. 

Both bills have been added to the updated 2024 presidential primary calendar


Monday, December 19, 2022

What Happens if States Don't Go Along with the National Party? [Annotated]

Meg Kinnard has a super helpful explainer up at the Associated Press about how parties and states set their presidential primary and caucus dates. There is good stuff in there. We need pieces like these. But the section added on the penalties applied to violating states by the national parties highlights the fact that some things just get lost in the oral and written histories of presidential nominations over time. 

A few things about that penalties section...

First, the DNC does have a penalties regime in place for rogue states. If a state jumps into the pre-window period on the calendar, then that state loses half of its delegates.1 But the DNC Rules and Bylaws Committee (DNCRBC) also has the discretion to increase that penalty. This is what was witnessed in Florida and Michigan in 2008. Both states would have been stripped of half of their delegates under the rules. But the DNCRBC, getting little to no help from either state party in Florida or Michigan or state Democratic legislators (some of whom had voted for the primary date changes that put both states in violation of the rules) opted to make an example of both in late 2007. Using that discretion, the DNCRBC stripped both states of all of their delegates. 

And yes, near the end of primary season in 2008, the DNCRBC did restore all of those delegates to both Florida and Michigan in a Memorial Day weekend compromise that held that all delegates from the two states to be seated but only retain half a vote at the convention. But that was not the end of the story. At the beginning of August 2008, Sen. Barack Obama (D-IL), the presumptive Democratic nominee, requested that the states' full voting rights be restored at the Denver convention later in the month. It was a request Obama's main opponent, Sen. Hillary Clinton (D-NY) echoed and the Credentials Committee at the convention honored.2 

It is this very tension that state Democratic parties in both Iowa and New Hampshire are now banking on for 2024. That is, the national parties are typically torn in this situation. On the one hand, upholding the rules -- or relenting -- has implications for future cycles (and state behavior in them). But on the other, at that time in the cycle -- the convention -- those same national parties and the nominees they are set to formally nominate are transitioning toward a general election fight where unity is key; unity that would be disrupted if one or more state delegations are not seated at the convention. The timing just is not right for national parties to truly and effectively crack down (unless maybe the state is a lost cause or a sure thing). 

Kinnard then moves on to 2012...

After the chaos of 2008, both national parties saw the need to right the ship for 2012. Despite the fact that both the DNC and RNC shifted back by a month the point on the calendar when non-carve-out states -- those other than Iowa, New Hampshire, Nevada and South Carolina -- could hold contests, Florida and Michigan jumped the queue into the pre-window once again. They were joined by a handful of non-binding Republican caucuses. 

The Republican rules covered the noncompliant Florida primary at the end of January and the similarly noncompliant Michigan primary at the end February. Both lost half of their delegates. The few non-binding caucuses skirted the Republican sanctions because no delegates were allocated directly based on the results of the first stage caucuses. But the penalties that were levied were upheld at the Republican National Convention in Tampa. 

Nothing was done on the Democratic side with Florida or Michigan in 2012 because the state Democratic parties in each shifted to caucuses during that cycle to avoid sanction from primaries moved by Republican-controlled state governments and because President Obama was seeking renomination without any serious opposition.

It is worth noting that Florida and Michigan Democrats in the state parties and state legislatures made good faith efforts to comply with the rules in 2012 in contrast with 2008. It is those sorts of efforts under Rule 21 that often help in avoiding sanction from the DNCRBC. 

Things then shift to penalties on candidates...

The description here would be, I suppose, closer to what the Republican National Committee does to candidates; ding them on speaking slots. But none of that is officially part of the RNC rules. And, in fact, it would be less an RNC move than a presumptive nominee's at that point. It is their convention after all, and the nominees-to-be tend to orchestrate things with assists from the national party. In that light, a move to bump a former opposition candidate to a poor speaking slot for campaigning in a rogue state months before would be more petty than anything.

But while the RNC does not have official candidate penalties, the DNC does. It has since the same 2008 cycle rules changes that also added Nevada and South Carolina to the pre-window lineup of states. But those penalties were never meted out because it was discretionary. The rules changes for the 2024 cycle alter that calculus. No longer may the party strip a candidate who has campaigned in a rogue state of all of their delegates won in that state; they shall do that. And beyond the strengthening of the rules there, the DNC has also made the definition of the what constitutes campaigning more inclusive. Campaigning now includes filing to be on a ballot in a rogue state or not working to remove one's name from a rogue state ballot (where filing is not required and ballot access is more automatic). The new rules have also granted the DNC chair the authority to take matters a step further should candidates not not abide by these rules. The chair can prohibit candidates in violation of the campaigning rules from presidential primary debates sanctioned by the national party. 

Those are deterrents with some teeth that have implications for the candidates before and during primary season, not just at the end of it. The idea is to keep candidates out of rogue states in order to neuter the violating contests in those states. Under those circumstances, states theoretically would not want to hold rogue contests because the lure -- candidates and attention -- would no longer exist (or would at the very least be greatly minimized). 

Is the DNC committed to penalizing Iowa and New Hampshire if either goes rogue? 

Ultimately that will be a question better posed in the summer of 2024 as the conventions approach. But the DNC is serious about the candidate penalties (see rules changes for 2024) and fully stripping states of their delegates -- beyond the baseline 50 percent sanction -- is also on still on the table. Such a prospect was raised in the conversations about the calendar rules at the DNCRBC meeting that adopted the new calendar proposal

Rules matter. So do rules changes. 

1 Republicans had the same 50 percent penalty for states in violation of the RNC timing rules in both 2008 and 2012. However, the party strengthened its penalty for going rouge for the 2016 cycle; something the national party has had in place ever since. The super penalty strips a bigger state of all but nine of its delegates and smaller states of all but six delegates.

2 Honestly, this should not count against Kinnard. I had trouble enough tracking down information to even confirm my recollection of events. FHQ has some oblique references to the moves here and also here. Wikipedia has a footnote which leads to a piece on the DNC Credentials Committee vote, but sometimes one just has to go straight to the roll call vote on the nomination which shows a full Florida delegations of 211 and likewise a 157 delegate Michigan group.


Sunday, December 18, 2022

New Hampshire Congressional Delegation Defends First-in-the-Nation Presidential Primary

And folks, why would they not? 

It is completely natural for New Hampshire Democrats like Sen. Hassan, Sen. Shaheen, Rep. Kuster and Rep. Pappas to defend this particular piece of political real estate. Every New Hampshire politician, regardless of party, has done so for at least the half century of the post-reform era. But it is worth considering -- on this side of the decision by the DNC Rules and Bylaws Committee (DNCRBC) to strip Iowa of its position altogether and shunt New Hampshire's presidential primary into the second position alongside Nevada -- whether the old arguments have grown stale. New Hampshirites will likely argue no, but 2024 represents the first cycle that New Hampshire's position in the pecking order has not been directly protected in the Democratic process since 1980 (and the first time in the post-reform era that its first-in-the-nation status has not been at least indirectly protected).

Things are different. But the arguments have remained largely unchanged from past cycles when the primary came under threat. 

Retail politics
The congressional delegation starts by making the claim that the New Hampshire presidential primary occupying the first position makes both the country and democracy stronger. That having given power to voters and not party bosses in the process over a century ago has allowed the state to nurture and harness a certain participatory culture. In combination with the small size of the Granite state that all makes retail politics maximally possible. 

Sure, it takes time to develop a culture like that, but retail politics is possible elsewhere. In South Carolina, for instance. The Palmetto state is bigger than New Hampshire, but it is not bank-bustingly bigger. Candidates can meet face to face with voters, hear their concerns cheaply and easily, and be tested just the same. South Carolina Democrats have been a part of the pre-window since the 2008 cycle, and no, that is not a century's worth of experience, but it offers an electorate that is more diverse than what the Granite state has to offer. And it is debatable whether an unrepresentative primary is better for the country or democracy in a narrow or broad sense. The DNCRBC has placed a bet that diversity matters in the Democratic (and democratic) process. 

Another part of the New Hampshire primary culture that the four member congressional delegation leans on is blackmail. That will be read in a negative light, but it is not intended in that way. Look, New Hampshire decision makers across the board have taken a "protect the first-in-the-nation position at any costs" approach for a very long time. Decision makers in any other state under the same conditions would do and would have done the same thing that folks in New Hampshire have been doing for the last 50 years. 

But part of that effort has definitely been blackmail through organizing candidate boycotts when other states have threatened to encroach on the New Hampshire primary's primacy. The threat to candidates has always been some form of "pledge that you will not campaign in the aggressor state or you are done here in the Granite state." In other words, cross New Hampshire and prepare to have your presidential aspirations kneecapped. That happened in 1996 in a standoff with Delaware and again in 2012 when Nevada Republicans tried to carve out an early spot once pushed there by a rogue Florida primary.

The problem in the 2024 cycle is that the DNCRBC has turned the tables on New Hampshire. By locking the presidential primary in the Granite state in the second position behind South Carolina in the rules, a New Hampshire shift would open the state up to penalties. But more importantly, candidates who campaign in a potentially rogue New Hampshire would then not only be stripped of any delegates won in the state, but also be subject to possible prohibition from candidate debates for campaigning in the state.

Of course, the New Hampshire congressional delegation does not broach the topic of unofficial candidate boycotts. That is not the particular blackmail they bring to the table. Instead, they raise the prospect that New Hampshire Republicans will use state Democrats' supposed negligence against the state party and lure crucial independents into the still-first Republican presidential primary. Furthermore, they argue that those same independents may stick with the GOP in a general election, potentially tipping the balance against Democrats in a narrowly divided state, and by extension, possibly costing the party Senate control and/or electoral votes. 

All of that is true. Those things could happen. But it could also be that President Biden seeks reelection, ends up running largely unopposed, and New Hampshire independents flock to the competitive Republican presidential primary anyway. Is it a gamble for the president and the DNC to potentially irk a sliver to a lot of New Hampshire voters by coming down hard on the state Democratic Party for fighting to maintain its traditional position? It undoubtedly would be if it is not already. But are independents, Democratic-leaning or otherwise, going to vote for a Republican nominee in the Trump mold (or Trump himself) over Biden because of the primary? The answer is maybe (or if one is in New Hampshire, YES!). But that seems to be a gamble the president and those around him are willing to take in this fight. There are very few scenarios where New Hampshire's four electoral votes serve as the tipping point in the electoral college. It is possible although less probable than other, bigger states. And neither New Hampshire US Senate seat is up until 2026. Is that gamble worth it? Time will tell that tale. 

The Nevada pairing
Dipping back into the well of retail politics, the congressional delegation also draws attention to the injurious impact that not only the New Hampshire primary not being first, but pairing it with the Nevada primary will have. That is not wrong, but the group missed an opportunity to point out a major drawback in the president's calendar proposal. It is not just that the New Hampshire/Nevada pairing will put a cross-country strain on campaigns, but that three contests (including a leadoff South Carolina primary) in the proposed calendar's first four days turns a typical slow build up through small states into a more nationalized event. 

The New Hampshire/Nevada pairing would have an impact on the retail politics that the process has typically known, but three contests on top of each other as proposed would further hamper face-to-face contact with voters and have implications for how the field of candidates winnows. The winnowing issues are less problematic if Biden runs for reelection and is largely unopposed. But setting the precedent of an early calendar cluster in 2024 may lay the groundwork for a repeat of the untested experiment in 2028 when it may matter substantially more in a competitive environment.

State law
Finally, the New Hampshire congressional delegation defends the state's first-in-the-nation primary with the trump card decision makers in the state ultimately end up pulling every time a threat arises: state law. There is a state law. It does require the secretary of state to schedule the New Hampshire presidential primary for a position on the calendar at least seven days in advance of any other similar contest. And lest one forget, the state law also codifies how the parties are to select and allocate delegates based on the results of the primary. So while it is tempting to argue that the secretary of state is the actor bound by the law, the state parties are tied to it as well. 

Granted, it is also true that the courts have continually sided with political parties under free association grounds when these sorts of conflicts arise between law and party rules. The New Hampshire Democratic Party could fight elements of this law as well. But in so doing, the party would further undermine the statute and the position of the New Hampshire presidential primary on the calendar. Plus, the party can allocate delegates under DNC rules, but it cannot unilaterally change the date of the presidential primary. That decision is out of the party's hands. 

And that is the predicament New Hampshire Democrats find themselves in on this issue. For the first time their first-in-the-nation primary is neither directly nor indirectly protected by DNC rules. And their arguments come down to basically a state law that could be challenged in court by the state party (if it did not want to further threaten the primary's position) and a variation on the blackmail New Hampshire actors have made for half a century. The conditions are different for 2024 and the arguments look different in that light.

The New Hampshire presidential primary will be first. But it will be first in the Republican process. The secretary of state will see to that. But the question remains whether New Hampshire Democrats will break in the unprecedented standoff with the DNC.


Friday, December 16, 2022

Democrats Mull Changes to the 2024 Calendar?

Which Democrats?

According to The Hill, there are "vocal concerns about South Carolina from all corners of the party." But the tell that these are not serious concerns is in the supposed compromise states being offered as substitutes for the newly tabbed first state in the 2024 pre-window lineup. 

North Carolina?

Democrats in the Tar Heel state did not even apply for a waiver when the process was opened up by the DNC Rules and Bylaws Committee (DNCRBC) earlier in 2022. If one thinks South Carolina Democrats -- a state party that has been knowingly and willingly involved in the pre-window period of the calendar for four cycles now -- were surprised by being moved in President Biden's proposal to the first slot, then imagine how North Carolina Democrats would feel at having the honor fall in their laps. Any initial elation would quickly subside, overtaken by the need to actually prepare for being first.

Specifically, North Carolina has a near Republican supermajority in the General Assembly, where any effort to move the presidential primary would start. In theory, Republican legislators may like a more prominent position on the calendar. But in practice, none of them would like seeing the state's Republican delegation slashed by more than 80 percent. State Democrats cannot work around that roadblock. Nor can the national party.


FHQ has discussed this in depth elsewhere, but Georgia has a Republican obstacle of its own. Brad Raffensperger, Republican secretary of state in the Peach state, has signaled that his office will not jeopardize either party's full slate of delegates and has no interest in taxing election workers across two presidential primaries (nor for adding the costs of a second presidential primary to accommodate the DNC plan).

Yes, Georgia was a part of the proposed Biden pre-window slate, but it was always wishful thinking that the national party, much less Georgia Democrats, could make that change happen given the existing constraints. It was an aspirational move with little downside. "Hey, we tried to add Georgia as an early state, but local Republicans stood in our way," is not a bad argument to make in a closely divided state. By itself, that probably will not move many votes, but as part of a larger narrative about Republican obstruction it might. 


Well, at least Nevada makes some sense. Heading into the DNCRBC meeting in early December, the Silver state seemed to be vying for the top slot with New Hampshire and then ended up getting lumped into the same second position alongside the primary in the Granite state. 

But Nevada, like North Carolina and Georgia above, has potential Republican opposition to any move. The new governor stands in the way of any change to the date of the primary. Moreover, the contest is already scheduled for February 6. South Carolina could be moved back in the order (along with New Hampshire) to make way for the Silver state to go first. 

That makes some sense (and was probably why Nevada garnered so much "first" chatter in the first place).

But here's the thing: the DNC cannot signal to one important constituency (African Americans) that they are moving a state (South Carolina) to better calibrate their collective voice in the process and then take it back without some backlash. And that backlash would likely be far greater than the "concerns" that are quietly making their way around some parts of the broader Democratic Party coalition. 

Folks, this is politics. Any move, significant like this one or otherwise, is going to create perceived winners and losers. After all, there is already a burgeoning cottage industry speculating about what these calendar changes may mean for candidates in 2028! There are winners and losers in this calendar proposal and there is definitely backlash to the decision.

Look, it was clear in the immediate aftermath of the DNCRBC vote to adopt the president's proposal that there was opposition to South Carolina being granted the first slot on the 2024 primary calendar. And it has become even clearer in the time since that detractors of the plan are going to use the period between that December 2 vote and the February DNC meeting -- the one that will vote on ratifying the plan -- to gin up if not opposition, then an alternative. But so far all the opposition has done is throw stuff at the wall with the hopes that something will stick. Nothing has. And that is mainly due to the fact that those who stand in opposition to the proposal have yet to grapple with the realities of this process. 

It is fine to throw states out there that are more diverse or more competitive (in a general election) than South Carolina is. The DNCRBC has conducted a process over the course of much of 2022 that already did that. It considered all the states that the Biden proposal included. But one additional factor the DNCRBC weighed that is completely lacking in the sturm and drang of complaints thus far was feasibility. As in, how feasible is it that any given state is actually able to move into a particular slot? 

Georgia and North Carolina? Nope.

Nevada? As described above, maybe.

And until detractors of the president's proposal wrestle with that reality, their complaints are never going to be taken seriously. 

There is a weak point to the president's proposal that many are missing. 

Another reason neither Georgia nor North Carolina are workable in the first position -- and The Hill piece speaks to this to some degree -- is how big and expensive each would be compared to past early states. Both parties still seem to value what the 2013 GOP autopsy called the on ramp to bigger states and multi-contest dates. Both parties continue to hold to notions of retail politics and the little guy having a chance to compete with those who have vast to near-unlimited resources.1 And both Georgia and North Carolina would break with that principle. 

But if anything was slapdash about the calendar proposal that emerged from the December 2 DNCRBC vote it was not South Carolina, but the early cluster that was created by a compromise.

The initial proposal from the Biden team was different than what was voted on by the panel:
Tuesday, February 6: South Carolina
Tuesday, February 13: Nevada/New Hampshire
Tuesday, February 20: Georgia
Tuesday, February 27: Michigan
But because the Nevada primary was already scheduled for February 6 and prospects for movement away from that position dim, the compromise was to move the South Carolina primary to Saturday, February 3 and shift everything else but Michigan up a week. 

But that turned a plan that called for three small-ish state contests in eight days to three small-ish state contests in a four day span. That may seem like a minuscule difference, but it has the effect of creating a cluster of contests that equate to something akin to the Georgia or North Carolina in the first spot. And this was raised as a concern among DNCRBC members in the period before the vote was taken. Both Carol Fowler (SC) and Scott Brennan (IA) brought up how this cluster of contests sandwiched into a small window to start the calendar may negatively impact how well the party adheres to the value of giving all candidates a chance. 

That is no small thing and no doubt would impact candidate strategy and how the calendar winnows candidates. If anything happens between now and when the DNC votes on the proposal passed by the DNCRBC it may be to tinker some with that cluster of contests.2 But it is more likely that South Carolina gets nudged a little earlier to account for the injurious impact the proposed cluster would have than being removed from the top slot altogether as detractors appear to want. 

That, and New Hampshire is likely to jump to the head of the queue anyway. But that is a story that will play out as 2023 progresses.

1 That may or may not be obsolete in an environment where invisible primary fundraising allows candidates to run practically everywhere even before Iowa and New Hampshire results have been factored into the equation. A small-time candidate would have an incredibly difficult game of catch-up to play if the plan is to initially rely on early wins -- either outright or relative to expectations -- to jumpstart a campaign. In other words, there has to be some measure of viability demonstrated before voting starts. [Incidentally, the Democrats' debate inclusion process in 2020 helped to repeatedly make that viability point as the invisible primary wound down.]

2 One of the near certainties is that neither Georgia nor New Hampshire will meet the January 5 conditions to actually be granted a waiver to even be in the pre-window. That would have the effect of clearing out the beginning of the calendar to some extent.