Sunday, February 5, 2023

OK. The DNC Has a New and Different Calendar for 2024. Now What?

But as noted in this space a day ago, the adoption of those rules merely ends one chapter in the sequence and ushers in a new one. The national parties have now finalized their rules for the 2024 cycle, and now the ball in the court of the states, both state governments and state parties.1 And they will react. They already are. State legislators have been filing legislation to change the dates of presidential primaries. Democratic state parties have, no doubt, been crafting draft delegate selection plans that will be released as winter transitions to spring 2023. And even on the Republican side, state party officer elections are and will be occurring and (delegation allocation) rules tweaks will be considered.

Much of this is and will be routine. 

Some of it will not be. Again, as noted a day ago on the heels of the DNC adoption of the new calendar rules package, the national party has followed a divergent path in the 2024 cycle to this point. And it is more than breaking with tradition and shunting Iowa and New Hampshire to later spots (in the rules) on the primary calendar than either has typically occupied. But that is where the focus will be in the coming weeks and months. And understandably so. As the Republican invisible primary heats up and candidates enter the race, there projects be a dearth of stories on the Democratic side. If Biden jumps back in, as expected, and receives only token opposition, then the only game in town will be the continuing calendar drama over Iowa and New Hampshire (and to a lesser degree, Georgia). News of the Biden campaign build out will certainly break, but the calendar drama will contrast with the picture of a party ostensibly united behind the president.

But one need not peer into the fog of a crystal ball to attempt to discern where this calendar kerfuffle is going. It has become clear that both sides -- the Democratic National Committee (DNC) and the state Democratic parties in Iowa and/or New Hampshire -- are going to dig in for a protracted battle. But that does not mean that news content creators and consumers need to fall into the trap of repeatedly checking the pulse of a predictable drama. 

Look, Iowa and New Hampshire Democrats will both have to submit draft delegate selection plans to the DNC Rules and Bylaws Committee (DNCRBC) by May 3, 2023. The Iowa Democratic Party will definitely have the ability to specify a particular date on which their caucuses will occur in 2024. Whether the party actually does specify a date by that time or dodges and leaves that blank -- waiting, as has been the standard early state protocol, for the certainty of where other states may fall on the calendar -- remains to be seen. But two of the three possible outcomes point toward defiance. Leaving the date blank or planning for January caucuses (in order to stay ahead of other states) in the plan rather than falling in line under the new rules are not provable, positive steps toward compliance. 

There is going to be defiance of the national party rules on the part of the Democratic parties in Iowa and/or New Hampshire or there will not be. And there will be a response from the DNCRBC. If defiance is the chosen path, then that reaction will not only be to strip both states of half their allotment of national convention delegates, but to remove the entire apportionment. 

This is pretty clear. ...right now.

It will not really be revelatory then in May (for Iowa) and June (when New Hampshire's waiver review concludes). It will not really be news. Yet, there are ways that the narrative can be pushed further that can benefit those following along with this story. Here are some questions that both news content creators and consumers can ask in the coming days, weeks and months of both entrenched interests in this seemingly inevitable back and forth.

Questions to ask now that there is an official outline for the 2024 presidential primary calendar
For both Iowa and New Hampshire Democrats:
What is the penalty for not following state law?

For New Hampshire Democrats:
Why can't the state party use a party-run option that complies with the DNC rules for 2024?
Both of these questions get to the heart of the typical defense in both Iowa and New Hampshire. Both parties use state law as a shield in their efforts to protect their respective first-in-the-nation statuses. Yes, there is a state law in Iowa that compels state parties to hold their precinct caucuses eight days before any other contest. And in New Hampshire the law calls for the state-run primary to be scheduled by the secretary of state for a time a week before any other similar contest. 

But what happens if either state party breaks those laws? 

The answer is clear in Iowa. Not much. No, it is less than that: nothing. There is clarity on that because both state parties have already broken that state law twice in the last four cycles. The caucuses were just five days before the New Hampshire primary in 2008.2 And they were just seven days before them four years later. And never mind the fact that Louisiana held an early primary in 1996 that was before both Iowa and New Hampshire that year and also allocated a sizable chunk of their delegates.

What price did Iowa political parties pay in those years? None. In all cases, there was no state sanction, and the state parties were able to continue drawing most of the candidate attention and reap the usual benefits of being first. In Iowa's case, the state law is only as strong as the unified state parties standing behind it. If either or both fold, then the law is meaningless (with no penalties).

Things are slightly different in New Hampshire where the contest -- the presidential primary -- is a state-funded and run process. Unlike in Iowa, that ties the hands of the state parties in ways that one currently sees. New Hampshire Democrats are powerless to change the state law to alter either the primary date/scheduling mechanism or add no-excuse absentee voting. Republicans control the levers of power in the Granite state. 

But what is keeping New Hampshire Democrats from opting out of the presidential primary and turning to a party-run process that complies with the new national party rules? Again, as is the case in the Iowa example above, it is not clear that there is any significant roadblock to that sort of change. Well, there is an obstacle. In this case, it is the defense mechanism that is triggered in New Hampshire every time the primary's first-in-the-nation status is threatened. Very simply -- and clearly -- few in New Hampshire want to let that go. 

So, just as is the case in Iowa, the New Hampshire law is only as strong as the parties willing to band together and stand behind it. Any deviation in Granite state by either or both parties undermines the law for future cycles.

Of course, it is worth noting that while New Hampshire Democrats could opt to hold a party-run contest of some sort, it is not clear that taking such a route would allow them to keep their pre-window waiver. Recall that the conditions to be granted that waiver require New Hampshire Democrats to change state laws they cannot possibly alter from the minority. 

And that is another question to pose to New Hampshire Democrats: What would the party do if it did hold majorities in the General Court and the governor's mansion as well? That is a hypothetical that Democrats in the Granite state are saved from having to directly answer in this cycle due to the partisan realities in the state at the moment. But that answer would be enlightening. 

That said, there was a hint of an answer in the comments Donna Soucy, Democratic leader in the New Hampshire state Senate and DNC member, made in defense of the first-in-the-nation primary before the full DNC on Saturday. While she noted the futility of Democratic actions in the legislature, she did say that legislation addressing no-excuse absentee voting had been advanced in the last legislative session only to be vetoed by Governor Sununu (R). She went on to say that legislation was in the works or already out there to do the same in this current session. That is a good faith effort on the part of New Hampshire Democrats. That is a provable, positive step toward one of the changes they are being asked by the DNCRBC to make. The effort may be doomed, but it is evidence of Democrats in the state at least working toward the change called for in order to be granted a pre-window waiver. 

But if Democrats in the New Hampshire General Court can make those efforts on no-excuse absentee voting, then why not on changing the date and scheduling mechanism for the presidential primary? Soucy did not go there in her comments to the DNC. And that is a tell. There is no intention to make those changes. To do so is to undermine the current law which would weaken New Hampshire in these fights in the future. And honestly, it would be bad politics locally. No Democrat in the Granite state is going to hand that -- trying to change the first-in-the-nation law -- to Republicans on a silver platter. They just are not. They cannot. It would be a political loser for them.

In the end and in the context of the back and forth between New Hampshire and the DNC, that is not going to matter. All the DNCRBC is going to look at are the rules and whether New Hampshire Democrats have made good faith efforts at provable, positive steps toward the changes required to be granted a pre-window waiver. All of this -- for both Iowa and New Hampshire -- circles back to the fact that neither has a specific guaranteed waiver for the first time since 1980. That is a key difference in how the DNC will deal with both moving forward.

Speaking of the DNC, there are questions that the national party could be asked that can advance this story beyond a simple he said/she said drama as well.
For the DNC:
How is the party going to enforce this in the end if either or both states go rogue?

How does the party do that in a way that preserves the new system -- the rotation -- for future cycles?
These are more difficult questions to answer because they imagine a situation further on down the line once Iowa and New Hampshire have acted (or not acted). However, if one assumes defiance on the part of Democrats in both traditional kick-off states, then the answers become a little less murky. 

If Iowa and New Hampshire Democrats fail to demonstrate that provable, positive steps are being taken to comply with the national party rules, then as was mentioned above, it is likely that the DNCRBC follows its 2008 blueprint and strips Iowa and/or New Hampshire of all of their delegates. Those signals are already out there. The panel is already communicating that to state parties.

The conundrum, of course, is that while it may be comparatively easy for the DNCRBC to levy a full delegation penalty on both Iowa and New Hampshire during primary season, it is a different matter entirely to enforce that in a way that preserves the effectiveness of the penalties for future cycles. To do that -- to penalize the states in a way that lasts beyond 2024 -- the convention would likely have to opt not to seat delegations from either or both states. 

Perhaps it is enough for the party to send the same signal it did with Florida and Michigan in 2008. A intra-primary season penalty, though, may only serve to delay an inevitable clash until a time in which it is more difficult to deal: a competitive nomination cycle. The stakes are relatively low in 2024 with an incumbent president seemingly on the cusp of entering a race (that does not appear to be much of a race). 

If the national party and the president are serious about uprooting Iowa and New Hampshire and changing the way that the pre-window lineup is set every cycle, then it will have to grapple with how seriously they want to sanction both states for potential rules violations. To make the change -- to move to a quadrennial possibility of a rotation of states in the pre-window -- then it will likely require the convention to not seat delegations from offending states. And the convention is a distinct set of decision makers. It is not exactly the same as the DNC. There is some overlap, but not complete overlap between the two. But a presumptive nominee, and an incumbent president at that, does have some say in orchestrating any convention that nominates him or her. Biden would theoretically have some say in the matter if push comes to shove with Iowa and/or New Hampshire in the summer of 2024. 

But will he? Would Biden and those around him ultimately go as far as to not seat entire delegations elected/selected to those positions by contests that violated national party rules? That is the part that has proven difficult in the past and part of what Iowa and/or New Hampshire are banking on in the 2024 cycle. The president will not need either state to win the nomination at the convention, but a unified convention is what nominees and parties aim for if they can get it to kick off a general election run. That is what the early states would try to exploit. 

The question then becomes whether there is some middle ground that can deliver a punishment, the effects of which can be carried over to future cycles to preserve the new system the DNC is attempting to establish. Is there something less than not seating a rogue delegation that would also be effective? Seating those delegations, but stripping them of their voting rights on roll call? On other matters like the platform or convention rules? None are necessarily good looks for a party that bills itself as a defender of voting rights (even if the party is following the rules codified for the 2024 cycle). There is no easy fix that makes enforcement foolproof to a degree that likely fully delivers a message to would-be rogue states in future cycles. It is tough given the timing of things and the incentives at various points along the timeline. 

Finally, there is one more question that could be asked of the DNC but likely applies more generally:
Do any of the interested parties involved in this turn to the courts?
It is not clear that the DNC or the Biden reelection campaign would directly turn to the courts to seek a remedy to this. It is, after all, an internal party matter. But if done early enough, the courts could offer a path to compliance. Remember the 1984 experience

Mondale campaign operatives in Iowa took Iowa Democrats to court, fearful that Mondale supporters in the Hawkeye state would be materially harmed at the convention if the caucuses in 1984 were too early in violation of the DNC rules that cycle. Threats to not seat the delegation would have meant Iowa voices would have been left unrepresented at the convention. The problem for those who brought the suit was not that the claim lack merit of that the claimants lacked standing. Rather, the case came so late -- in late 1983 -- that other candidates/other campaigns had already built infrastructure as if Iowa's caucuses would be in the (technically) noncompliant position. 

But if a case came earlier in the year -- like after Iowa or New Hampshire submitted rogue delegate selection plans signaling their intent -- and if the case was brought in a year in which an incumbent president were running for reelection against token opposition (with little demonstrable campaign infrastructure in place), what then? Could the courts force on Iowa and/or New Hampshire Democratic parties remedial actions including party-run processes that comply with national party rules. 

The catch is finding anyone in Iowa or New Hampshire who is still a Biden supporter and who is legitimately concerned about themselves or their state's voice being fully heard at the Democratic National Convention. After yesterday's DNC vote on the calendar package, there may not be too many folks left who fit that category. 

Nonetheless, it is a questions worth asking. One that, when combined with the others above, advances what is likely to be a messy back and forth between the state parties and the DNC. There will be he said/she said drama to that mess, but it would be helpful to push beyond the temptation to regurgitate that story every painful step of the way. The questions posed here get at factors beyond that sort of superficial account. 

1 In truth, there is some overlap between these two phases. It does not neatly transition from one chapter to another. While most state governments wait until after the national party rules are set, some act before that point in the cycle. It is just that there is more legislative urgency on the issue of presidential primary scheduling, for example, in the lead up to the next presidential primary -- typically after a midterm election and before the presidential primaries commence -- than at other times. 

2 Technically, the Iowa Republican caucuses were just two days before the caucuses that allocated two-thirds of national convention delegates in Wyoming that same year. 

No comments: