Tuesday, February 28, 2023

Maryland Legislative Leaders Signal Presidential Primary Change is Forthcoming

Last week, Baltimore leaders called for legislative action to resolve a conflict between the 2024 presidential primary in Maryland and the observance of Passover. This week, the leaders of the General Assembly in the Old Line state responded. 

In a joint statement House Speaker Adrienne Jones (D-10th, Baltimore) and Senate President Bill Ferguson (D-46th, Baltimore City) said:
"As State leaders and as legislators, we have been intentional in our effort to pass election laws and create policies that remove barriers to voting. A primary election date that unintentionally coincides with the Passover holiday would prevent thousands of Marylanders from engaging in their fundamental right to vote. We will work with the State Board of Elections and local election officials to find a more appropriate date."
Maryland danced around spring holidays in 2016 as well, and may not be the only state with a primary at the end of April that explores a change for 2024.

Sunday, February 26, 2023

Idaho House Passes May Presidential Primary Bill

After being moved out of committee with a Do Pass recommendation earlier in the week, HB 138 was quickly considered on the floor of the Idaho House on Friday, February 24. 


Late April Primaries Will Conflict with Passover in 2024

Baltimore officials are calling on the Maryland General Assembly to change the date of the 2024 presidential primary in the Old Line state. The April 23 date conflicts with the Passover holiday. 

Such is the peril of scheduling spring primaries. But some states have shifted elections around in the past to avoid these sorts of conflicts while others have not. Maryland, in fact, made a double move during the 2016 cycle, originally proposing a one-week delay to avoid Easter in early April and then an even later push with Passover during the following week. However, Maryland was not the only state. Hawaii, Louisiana, New York and Wyoming have all scheduled around holidays in the last three cycles. 

Of course, Maryland is not alone in holding a presidential primary on April 23 in 2024 as of now. Delaware, Pennsylvania and Rhode Island also have contests occupying that slot on the calendar. The Connecticut primary is also scheduled in the Passover window on April 30. Similar efforts in those states may be forthcoming. Yet, all four conducted primaries in 2016 that overlapped with the observance of Passover. And Maryland did too during that cycle. The amendment was added to the one-week delay proposal because that would have put the certification process for the primary at odds with the holiday. Election officials would have had to work during the holiday.

There is already active legislation to move the Pennsylvania primary into March, but the motivation there is merely to hold an earlier contest. One of the byproducts of that change would be that the primary in the Keystone state would avoid the holiday conflict. Another bill in New York would schedule the presidential primary in the Empire state for that same fourth Tuesday in April date, in the Passover window. 

But it remains to be seen if legislation will come forward elsewhere to alter primary dates in any of the other states with conflicts.

Saturday, February 25, 2023

Hawaii Super Tuesday Primary Bill Stymied in House Committee

The Hawaii state House version of legislation to create a presidential primary and schedule it for Super Tuesday met a roadblock in the Judiciary and Hawaiian Affairs Committee (JHA) on Friday, February 24. 

Testimony was taken in a hearing on HB 1485, and unlike the committee discussion on the Senate companion, the House bill revealed an internal squabble among the Hawaii Democratic Party over the potential change. While the state party supports the transition from a party-run process to a state-run primary -- both the state party chair and national committeeman spoke in favor of the move in the hearing -- the Stonewall Caucus within the party objected. At issue was not the party-run to state-run change, but rather, the possible shift from a closed caucus or party-run primary process to the open primary called for in the Hawaii constitution. That constitutional provision conflicts with a stated preference for a closed process in the Hawaii Democratic Party constitution. 

But that intra-party disagreement was not what derailed HB 1485 in committee. After all, all Hawaii officials are nominated in the very same open primaries. No, instead it was a technical issue that will bottle the legislation up in committee on the House side and likely kill it. 

On the recommendation of committee chair, Rep. David Tarnas (D-8th, Hawi), JHA deferred the measure because it missed a just-passed deadline for bills to have been moved out of their initial committees. HB 1485 came to the panel with no stated appropriation, but the Hawaii Office of Elections estimated the cost to the state at $2.7 million, something that would cause it to be re-referred to the Finance Committee. That need for a secondary committee referral triggered the lateral deadline.

However, HB 1485 being blocked does not kill the effort to create a presidential primary election in Hawaii this session. It just kills the House version. The Senate companion legislation, the amended SB 1005, made it through its first committee ahead of the deadline and will move to Ways and Means where the price tag of the proposed stand-alone primary will be debated. It is that bill -- the Senate companion -- that will now become the vehicle for the Super Tuesday presidential primary effort. 

No hearing has been scheduled for SB 1005 in Senate Ways and Means as of now.

Thursday, February 23, 2023

Idaho Committee Advances May Primary Bill

The Idaho House State Affairs Committee made quick work of legislation to move the presidential primary in the Gem state to May on Wednesday, February 22. 

The panel advanced HB 138 to the House floor with a Do Pass recommendation. Bill sponsor Rep. Dustin Manwaring (R-29th, Pocatello) made the case to the committee that consolidating the stand-alone March presidential primary with the primaries for other offices in May would save the state $2.7 million. And those savings were something Idaho Secretary of State Phil McGrane (R) reiterated in supporting the legislation according to the Idaho Capital Sun.
“As I came into office and began working on the budget for the office, this was one of the biggest things that stood out,” McGrane told legislators Wednesday. “So we started asking the question on what is the utility of what we are trying to do? I think Rep. Manwaring framed it very well — we just haven’t seen the return on investment.”
Indeed, it was always going to be a difficult proposition to draw presidential candidates to Idaho for a March primary that often got overshadowed by other, more delegate-rich contests. But with Michigan already having vacated that second Tuesday in March date for a spot in the pre-window on the Democratic party calendar, and Hawaii potentially shifting to a primary a week earlier, Idaho stands to actually be able to draw Republican candidates in March 2024. That is especially true in light of the fact that neighboring Washington also has a primary on the same date and will be the biggest delegate prize on a surprisingly thin date so early on the calendar. There would be more delegates at stake in the Pacific and Mountain northwest than in Mississippi, the only other state currently occupying the second Tuesday in March. 

But those considerations seem to have taken a back seat to the cost considerations and the likely turnout gain for the May primary even with presidential primary that may fall after the nomination has been wrapped up. 

As noted in the previous post on this bill, it still is not clear that this legislation builds back the same legal infrastructure that existed in 2011 when the presidential primary was wiped from the May primary portion of the electoral code and eliminated it altogether. The bill that created the separate presidential primary in 2012 (for the 2016 cycle) did not affect the May primary. However, that appeared to be of little concern to the State Affairs Committee on Wednesday. And it remains to be seen if that will be problematic to members on the floor of the state House. 

See more on our political/electoral consulting venture at FHQ Strategies. 

Rogue States Will Be the Norm as Long as the Parties Diverge on the Calendar

2024 is going to be different.

A look back to 2008
For the first time since the 2008 cycle, there will be a shake up to the beginning of the presidential primary calendar in 2024. And just as was the case fifteen years ago, it was the Democratic Party that instituted the changes

Then as now, the DNC sought to diversify the pre-window period on its calendar, augmenting the traditional Iowa/New Hampshire start with the addition of contests in two more states. Just as was the case during 2022, the DNC Rules and Bylaws Committee (DNCRBC) invited state parties to pitch the panel in 2006 on why their state contest should be added to the early calendar in the upcoming primary season. Much of the focus centered on adding smaller states but also providing some balance in terms of region and demographics. And finally, part of the calculus also honed in on the idea of adding another caucus state in between Iowa and New Hampshire and another primary thereafter but before Super Tuesday. 

There are more than a few parallels between those criteria and the set used in 2022 by the current-day DNCRBC. But there are some differences as well. Democrats were the out-party in 2006, and parties in the White House tend to do less tinkering. Also, Democrats may have been a bit shrewder in their choices of additions for 2008. South Carolina was already a state that had carved out a spot in the early Republican calendar over the preceding quarter of a century. And Nevada was a caucus state at the time. Both featured state parties that made the primary/caucus scheduling decisions rather than state governments. Unlike in a situation where the state government sets a primary date, a move by national Democrats to add South Carolina and/or Nevada to their early calendar for 2008 did not necessarily drag Republicans in those states into the mix. 

Of course, Palmetto state Republicans already had a presidential primary that was an established part of the early Republican calendar. And Nevada Republicans joined the fun with January 2008 caucuses that skirted Republican National Committee (RNC) penalties. There was no RNC rule that required states in 2008 to bind national convention delegates based on a statewide presidential preference vote. Silver state Republicans and those in Iowa, for that matter, conducted a preference vote during precinct caucuses, but that had no direct bearing on the delegates chosen to attend the next stages of the caucus/convention process, nor ultimately those delegates who represented either state at the national convention. 

But it worked. Perhaps it was dumb luck, but it worked. Nevada and South Carolina, with minimal (although not nonexistent) implementation headaches, became not just established but institutionalized parts of the early calendar in both parties' processes. And that was despite the fact that both were flip-flopped in the other party's order; South Carolina third and Nevada fourth in the Republican process and the inverse on the Democratic side.

How 2024 is different and how that increases the odds of rogue states
That is a different story than the one that has played out in the lead up to when the latest primary calendar decisions were made in 2022-23. And it is different for a number of reasons. 

First, Democrats entered the review process for the 2024 rules and the primary calendar saying that no early calendar slots were guaranteed. All four (or five) were up for grabs. That meant that Iowa, New Hampshire, Nevada and South Carolina had to make their cases before the DNCRBC just like every other interested state party. And for the first time since specific carve outs were added to the DNC rules for Iowa and New Hampshire for the 1984 cycle, Iowa, and likely New Hampshire, will have no waiver from the national party to be a part of the pre-window lineup. That necessarily creates two potential rogues states in one fell swoop.

Second, recall the background on the selection of South Carolina and Nevada in 2008. In both situations, it was state parties making the decisions on where primaries or caucuses in the Palmetto and Silver states ended up on the calendar. South Carolina obviously remains the same as it was in 2008 (with respect to the decision makers). That is part of the reason South Carolina Democrats got the nod to go first for 2024 in the Democratic process. Meanwhile, Nevada, under Democratic control in 2021, shifted from party-run caucuses to a state-run presidential primary. That move mirrors a push by the national party away from caucuses and toward state-run primaries. 

But while the national party has advocated for more state-run processes in order to maximize participation, that has limited the DNC's options in terms changing its calendar without potentially creating problems for Republicans in their process. Those problems are best highlighted by the Democrats' insertion of Michigan into the pre-window, an act that puts Michigan Republicans in the crosshairs of the RNC rules. Granted, this is a two-way street. The RNC decision to stick with the traditional Iowa-New Hampshire-South Carolina-Nevada lead off has impacted Democrats. It has created potential problems in Iowa and New Hampshire with both state parties, leaning on existing state, signaling they are likely to go rogue and hold contests concurrent with the Republican in their respective states. And unless the DNC tweaks its approach to Georgia, the Peach state primary will not be a part of the pre-window at all. Georgia definitely will not go on February 13 as planned.  

Another part of the 2024 picture that differs from 2008 comes from who is doing the rules tinkering. It is unusual for an in-party to so fundamentally reshape a seemingly ingrained part of the process. But what that points to is how much sway the incumbent president tends to hold over the system that will renominate him or her. Typically an incumbent is content to move forward with a nomination system that largely mimics the one that got him or her to the White House in the first place. That may produce changes from a nomination cycle to the renomination cycle, but they usually are not big changes. 

But what if they were? The 2024 cycle is testing that. It is the incumbent president who is testing that. Indeed, without the input of the president on the 2024 primary calendar, the DNCRBC seemed to be heading in the direction of something that would have knocked Iowa out altogether, bumped the other three early states up a notch (maybe with some additional shuffling) and added Michigan to the end of the pre-window as a midwestern replacement for the caucuses in the Hawkeye state. President Biden had something else in mind and the DNCRCB and ultimately the full DNC fell in line

And that has implications for both parties' calendars. More importantly, that has implications for how orderly those calendars are in coming together. Questions remain on both sides. 

Finally, while all of the above seemingly points the finger squarely at the Democrats as instigators in all of this, Republicans have played a role as well. Necessity is the mother of invention and, in fact, brought the national parties together in the time after the chaos of the 2008 calendar. Both saw value in not starting the process in January (or for not allowing states other than the first four to conduct contests in February). And they informally brokered a deal. FHQ often cites that and uses the "informally brokered" language, but here is what that meant in the rules. 

In the amended rules for the 2012 cycle, the RNC added language that created a specific carve out in Rule 15(b)(1) for Iowa, New Hampshire, Nevada and South Carolina. In the previous cycle (2008), only New Hampshire and South Carolina had those exemptions. [Iowa and Nevada did not need them. Neither allocated any national convention delegates to the national convention in their precinct caucuses.] That aligned the Republicans with the Democratic pre-window calendar for the most part. Again, recall the South Carolina/Nevada flip-flop between the parties.

Moreover, the RNC added one other rule, Rule 15(b)(3):
If the Democratic National Committee fails to adhere to a presidential primary schedule with the dates set forth in Rule 15(b)(1) of these Rules (February 1 and first Tuesday in March), then Rule 15(b) shall revert to the Rules as adopted by the 2008 Republican National Convention.
It is not common for one party's nomination rules to cite the other party. But for 2012, the basic outline of the Republican calendar hinged on what national Democrats did. Basically, if the DNC did not adopt rules that called for a February 1 start to the calendar for the early states and a first Tuesday in March start for every other state, then the RNC would revert to the rules it used in 2008. That would have snapped back to the RNC using a calendar that allowed all but the exempt states to start in February pushing Iowa, New Hampshire, South Carolina and Nevada into January. Yes, that happened anyway because Florida broke the rules again in 2012. But that was not a function of this brokered deal between the parties. It was because the RNC penalties were not severe enough.

However, once the RNC got their penalties right in 2016 with the addition of the super penalty, that was it. That was the high-water mark for cooperation between the parties. And the agreement held through the 2020 cycle or until the Democrats walked away for 2024. 

The break was about more than just the Democrats going their own way with a fundamentally different early calendar lineup for 2024. The truth is there was not much for them to walk away from. The dialog that had developed out of that deal brokered fifteen years ago gradually declined over time. It happens. And it happened because the players involved changed. Leadership on the RNC Rules Committee changed again in 2017 and interest on the Republican side mostly died with it. There was still Republican interest in the dialog but it was no longer coming from players who were directly involved on the RNC Rules Committee. 

And that lack of communication was something DNCRBC co-Chair Jim Roosevelt noted in the December meeting when the 2024 calendar plan was initially adopted by the panel. In responding to concerns from Scott Brennan, Iowa DNC and DNCRBC member, about the potential for a split between the two national parties on Iowa's calendar position leading to chaos, Roosevelt said that the Republicans were not open to coordinating this time. And that has been true for the last two cycles.

That matters. It is a part of the fuller picture. And as long as there is no (even informal) coordination on the matter between the two national parties, the more there are going to be rogue state situations like the ones that are likely to mark the 2024 cycle in Iowa, Michigan and New Hampshire (if not Georgia).

But what even is a rogue state?
If Iowa or Michigan or New Hampshire are rogue in 2024 in one party's process or another, then that is different from the calendar rogues of the recent past. Those three states are unlike Florida and Michigan in 2008 and unlike Arizona, Florida and Michigan in 2012. State actors in Arizona, Florida and Michigan made decisions to break the rules. State laws were changed ahead of 2008 to push Florida and Michigan into noncompliance, and they were not changed before 2012 to comply with the new (and later) calendar start codified in both parties' rules for that cycle. 

Contrast that with the situations in Iowa, Michigan and New Hampshire for 2024. Republicans in Iowa and New Hampshire and Democrats in Michigan all have the blessings of their national parties to conduct early contests next year. Their counterparts across the aisle do not. And in the case of Michigan Republicans and New Hampshire Democrats, they have no real recourse if they want to use the state-run primary. If partisans on the other side move or keep the primaries where they are under state law, they are stuck to a large degree. 

That is a different kind of rogue. That is a rogue that is created by the discrepancy between the two national parties' presidential primary calendars. It forces the state parties in that situation to either take the penalties or to pay for their own party-run process (which is a penalty in its own right). But as long as the calendar divide exists -- and especially if Democrats continue to reexamine and reshuffle their early calendar lineup -- then this type of rogue state is likely to continue to cause problems on one side or the other. And that says nothing of the possibility of Republicans following suit and shuffling their early calendar in cycles to come. 

As of now, there is little evidence that there is any movement from other states to go rogue in the old fashion. In West Virginia, there are bills to create a separate presidential primary and schedule it for February, out of compliance with both parties' rules. But that is it. There is no concerted effort to rush the gates and go early against the rules. However, just because there is no conventional rogue activity now, or even in this cycle, it does not mean that states will not try to exploit the calendar differences between the two national parties in the futures should they persist. 

It is that sort of unraveling of the steady state informally coordinated between the national parties a decade and a half ago that should trouble decision makers on the national level.

Tuesday, February 21, 2023

May Presidential Primary Bill Gets First Committee Hearing in Ohio House

The House version of an Ohio bill to move the Buckeye state presidential primary from March to May came before the Government Oversight Committee on Tuesday, February 21.

HB 21 sponsor, Rep. Daniel Troy (D-23rd, Willowick) introduced the measure and advocated for the date change before the panel, a committee on which three of the bill's co-sponsors sit. Troy did not break any new ground, leaning on the same arguments he has made publicly:
  • Candidates for all federal, state, and county offices will not have to be filing petitions for nomination to be on the November ballot, almost 11 months prior to that actual election in the preceding calendar year. 
  • Voter confusion will be minimized with a consistent date every spring (and assuredly better weather). 
  • With the redistricting process looming again, it provides more time to get all the ducks in a row before filing deadlines. 
  • It will shorten the election season and potentially allow more time for governing and less time for partisan politics.
  • And all of that went over well enough. It seemed. There were few tea leaves to read in this the bill's first hearing, but when the floor was opened for questions from the rest of the committee, only silence followed. Rep. Troy could only respond, "I guess that means it's a good bill."

    To which committee chair, Rep. Bob Peterson (R-91st, Fayette) responded, "Unless it's a bad bill."

    And that was it. Even with a bipartisan trio of co-sponsors on the 13 person committee, HB 21 likely faces an uphill climb among Republicans in control of enough of the levers of state governmental power to derail a move back on the presidential primary calendar ahead of a cycle in which the GOP will have a competitive nomination battle. 

    Monday, February 20, 2023

    Michigan Republicans and 2024. It was a mess before the chair vote.

    Michigan Republicans have elected a new chairperson to lead the state party.

    Add another variable to caldron already frothing at the brim on a low boil in one of 2024's biggest battlegrounds. Great Lakes state Republicans have answered the question of who will lead them into the next election cycle -- Kristina Karamo -- but that does little to answer a number of other questions that hover over the party with respect to Michigan's place in the 2024 Republican presidential nomination process.

    What do Michigan Republicans do? How does the party approach 2024?

    The presidential primary route
    National Democrats, of course, recently elevated Michigan into the pre-window period on the 2024 primary calendar for a nomination process that will likely see an incumbent president run with only nominal competition. And Michigan Democrats, in unified control of state government after the 2022 elections, complied with the national party's proposed exemption for an early presidential primary, moving the primary with Republicans in the state legislature unified in opposition. 

    And it is not that Republicans in the Michigan legislature (or outside of it) necessarily oppose an earlier presidential primary. It was a Republican, after all, who introduced legislation in late 2022 to move the Michigan presidential primary into February, and in passing it through the Republican-controlled state Senate, all but one member of the caucus backed the change. That bill failed, a casualty of the end of the legislative session. But the Republican support for it then, and subsequent flip to opposition in 2023 when Democrats controlled the state government, highlight both a Republican desire to hold an earlier presidential primary and a fear of having the Republican National Committee (RNC) levy the super penalty against state Republicans in 2024n as a consequence of going too early.

    However, that does not mean that the door is closed on a Republican presidential primary in February. First, the presidential primary date change may not even take effect in time for the 2024 cycle. Without Republican support for the legislation that shifted the primary into February, the bill was denied the supermajority it needed to take immediate effect. Unless Democrats wrap up their legislative business for the year and adjourn the 2023 session before December, then the change would not take place until after the proposed February 27 primary date. The primary would take place on March 12 -- the second Tuesday in March -- and Republicans in the state could have a compliant presidential primary.

    Second, even if Democrats in the legislature complete the session 90 days before the proposed February primary in order for the new act to take effect in 2024, it is not clear that Republicans could not have a penalty-free primary at that time. If that is what Great Lakes state Republicans want. Granted, that decision does not come down to simply what Michigan Republicans want.  

    Here is how that would work. 

    Unless, in the unlikely event that, Michigan Democrats in the legislature work with Republicans to create a second and compliant Republican presidential primary, then there will be just one presidential primary in Michigan in 2024. Assuming the primary date change does take place for 2024, then the election would fall on February 27. That is before March 1 and would, thus, conflict with RNC rules on the timing of delegate selection events. In turn, that would seemingly trigger the super penalty and cost Michigan Republicans more than three-quarters of their national convention delegates, a fact Republican legislators have offered as justification for their opposition to the date change.  

    Michigan Republicans begin to resemble New Hampshire Democrats in that scenario: a party stuck between a primary scheduled by the opposing party and national party rules that would penalize them for utilizing the only option available to it. But those same RNC rules that would penalize a party for using a rogue primary also provide state parties conflicted in such ways with an out. 

    Under RNC Rule 16(a)(1), "[a]ny statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention..."

    This was the provision added to the RNC rules ahead of the 2016 cycle to tamp down on the number of states that in 2012 had either non-binding caucuses or beauty contest primaries that preceded caucuses that were then used to allocate national convention delegates in the presidential nomination race. All states and territories have complied with that rule since it was added. This Michigan situation would be the first to test it if the state party was forced to hold caucuses to avoid national party penalties. But holding caucuses would necessarily have to fall after the point on the calendar where the Michigan presidential primary would be scheduled in order to comply with the RNC rules on timing. Yet, statewide votes on presidential preference must be used to bind and allocate delegates. 

    See the conundrum? 

    Michigan Republicans would end up stuck in sort of feedback loop: forced to use a primary's statewide presidential preference vote to allocate and bind delegates, but one scheduled by Democrats in the state at a point on the calendar that would dock Michigan Republicans some of those delegates for violating RNC rules on timing. Of course, there is a rule for that, Rule 16(f)(4): 
    The Republican National Committee may grant a waiver to a state Republican Party from the provisions of Rule Nos. 16(a)(1) and (2) where compliance is impossible and the Republican National Committee determines that granting such waiver is in the best interests of the Republican Party.
    So, if Michigan Republicans wanted to use the February 27 primary and the RNC determined that that was in the best interests of the party, then a waiver could be granted. And it could be in the best interests of the party for there to be a primary in a battleground state that would likely draw more interest from and energize more voters than any alternative caucus/convention process. That is part of the same rationale that led the DNC Rules and Bylaws Committee to reconsider the early primary calendar lineup for the 2024 cycle. 

    That is noteworthy. 

    Michigan Republicans could potentially use a February 27 presidential primary and NOT be penalized by the RNC. Republicans in state government have done everything in their power so far to prevent majority Democrats from making the change to the presidential primary date and have lobbied to no avail (to this point) for a second, compliant presidential primary for Republicans. Compliance, if the primary is the preferred allocation route for Michigan Republicans, is impossible. A waiver to avoid penalties is not.

    The caucuses route
    But what if Michigan Republicans determine that they do not want to use the primary? What if, despite everything described above, the Michigan Republican Party prefers to utilize a caucus/convention system as its means of allocating and binding delegates to the Republican National Convention in Milwaukee? 

    There is no direct opt-out for state parties in the Michigan law regarding the presidential primary. Otherwise, state Republicans may have been inclined to opt out of the primary in 2020 as a number of other states did when President Trump sought reelection. Arizona, for example, added an opt-out for state Republicans under that same rationale.

    But again, that option is not directly available in Michigan. What is available to party chairs is the ability to influence which candidates are on the primary ballot. There is a filing process for candidates who want to participate in a Michigan presidential primary, but it is an atypical one. That is because the secretary of state holds the power to determine who has access to the ballot based on who is mentioned in news media. State party chairs, under the same provision, add their input on the matter as well, augmenting the secretary's list of candidates with a list of their own. Any other candidates who does not end up on either of those lists can file in a manner that is more consistent with the processes in other states.

    The chair's list is the mechanism Michigan Republicans could use to try to informally opt-out of the presidential primary. However, it is not clear that the state party chair merely providing no list or even suggesting to the secretary of state that there is no need for a list (because of the party using caucuses) can effectively opt Michigan Republicans out of the primary. Section 3 of the main presidential primary law says that a "statewide presidential primary shall be conducted..." That provides little wiggle room for the state party. 

    Barring that or the addition of an opt-out (from majority Democrats in the state legislature who may not be interested in providing one), the courts may be the only clear path toward a caucus for the Michigan Republican Party. While the courts do not provide parties with full and unfettered power to determine the processes by which they nominate candidates, the do often provide very wide latitude to the parties when conflicts arise with state law. 

    But why go to the courts at all? After all, the Republican National Committee determines the rules and processes that guide their presidential nomination process. But it is the conflict in those rules -- again, that feedback loop mentioned above -- that theoretically would push the Michigan Republican Party to turn to the courts in order to get out of the presidential primary and avoid a violation to Rule 16(a)(1) of the Rules of the Republican Party. It is that statewide presidential preference vote in the presidential primary, one mandated by Michigan state law, falling before any compliant caucus on or after March 1 that gums up the works. 

    Part of the intention of the addition of Rule 16(a)(1) was geared toward preventing states from doing what Missouri accidentally did in 2012: hold a non-binding and noncompliant primary in February with compliant caucuses to allocate and select delegates in March. Michigan Republicans would fall into that very same trap. Only, in 2024 there is a rule in place preventing that, unlike in 2012. 

    The RNC cannot change that rule now. But it could grant Michigan Republicans a waiver under Rule 16(f)(4) to hold caucuses in much the same way that they could to exempt a February primary from sanctions. ...as long as it is, by rule, in the best interests of the party.

    But what is in the best interests of the party in this instance? It seems likely that the RNC will have to grant a waiver in the Michigan case regardless. But is one way -- the caucus or the primary -- more clearly in the best interests of the party than the other? The traditional approach of the Republican National Committee over time has been to provide state parties with as much latitude as possible in determining the process by which they allocate and select delegates. As one RNC member once told FHQ, "Let them [the state parties] deal with it." But that has changed. In recent cycles the national party has moved to codify rules that restrict certain methods of delegate allocation during particular times on the primary calendar or to bind them at the convention.

    So the RNC has shown some propensity to wade into that thicket if only on a limited scale. But is the party willing to force the hand of Michigan Republicans one way or the other? Toward or away from a primary or caucus? Does it have a need to? 

    On the one hand, the RNC, like the Democratic National Committee (DNC), likely sees some value in the more participatory nature of the primary process. More voters drawn to participate in a competitive Republican presidential primary produces more voters energized to come back and pull the lever for Republicans in the general election. Motivating Democratic voters in battleground state primaries was, again, part of what prompted the DNC to push not only primaries over caucuses but to push battleground states into the early window of the presidential primary calendar as well. And Michigan fits the bill on that front for Republicans as well.

    Yet, on the other hand, does the RNC want to be or appear heavy-handed on the matter with a state party that may or may not want to allocate, select and bind delegates through a caucus/convention process instead of a primary? There was talk among Republicans in 2018 of an incentive to nudge states away from caucuses and toward primaries. Nothing came of it but the idea was out there at the national party level. Incentives, however, are different from granting a waiver to a state party based on which method of delegate allocation the national party deems in its best interests. 

    And that is where the election of a new Republican state party chair in Michigan comes into the picture.

    A new state party chair and Michigan in 2024
    What does the Michigan Republican Party under Kristina Karamo want to do with respect to the 2024 presidential nomination process in the Great Lakes state? How does the party want to allocate and select delegates? Where any delegate selection event ends up on the calendar will potentially limit the possibilities -- true winner-take-all allocation schemes are banned before March 15 under RNC rules -- but beyond that is what mode of allocation the state party prefers. Primary or caucus? 

    Given that the Michigan Republican Party advanced two chair candidates -- Karamo and Matthew DePerno -- who both ran and lost statewide in 2022 and questioned those results, the party may have a preference to avoid a state-run primary contest in 2024, especially one run by Democrats at the top. The ledger is stacked on that one side:
    • state-run primary, the results of which could be called into question by Republicans -- X
    • a process run by Democrats at the top -- X
    • a contest too early under RNC rules that will draw severe penalties -- X
    That is a strong case for Michigan Republicans opting out of a noncompliant primary and choose to select and allocate national convention delegates based on a caucus/convention system in 2024. 

    Obviously, however, it is more complicated than merely opting out of the primary, as has been highlighted above. 

    And again, is opting out something that is in the best interests of the Republican Party (as determined by the national party)? Recall also that either way -- primary or caucus -- it is likely that the RNC will have to issue a waiver.

    Even that RNC waiver decision is fraught with complexities. Think about the decision-making environment in that scenario. For staters, the RNC has once again publicly stated that it intends to remain neutral in the 2024 presidential nomination race. But any decision in this Michigan situation could be viewed as putting a thumb on the scales. The argument is out there that a caucus would potentially help Trump. Maybe, but the former president's endorsement failed to carry DePerno over the finish line in the race for chair. Perhaps, then, Trump's reach is less than it once was. 

    Still, perception may become reality in this case. If the RNC actively grants a waiver for Michigan Republicans to hold caucuses, then that could be viewed as helping Trump, as not being neutral. And that may even be true in the event that the RNC passively stands by and allows the Michigan Republican Party to fight it out -- potentially in court -- with the state to opt out of the primary. The no waiver path. 

    The flip side carries problems of its own. If the caucuses are viewed as helping Trump, does the national party nudging Michigan Republicans toward using the primary (via a waiver) instead end up being viewed as hurting Trump? It is not clear that that would necessarily be the case, but a candidate Trump attempting to (re)burnish his antiestablishment credibility may be inclined to raise the issue. 

    From the RNC's perspective, there are some additional downstream considerations now that a new chair is in place for the state party in Michigan. Again, there are those participatory aspects in a general election battleground that may motivate the national party to advocate for the primary; to issue a waiver in the case of the primary only. 

    That may be a route that saves the state party from itself. Under Karamo, the party may wish to circumvent a state-run process, one run by Democrats, but a caucus/convention process -- or even a party-run primary, if the state party were to go down that road -- would cost the party money. That is money that could be better spent building the state party and laying the groundwork for a fall general election. That may or may not outweigh any misgivings about election integrity from Republicans in the state. Additionally, the state party chair vote was not exactly a smooth one. Now, that does not mean that it was a sign of things to come in any future caucuses with presidential delegates on the line, but it does not, perhaps, inspire confidence at the national party level. 

    The case of 1988 (or was that 1986?)
    It is not as if Michigan Republicans have not been down this road before. 

    For the 1988 cycle, the state party was inventive in how it selected and allocated delegates in the presidential nomination contest. Then as now, the name of the game on the state level was trying to draw candidate and media attention and impact the course of the presidential nomination race. Only, instead of trying to establish and move around a presidential primary, the party chose instead to conduct a long caucus/convention process that began in the late summer of 1986

    Yes, precinct caucuses in August 1986 -- before the midterms! -- chose 9000 precinct officers who also doubled as delegates to county caucuses in January 1988. It was from that pool of 9000 precinct officers at the county caucuses that delegates were chosen to attend the state convention at the end of January. And that January state convention subsequently chose delegates from the narrowed pool of precinct officers to attend the national convention. 

    It was the ultimate insiders game, and that battle among Bush, Kemp and Robertson delegates happened prior to the Iowa caucuses in 1988. 

    That system also backfired to some degree, creating a schism in the state party. A schism that at the time featured extensive credentials fights and spurred a rump state convention. And that divide haunted the state party thereafter. 

    To be clear, it is not assured that a 2024 caucus/convention process would follow that same route. At the very least, the dividing lines are not so clearly demarcated now as then when establishment forces were aligned against the upstart ideological push from Robertson and the Christian Coalition. As the recent chair's election showcased, the battle in the Michigan Republican Party was among a cadre of candidates who were all firmly in the Trump wing of the party. But are there divides therein? In the broader party, perhaps. There is already an effort among Republican legislators to draft Ron DeSantis

    But look, none of that means that history will repeat itself in Michigan in 2024. But if one is in the RNC, a group who may have to have a hand in the primary or caucus decision in Michigan, then a broader vote in a primary may be a safer route than allowing the flames of division to be stoked in the crucible of a state party-run caucus/convention system. That waiver decision, if it is for a primary, is not one without costs for the RNC, but it may be in the best interests of the party in a likely 2024 general election battleground.

    Saturday, February 18, 2023

    New Hampshire Senate Republicans Add a New Layer to Budding 2024 Delegate Fight

    The year is young and yet the multi-front battle between a variety of interests in New Hampshire and the Democratic National Committee (DNC) simmers on. 

    National Republicans kept the presidential primary in the Granite state in its first-in-the-nation position for 2024. Democrats did not. And while the vocal proponents of the first-in-the-nation primary on both sides of the aisle in New Hampshire have stepped forward to vigorously defend that status, the various state-level actors involved are differently constrained in a matter that highlights well the complexities of a nomination system steeped in federalism and stretched across both governments and political parties. Republicans in the Granite state, for example, feel emboldened while the New Hampshire Democratic Party is stuck between a state law -- and the status it creates for the presidential primary -- and a national party that has taken formal steps to knock the contest from its typical perch in the process. 

    But that does not mean Democrats in the state are powerless. Those in the state Senate joined Republicans in unanimously advancing a resolution defending the primary. That was not a move without risks for Democrats in the state. Non-binding though that resolution may have been, the fact that state Senate Democrats supported it en masse could be viewed by the DNC Rules and Bylaws Committee (DNCRBC) as another datapoint -- another act of defiance -- that continues to build a case against New Hampshire Democrats. That case may ultimately lead to increased penalties on the New Hampshire Democratic delegation should the party allocate delegates based on a primary that is presumed to go rogue in 2024.

    However, that symbolic gesture may be as far as New Hampshire Democrats in the state government are willing to go. None of them signed on to new legislation introduced this week and sponsored by the entire Republican Senate caucus. It is one thing for Granite state Democrats to support the first-in-the-nation status of the New Hampshire presidential primary in spirit, but Republicans have now moved on to second order issues in the process in an effort to shore up the operation of the FITN franchise. 

    All 14 New Hampshire Senate Republicans this week introduced SB 271, legislation that moves to protect delegates allocated and selected using the results of the presidential primary, rogue or not.

    Here is the text [additions to existing law in bold italics]:
    Delegates to National Party Conventions. Amend RSA 653:5 to read as follows:

    653:5 Delegates to National Party Conventions. At every presidential primary election, the voters of the state shall vote their preference for party candidates for president and thereby choose the delegates to each presidential nominating convention to which the state is entitled. The New Hampshire delegates so selected shall be seated and have complete voting rights at any national party nominating convention.
    That proposed change is apparently a bridge (of defiance) too far for state Senate Democrats, at least in terms of sponsoring the legislation. [Whether support is withheld during subsequent steps of the bill's consideration throughout the legislative process has yet to be seen.] In the near term, this is a costless act for Senate Republicans to attempt to advance this bill. The primary maintains its protection under current Republican National Committee (RNC) rules, and it matters little that there may be a law requiring delegates selected through the compliant primary to be seated at the Republican National Convention. 

    It is New Hampshire Democrats who would be drawn into further conflict with the Democratic National Committee if this bill is adopted and signed into law. 

    But here is the thing. The catch here is that this sort of legislation, if it ever becomes law, is unlikely to withstand any sort of legal challenge. A national convention determines the rules that govern it and the delegates/delegations that participate in it. State law does not; not in a direct way or as the final say in any event. 

    National parties set the rules for a nomination process and then states -- both state governments and state parties -- react to that guidance. In the vast majority of cases state laws and state party rules conform to the national party guidelines. Sometimes they do not. And when they fail to -- when a primary is too early or delegates are allocated in a prohibited manner -- there is a price to pay. National parties have contingencies if not penalties in place to deal with state parties operating in such rogue state scenarios. Moreover, national parties further frown on state parties and affiliated actors in state governments who flaunt the national rules. This is the position Senate Democrats in New Hampshire are in with this legislation. It is one thing to symbolically defend the first-in-the-nation primary, but it is another to attempt to dictate to a national party/national convention how to run part of its process. Courts usually side with the parties in these situations over state law. The parties, after all, retain the first amendment right to freedom of association and that tends to prevail in these sorts of state law versus party rules disputes.

    But there is a state law already protecting the primary in New Hampshire that conflicts with national party rules on the Democratic side now too.1 That, too, would seemingly invite a potential court challenge now. Perhaps, but the timing of these things -- the different parts of New Hampshire state law overlapping with the national party rules -- is different. A rogue primary is one thing. There are penalties in place to deal with that and those issues are typically dealt with prior to the commencement of a national convention. See, for example, the Florida and Michigan situation from 2008. 

    Dictating in state law whether particular delegates shall be seated at a national convention run by a national party is another thing altogether. While the action of allocating and selecting the delegates happens well in advance of a national convention, the seating part obviously happens at said convention. The window for action is much smaller. And obviously -- and perhaps most importantly -- there are enforcement issues involved. Who under this proposed law is going to make the Democratic National Convention seat those delegates? Well, in the short window of time between any credentials fight over a rogue New Hampshire delegation, potentially at the convention in question, and a presidential candidate being nominated, the courts may be asked to step in. But again, those courts are likely to defer to the national party on the matter. 

    And the last thing New Hampshire Republicans likely want to do is invite scrutiny of any law in the Granite state that defines nomination processes in conflict with national party rules. That sets a precedent that possibly undermines New Hampshire's first-in-the-nation status even more in future cycles. 

    SB 271 may or may not ultimately go anywhere. It is Republican-sponsored legislation in a Republican-controlled state government. But at the outset, it is another symbolic measure that puts state Democrats even more on the defensive. In other words, it is good politics locally, but is unlikely to carry weight outside the borders of the Granite state or in the long term if implemented. 

    1 The first-in-the-nation primary law that has been in place since 1975 in New Hampshire has not directly come into conflict with national party rules since 1984 and has been directly protect in DNC rules in every cycle since. ...until 2024.

    Friday, February 17, 2023

    Legislation Would Make the California Presidential Primary Date Unspecified

    Here is an interesting one from California. 

    Legislation introduced back in December  would strike out the phrase "first Tuesday after the first Monday in March" and replace it with "____" in the portion of the California electoral code that schedules the Golden state's consolidated primary in years evenly divisible by four.

    One could wrangle over the implications, but in truth, SB 24, sponsored by Senator Thomas Umberg (D-34th, Santa Ana), is likely a temporary placeholder for a substantive change to the date of the presidential primary. It is either a change the senator would like to make/explore or an idea around which he would like to build consensus over the course of the 2023 legislative session.

    There was a variation on this maneuver in California during the 2012 cycle. That bill went nowhere, but the separate California presidential primary was eventually eliminated and consolidated once again with the primaries for other offices in June. The 2017 change that pushed the presidential primary in the Golden state to Super Tuesday for 2020 moved the whole consolidated primary to March rather than separating the two elections. That is where the California presidential primary is currently scheduled.

    As an aside, FHQ would argue that removing the date altogether from California electoral code would not be all that functionally different from the way that New York handles the scheduling of its presidential primary every four years. The protocol in the Empire state has been to set the parameters around which the presidential primary will be conducted and delegates allocated and then sunset the change after the presidential election year concludes. The date reverts to February and the state revisits the date every four years. Theoretically, it is the national party rules that force the reexamination of the primary's timing in New York. A February date is noncompliant and actors on the state level are at least somewhat compelled to make a change. Those New York legislators do not necessarily have to do that every four years -- the change does not have to sunset -- but that has been the standard operating procedure there dating back to the 2012 cycle

    Functionally, a California law that would hypothetically leave a blank for the presidential primary date -- well, the consolidated primary in years evenly divisible by four -- would force the same sort of quadrennial reflection. However, that would be an atypical move. The New York method is already unique, but it at least has some justification. There is permanent guidance in the statute on where the primary should be scheduled. It just has to be changed from the February date every four years. 

    It would be unusual for a state, California in this case, to provide no guidance for the timing of not just a presidential primary, but a primary for a host of other offices as well in presidential election years. 

    Regardless, that blank will either be filled in at some point during this bill's consideration in 2023 or the legislation will likely not go anywhere. And it may not get beyond the committee stage anyway. 

    But California always bears watching. Although it is a Democratic state, it is still the most populous state and the most delegate-rich state in the Republican presidential nomination process. If California packs it up and moves everything back to June, then that will have some impact on the Republican calculus of acquiring delegates, likely delaying when any candidate might clinch the nomination. 

    This legislation has been added to FHQ's updated 2024 presidential primary calendar