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

The Democrats have a newly revamped set of calendar rules for 2024.

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. 

The sequence is much the same for New Hampshire Democrats and their delegate selection plan. 

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. 

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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. 

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DNC Adopts 2024 Primary Calendar Plan

As expected, the Democratic National Committee on Saturday adopted the calendar rules package brought before it by the DNC Rules and Bylaws Committee (DNCRBC) at the party's winter meeting in Philadelphia.

Over the course of the general session, DNC members from both Iowa and New Hampshire rose in opposition to the changes that would remove the Hawkeye state from the early window altogether and replace the caucuses atop the Democratic presidential primary calendar with the South Carolina primary. However, other than a smattering of nays across the room, the proposed plan to reshape the early nomination calendar passed with near unanimous support. 

The vote brings to an end this chapter of the process. And it is an unusual end to the preliminary chapter the national parties write every four years. Typically in the Democratic process, the national party would have adopted all of its rules for the cycle by the time it held its midterm year summer meeting. And while the DNC did adopt the bulk of the 2024 rules in September 2022, it saved until after the midterm elections the decision concerning which states would receive waivers to hold pre-window contests. 

Moreover, that decision -- which states would be granted waivers -- broke with tradition as well. Rather than continue with the process in place since 2006 of automatically awarding waivers to Iowa, New Hampshire, Nevada and South Carolina, the DNC opened up the process in 2022 to any state Democratic party that wanted to pitch the DNCRBC on why it should be included in the early calendar. 20 states and territories, including the four traditional carve-outs, applied and 17, again, including the four traditionally early states, were invited to make presentations to the DNCRBC in the summer of 2022.

The criteria the DNCRBC operated under during that process were simple enough. The panel sought states that offered diversity (racial, regional and economic), competitive battlegrounds where primary stage campaigning would potentially pay dividends in a general election and afforded a feasibility of primary or caucus movement. Most of the traditional carve-outs had issues. Iowa, following a challenging 2020 caucuses, was already up against it without the additional strain of the party's diversity focus. New Hampshire was too. South Carolina did not fit the mold in terms of general election competitiveness. Only Nevada, a state that had already shifted from a caucus system to state-run primary before 2022 -- another preference of the national party dating back to the 2020 cycle -- seemed to tick all of the boxes.

But again, it was unusual that the national party waited until after the midterms to select the early state lineup for the 2024 calendar. Yet, with control of state governments at stake in those elections, feasibility of movement for a number of applicants was in question.

As the midterms passed, Democrats were left in control in a number of states, but the White House had yet to publicly share its thoughts on the rules; typically an integral component in any in-party's calculus. The precedent set throughout much of the post-reform era has been for presidents to more or less carry over the same rules that got them the nomination in the first place. But on the eve of the DNCRBC meeting to adopt a waivers package for early 2024 states, the Biden White House broke with that protocol, proposing to push Iowa's caucuses out of the early window and shunt New Hampshire into a slot alongside one primary (Nevada) and behind another (South Carolina). 

And that is where things stand after the full DNC has vote in favor of the calendar changes. South Carolina and Nevada are locked in and Michigan has passed legislation to move its primary into the February 27 position called for in the new DNC rules.¹ And in that regard, the DNC is ahead of schedule (in some respects) compared to other cycles. Three of the five early states are locked into position without risk of further maneuvering because of the actions of states around them in the pre-window. That should tamp down on calendar chaos to some degree as 2023 progresses.

As this phase -- the national party phase -- of the rules process (mostly) comes to a close, that is where the Democratic side is. [The Republican process continues to have Iowa, New Hampshire, South Carolina and Nevada, in that order, as the lead-off states on its calendar.] Three early states are in position on the Democratic primary calendar as February 2023 begins, and two states are not. Georgia and New Hampshire now have until June 3 to comply with the DNC waiver requirements or forfeit those waivers and their positions on the early calendar.  

Democratic state parties will begin in the next month or two to publicly share their draft delegate selection plans before finalizing them and sending them off to the DNCRBC by May 3 for review and approval. Although there remains a national party component, this is the state/state party phase of the rules sequence. Much will be said about Georgia and New Hampshire until June, but other states will be maneuvering with respect to their rules (state parties) and calendar positions (mainly state governments).

But it should not be lost on anyone what the Democratic National Committee has done. It has not only broken with its regular rhythms for setting the pre-window lineup of states, it has completely revamped that lineup. And that is a big deal. It is a big deal considering the stink that New Hampshire has already raised and the backlash that Granite state Democrats and those in Iowa will likely to continue to push in this next phase if not into 2024. That entrenched duopoly has proven difficult for national parties to combat because the wherewithal simply is not typically there. Internally (within the party electorate) popular incumbent presidents usually want to glide to renomination in order to prepare for a grueling reelection campaign. Those administrations do not typically invite trouble. In some respects, however, that is what the Biden administration and DNC have done. Yet, that is exactly the sort of "low stakes" environment needed to make those types of rules changes; when the competition is low and new precedents can be set with future cycles in mind. That is what is at stake moving forward and why the DNC is likely to dig in just as much as Iowa and New Hampshire are.  

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Below is a live thread on the DNC winter meeting general session when the party was considering the calendar package. 

#DNCRBC co-Chair Roosevelt is summarizing to the DNC membership the process that produced the package of early state waivers for the 2024 cycle. 2/3 SC --> 2/6 NV/NH --> 2/13 GA --> 2/27 MI.

— Josh Putnam (@FHQ) February 4, 2023

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¹ There is a further implementation complication that will require the Michigan legislature to wrap up its business earlier than usual in 2023 so that the primary bill can take effect in time for the presidential primary in the Great Lakes state to actually fall on February 27.

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How Do New Hampshirites Really Feel About 2024 and the Presidential Primary Calendar?

FHQ will admit it. We almost took the bait. 

...again. 

Another group of New Hampshire Democrats are voicing their displeasure with President Biden's proposed shake up to the 2024 presidential primary calendar. And once again, it looks like a doubling -- or tripling -- down on the same arguments that Democrats in the Granite state have used in defense of their first-in-the-nation presidential primary since the DNC Rules and Bylaws Committee (DNCRBC) adopted the proposed calendar in December. And these Democrats are equally as justified in making that defense directly to the president as others have been over the last month or more. The calendar decision has not been finalized and will not be until the February DNC winter meeting at the earliest. 

But the national media keeps treating this as a national story. And it is! In that national story, New Hampshire Democrats keep digging in, seemingly making the situation worse with national Democrats. In that game it would behoove New Hampshire Democrats to quietly defer to the state law that requires the secretary of state in the Granite state to schedule the presidential primary there at least seven days before any other similar contest. That decision, after all, is out of their hands. So, too, are the changes to state law that the DNCRBC has requested New Hampshire Democrats push for with Republicans in control of the levers of power in the state. 

What continues to be in the control of New Hampshire Democrats is how they push for those changes. Elected Democrats in the New Hampshire General Court can propose legislation to change the date of the primary and to add no-excuse absentee voting. One Democrat has already proposed an expansion of absentee voting conditions (even if those changes likely fall short of what national Democrats have in mind).

Granted, the incentives are just not there to push for changes to the presidential primary date or to propose some alternative method of selecting and allocating national convention delegates. Those are both well within the power of New Hampshire Democrats to do, but to cede any ground -- any -- on first-in-the-nation status is to undermine the whole institution. And Democrats in the Granite state are not going to do that, especially before the decision has been finalized at the national level. 

So we are all left with this constant back and forth of bad optics for New Hampshire Democrats in the national media. A decision still has not been made and the vacuum keeps getting filled by the constant, yet natural, drip of New Hampshire Democrats lobbying the president or the DNCRBC in the lead up to when the calendar decision is to be made.

But rather than continue on that feedback loop where a new communication from Concord to Washington begets yet another national story about New Hampshire Democrats digging their hole even deeper with national Democrats, the focus should perhaps be elsewhere. 

Why is it that New Hampshire Democrats are doing this? Yes, yes. Defense of the presidential primary. Everyone gets that. But why are they doing this in this way when continued defiance only hurts them with the national party -- when it only seemingly brings the state party inescapably closer to sanctions from the national party? 

Much of this has to do with the fact that New Hampshire Democrats have two audiences to which they have to play. Every facet of the above story is about how the decisions state Democrats are making are playing with the national party audience (whether the national party as an organization or Democrats nationally). But how do these decisions play at home? In New Hampshire? 

No, FHQ is not talking about the DNC proposal. The vocalized response thus far seems to be against the changes called for the in the calendar plan adopted by the DNCRBC (but not yet finalized by the DNC). But how do New Hampshirites feel about the defense the Democratic Party in the Granite state is waging? 

Do they feel it is adequate? 

Do they feel it is even necessary? 

This strikes FHQ as a missing link in all the reporting on the New Hampshire Democratic Party response to the DNCRBC decision. The public reaction to the DNCRBC decision has been covered but feelings about the NHDP response have not. And that is important. It is important because NHDP continues to raise the negative ramifications of the national-level process and decision on electoral prospects for Democrats up and down the ballot in the Granite state. 

If New Hampshire Democrats and Democratic-leaning independents in the electorate are of the opinion that the NHDP response to the national party is adequate, then it may not hurt Democrats in races other than the presidential race in 2024 or only affect them at the margins. [Yes, those margins can matter.] 

If those same folks in New Hampshire feel like the response from NHDP is unnecessary -- that New Hampshire is going to do what New Hampshire is going to do and go first anyway -- then it may not hurt Democrats at all in 2024. Republicans in the state are just screaming into the wind to no avail when raising the issue as a potential wedge. 

But we do not know those things. They are not part of the national narrative on this story. [And the New Hampshire press has incentives to tell this story as a defense of the primary and that alone.] So this story keeps getting told the same way every time it is revealed that some New Hampshire Democrat or group of them is making another pitch to some national Democrat or the DNCRBC. 

And it is not that FHQ is demanding a poll be commissioned. We do not even really have this information anecdotally. We are just being made to take a variety of New Hampshire Democrats' words for it that this calendar move -- whether New Hampshire Democrats defy it or not -- will be injurious to Democrats in 2024. 

Will it? There are ways to answer that and no one is really getting at them. ...at least not yet.

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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.

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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.

--

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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. 

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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.

--

Recent posts:

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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. 

Blackmail

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.

--

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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.

Georgia?

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. 

Nevada?

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.

South Carolina? Definitely. 

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.

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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.

--

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