Showing posts with label court challenges. Show all posts
Showing posts with label court challenges. Show all posts

Tuesday, May 19, 2020

Appeal Denied. New York Democratic Presidential Primary Set for June 23

The US 2nd Circuit Court of Appeals on Tuesday, May 19 upheld a lower court ruling from earlier in the month reinstating the canceled New York Democratic presidential primary.

The state of New York had appealed the district court decision to reverse the New York State Board of Elections action canceling the primary under a new law that allowed the Board to remove candidates no longer in the race. Following the 2nd circuit ruling, the state will not appeal any further.

And that officially slates the New York Democratic presidential primary for June 23, a date just five weeks away.

Candidates both for president and district delegate had already filed for the April 28 primary ballot, so none of the state government nor judicial decisions have had any demonstrable impact on the filing process. Nor does the decision today affect the selection process for those district delegates. They will continue to be elected directly from the primary ballot. However, the date of the state convention and the selection of statewide -- at-large and PLEO -- delegates has been affected in the move to June. The State Democratic Committee will now select those delegates -- based on the statewide results of the primary -- at the late July state convention.

And two other factors will affect the administration of the election. First, the delay in finalizing the date of the New York primary did no favors to the State Board of Elections. Sure, the Board held that up with the appeal, but it also delayed finalizing the ballot for the primary election itself. And under the federal UOCAVA law, ballots are to go out to military and other personnel overseas 45 days before any election. There are workarounds for that -- counting the ballots when they come in, for example -- but a delay is a delay and can influence the implementation of election law.

Additionally, Governor Cuomo's April 24 executive order to provide absentee ballot applications (with a postage paid return option) to all eligible New York voters for the primary must be rolled out in the 35 day window remaining. The details of that process will have to be finalized as well, particularly the return of the completed ballots and whether that is mail-only for voters or if they can physically drop them off with election administrators.

One other matter to note is that the New York Democratic Party has amended its delegate selection plan to reflect not only the date change for the primary, but the allocation of delegates. Now, this point is moot at this time given that the primary is back on, but the language of Part 2, Section A of the delegate selection plan lays out the conditions under which the process would operate if the primary were canceled. Originally (and traditionally), the plan has called for all of the delegates to be allocated to the one candidate who has qualified for the primary ballot. That remains the case, but with a slight tweak. As a rider on that provision another is included: "or at the discretion of such Candidate." That addition was seemingly made in response to the deal struck between the Biden and Sanders campaigns to not only allow Sanders to keep his statewide delegates but to get a share of New York delegates if the primary ultimately ended up canceled. It is not and thus that provision is unnecessary. Still, there was a notable change to the language of the rules.

Related Posts:
On-Again, Off-Again New York Democratic Presidential Primary is Back on Again

Cuomo Executive Order Confirms New York Presidential Primary Will Move to June 23

New York State Legislature Begins Working on Alternatives to April 28 Presidential Primary

Friday, May 8, 2020

On-Again, Off-Again New York Democratic Presidential Primary is Back on Again

The late April New York State Board of Elections decision to cancel the Democratic presidential primary in the Empire state met some judicial resistance on Tuesday, May 5.

In a federal case brought by former Democratic presidential candidate, Andrew Yang, and some of those who filed to run as delegates aligned with him on the New York primary ballot, the aim was to reinstate candidates and delegates pushed off the ballot last month. It was that action -- the removal of  suspended candidates from the ballot -- that was the predicate to the state board's decision regarding the primary cancelation.

But the groundwork for that maneuver was laid in the budget agreed to by the state legislature and Governor Cuomo (D). Under traditional New York state election law, the State Board of Elections has the ability to cancel a primary if only one candidate qualifies, rendering the election uncontested and superfluous. That obviously was not the case in the 2020 Democratic nomination race. Although the bar to qualify for the New York presidential primary ballot is high, Vice President Joe Biden was not the only candidate to make the ballot.

However, Biden was the only candidate who had not suspended his campaign by the time the budget deal was being finalized. And while other candidates were still technically on the ballot, all had suspended their campaigns and most had endorsed Biden. And language was inserted in the budget bill to provide the state board with an additional tool given that contingency. The board was empowered with the ability to remove candidates from the primary ballot if they were no longer actively running for the nomination. That, in turn, triggered the "only one candidate" provision that has been a part of New York election law for years.

But again, candidates, both presidential and district delegate, had qualified for the original April ballot before the primary was shifted to June 23. And when the primary was canceled in late April, that drew the ire of the newly suspended Sanders campaign and the aforementioned Yang case.

So, on the one hand, one has the argument that the cancelation suppresses the vote not only in the presidential race in New York, but in all the down ballot races in parts of the Empire state that are still on for June 23. On the other is a state government attempting to manage the public health concerns around in-person voting and the coronavirus pandemic and possible budgetary savings from scaling that primary back that would help diminished state coffers in the face of the virus.1

Now that federal judge, Analisa Torres, has issued an injunction and the June 23 Democratic presidential primary is back on, it means that elections officials in the state have lost a week of preparation with fewer than 50 days until the election. And throw on top of that a likely appeal of the decision from the state. Much of this creates more uncertainty that cuts into the time to get the ballots ready and printed and applications for absentee ballots out to eligible voters (much less returned, processed and actual ballots mailed out as well). That is a heavy lift even without considering any issues with recruiting poll workers, training them for new conditions and getting them comfortable with showing up to administer the election.

But push the state government implementation issues aside for a moment. There still is no answer to how the New York Democratic Party is or has responded to the primary back and forth. Should the presidential primary now go off as planned under the original delegate selection plan and the new court injunction, then the revisions the state party will have to make to the plan will be minimal.

However, there was no alternate scenario publicly shared on how the party would allocate delegates should there be no primary. Under the current plan, the party allocates all of the delegates to the candidate in an uncontested primary. But that rule hinges on (and cites) the traditional New York state election law that cancels a primary if only one candidate qualifies for the ballot. There is no contingency in the rule in the delegate selection plan that accounts for the new law, the law that eliminates candidates from the ballot who are no longer running.

A change has to be made there if the primary is canceled again under appeal.

But that is not the only change under the cancelation contingency. There also likely has to be something written into the plan -- the revisions of which will have to be reviewed and approved by the DNC Rules and Bylaws Committee (DNCRBC) -- to account for the deal struck between the Biden campaign and the suspended Sanders campaign. Yes, that deal allowed Sanders to keep his statewide delegates instead of having them reallocated, but it also included a provision about the New York process in the event that there was no primary. That deal says Sanders will get some share of the delegates in the Empire state. But how that process is conducted, who is doing the selecting (especially with district delegates no longer directly elected on the primary ballot) and how to determine Sanders's share remain open questions that likely have to be dealt with in any changes the New York Democratic Party hypothetically makes to its delegate selection plan before it submits it to the DNCRBC.

In the end, there is some uncertainty that surrounds the delegate selection process in New York while Judge Torres's decision is appealed. But that uncertainty extends beyond just the state government and its administration of an election that is less than seven weeks off. It affects the state party's plans for how it will handle the delegate selection process itself with the clock ticking down to the start of a delayed national convention.

1 Yes, Governor Cuomo issued an executive order on April 24 ensuring that absentee ballot applications would be mailed to every eligible New York voter in the June 23 primary. That decision came just days before the primary was canceled by the State Board of Elections on April 27.

Friday, March 2, 2012

Texas Primary Set for May 29

And the court said let there be a May 29 primary in Texas.

And there was a May 29 primary scheduled, and all was right with the world. Well, calendar world, anyway. So here we are two months into 2012 and we finally, just maybe, have a completed presidential primary calendar. No, not for 2016; for 2012.

Feeble attempts at humor aside, both Texas state parties have set their delegate selection rules in place -- Texas Republicans will still have a proportional allocation system. -- and the courts have given the go-ahead for a May 29 primary. That places Texas all by itself on the third to last occupied week of the primary calendar; just ahead of the California and New Jersey primaries on June 5 and four weeks ahead of the Utah primary on June 26.

This moves the Texas Republican primary and its 155 delegates -- over 10% of the 1144 needed to win the nomination -- back from the March 6 date the contest started on and back even further from the April 3 date the courts were forced to move the primary from due to the continued redistricting dispute in the state. With a tentative map and delegate selection rules set, the primary got the green light.

Follow the Texas calendar movement throughout the last few months by clicking on the Texas label.

Recent Posts:
On the Shifting/Not Shifting of Michigan Delegate Allocation Rules

Race to 1144: Arizona Primary

Idaho House Bill to Eliminate Presidential Primary Passes State Senate

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Thursday, February 16, 2012

April Primary Given the Heave Ho in Texas

And so it has come to this in Texas.

Unable to draw congressional (and state Senate and House) district boundaries in time now to pull off a primary across court-cleared districts without a hitch (Well, with minimal hitches anyway.), unable to settle matters in time to get ballots printed and off to overseas military personnel (in compliance with the mandates of the federal MOVE act), and unable to do any of the above without in some way negatively affecting local elections officials tasked with implementing any agreed upon districts/primary date in the process, the federal court in San Antonio today put to rest any enduring hope of an April 3 primary in Texas. In fact, the hour is late enough at this point that a primary at any point in April or much of May for that matter was simply unworkable for myriad reasons.

The earliest the Texas presidential primary could be held is May 29, and even that date is dependent upon the progress made on interim maps. Any delays there would push the primary into June.

What might be more interesting is how the Texas state parties will deal with the delegate selection process in light of the fact that both are sticking with state conventions in early June and would have to alter state party rules to accommodate any changes to the delegate selection because of the tight window around the primary and conventions.

...but that's a story for another day.

Recent Posts:
2012 Republican Delegate Allocation: Michigan

Bill Would Repeal Arizona Presidential Primary

No Conspiracy in Maine

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Monday, February 6, 2012

Pennsylvania Presidential Primary on the Move?

The redistricting process may claim another victim on the presidential primary calendar.

The ongoing battle to set congressional district boundaries in Pennsylvania -- now in the courts -- may push the April 24 presidential primary in the Keystone state back on the calendar. From the Pittsburgh Post-Gazette on Saturday:
Also, without knowing how long it would take a new plan to become final, Mr. Pileggi said lawmakers will need to consider whether they should delay the primary contest. 
"Without control over that length of time, it's hard to come to a final conclusion," [Pennsylvania Senate Majority Leader] Mr. Pileggi said in a teleconference with reporters. "But certainly the April 24th date is in jeopardy." 
Democrats said that moving the primary is unnecessary because the Supreme Court has said the decade-old map remains in effect until a new one is approved. 
"A new plan should not be rammed through the process without due consideration for what the court has said about redistricting," said Senate Minority Leader Jay Costa, D-Forest Hills.
There is a hearing today on the Republican-led request to delay the primary from happening. 

What does that mean for Pennsylvania within the context of the presidential primary calendar? 

First of all, any time a primary is shifted or is forced to shift back the date on which its primary is held, it runs the risk of losing influence over the process. The discussion around this Republican nomination race has refocused lately on the delegate count, but even before the contests started, that April 24 regional primary date -- where Pennsylvania is currently scheduled -- was seen as a possibility for where (presumably) Mitt Romney might push past the 1144 delegates necessary to lock up the nomination. At the very least, that cluster of contests would conceivably push the former Massachusetts  governor to a delegate lead that may be too steep for his opponents to overcome. To move back beyond that date, then, would mean Pennsylvania would potentially be pushed out of the window of decisiveness in this race. 

But there is a caveat to that. Texas may also -- for similar reasons -- be forced to hold a later presidential primary. And Texas, along with potentially Pennsylvania moving back, shifts a lot of delegates -- 227 total delegates -- further back in the process. That may affect the delegate counting calculus at that point. Of course, the March contests will go a long way toward determining how detrimental a move back for Pennsylvania would be.

...or if it is consequential to the the process determining a presumptive nominee by that point.

A tip of the cap to Tim McNulty at the Pittsburgh Post-Gazette for passing this news along.

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Friday, December 16, 2011

Deal Would Push Consolidated Texas Primary back to April 3

Add one, subtract one.

As soon as Ohio rejoined Super Tuesday on March 6 an apparent deal between the Republican Party of Texas and the Texas Democratic Party has the Lone Star state on the verge of shifting its presidential primary -- along with the primaries for other offices -- back a month from March 6 to April 3. The deal was necessary to accommodate the need for time for the federal courts to resolve the redistricting dispute in the state, redraw the lines and leave enough time for the elections to be properly administered. With Texas now shifting off the Super Tuesday line on the calendar -- pending approval from the federal district court in San Antonio1 -- the already less Super Tuesday relative to 2008 loses 155 Texas delegates. That leaves Super Tuesday as the date on the calendar with the most delegates at stake and brings April 3 -- with the addition of Texas -- up to the date with the third highest number of delegates on the line in the Republican nomination race; just ahead of April 24 (New York, Pennsylvania, etc.) and behind only Super Tuesday and June 5 (California, New Jersey, etc.).

However, the move does have consequences as FHQ alluded to in our Texas post this morning. Sure, Rick Perry is going to have to win some contests (Iowa and South Carolina???) to survive long enough for the southern contests on March 6, but now the Texas governor can no longer rely on Texas on Super Tuesday. And once this gets into March, it may take more than wins -- more like wins with attendant large delegate margins -- to survive and advance. In other words, with Texas pushed even further back on the calendar, Perry's chance of survival, much less a path to the nomination, takes a hit.

And even though FHQ got some resistance from the Republican Party of Texas -- the communications director and an Executive Committee member -- on the likelihood of RPT altering its allocation rules from proportional back to conditional winner-take-all, I can't help but wonder if the party may petition the RNC for a shift. As of now, the RPT line is that the October 1 deadline to finalize rules with the RNC has passed and the current proportional allocation is set in stone. [Sorry. These sorts of questions haunt me. It is a constant quest for a definitive answer where no wiggle room exists.] There may be no wiggle room here, but RPT could argue that their decision-making calculus would have been different had they known the courts would intervene in the redistricting fight and put the March 6 primary date in jeopardy. Now, the RPT argument is that the matter is settled and such a plea would fall on deaf ears at with the national party. That is entirely possible and signals that there may be no desire to make a change within the party. That may be true now, but this bears watching over the next [insert some definite period of time here]; whether sentiment within the state party changes on the matter of delegate allocation.  

1 According to those close to the process, the courts left it up to the two state parties to hash out.

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Deal to Conditionally Split April Texas Primaries Emerges in Ongoing Talks to Resolve Primary Date Dispute

Nolan Hicks at the San Antonio Express-News is reporting that multiple sources have confirmed that there are ongoing discussions about a deal moving a consolidated Texas primary -- including the presidential primary -- from March 6 to April 3. Furthermore, congressional, state legislative and other races awaiting new district boundaries would have primaries on that April date dependent upon whether the time between the primary and a court decision on the lines allowed enough time for implementation. Without the necessary time, those primary elections would be moved back to a late May date.

There are a host of interesting questions here, but FHQ will focus on the presidential primary aspect of this from which two main questions arise. First of all, this opening brings back to the fore the question discussed here yesterday: Would a shift  to a post-April 1 primary date cause the Republican Party of Texas to reconsider its method of delegate allocation -- switching back to a conditional winner-take-all system based on both the statewide results and the congressional district results from a proportional allocation?1 On that point, FHQ actually got some interesting pushback from Chris Elam, the Republican Party of Texas communications director. In a series of Twitter exchanges -- best summed up here -- Mr. Elam made clear to FHQ that the current RPT delegate selection rules were submitted to the RNC before the October 1 deadline laid out in the Rules of the Republican Party, were approved and are set in stone now that that point has passed. Asked about any desire within the RPT to change back to winner-take-all rules, Mr. Elam said that it was premature to speak of such a change given that no decision has been made by the courts -- nor has a deal been cut between the two state parties -- and deferred to the unanimous vote on the rules change at the State Republican Executive Committee meeting on October 1.

There is nothing wrong with that explanation, but FHQ still detects a bit of wiggle room for the RPT on this issue. Let's look at those RNC rules a little bit more closely. Rule 15.c.12:

No delegates or alternate delegates shall be elected, selected, allocated, or bound pursuant to any Republican Party rule of a state or state law which materially changes the manner of electing, selecting, allocating, or binding delegates or alternate delegates or the date upon which such state Republican Party holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention if such changes were adopted or made effective after October 1 of the year before the year in which the national convention is to be held. Where it is not possible for a state Republican Party to certify the manner and the date upon which it holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention in effect in that state on the date and in the manner provided in paragraph (e) of this rule, the process for holding the presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention shall be conducted in the same manner and held upon the same date as was used for the immediately preceding national convention.
There are few things there. One is that quite a few states made decisions to set primary or caucus dates after October 1. The four carve out states -- Iowa, New Hampshire, Nevada and South Carolina -- and just yesterday, Ohio, all set dates following the deadline codified in the rules. Rule 15.e goes on to describe the possibility of a waiver being granted for states whose parties cannot -- for whatever reason -- meet that deadline. That FHQ has heard, there has been no talk of any of those five states asking for or being granted a waiver on those grounds. [That doesn't mean there wasn't one.] The four carve out states may have been granted such a waiver or simply just blamed the Florida move for setting up a post-October 1 domino effect. In Ohio, the Republican Party shrewdly included a conditional provision in their RNC-sanctioned rules; adding a proportionality element to the at-large delegate allocation should the primary be scheduled before April 1. In the event that the redistricting dispute in the state left the primary date unsettled or forced it to a post-April 1 date, the rules would revert to winner-take-all statewide-congressional district as they had been in 2008.

Again, if RPT has the desire to change the delegate allocation rules, could it not argue before the RNC that the decision to shift to a post-April 1 date was triggered by court action that was out of the state party's hands to a great degree? In other words, could the argument successfully be made that the decision-making pre-October 1 would have been different had the party known it was going to have a post-April 1 presidential primary? Possibly, but it could also be that such a move is more trouble than it's worth and that Texas National Committeeman and RNC legal counsel, Bill Crocker, may not want to push too hard on that issue. [The counterargument is that Mr. Crocker would be well-positioned to help push such a change through.] Much of that depends on whether the desire is there within the RPT to make that happen. It's a big if.

...but that brings us to...

The second question has to do with how Texas Governor Rick Perry fits into all of this. It is apparent that the Perry campaign wants the primary as early as possible. It is also apparent that the Republican Party of Texas wants to follow the rules from the RNC.  But it is still perplexing to FHQ that any change was made at all to the Texas delegate selection rules. The rules utilized by the state party in 2008 would have been compliant with the new RNC rules before or after April 1. Again, the 2008 rules were winner-take-all by congressional district and statewide conditional on a candidate receiving over 50% of the vote. That is something that is completely within the letter of the law in the new RNC rules. Period.

So why the change? That is a very interesting question. If we assume -- as appears to be the case with the early primary date preference -- that the Perry campaign had some motivation (influence?) over the process of setting/maintaining the primary date, then was there some motivation to switch to proportional allocation as well?2 The San Antonio Express-News article indicates that there is some pressure on RPT chair, Steve Munisteri, to keep the primary in March, so it is not a stretch to consider that the Perry camp put similar pressure on the party to change the rules.

But why? If the Perry folks are banking on an early Texas primary, why dilute the influence of the state by making the results proportional when that is not required? Why not leave the winner-take-all element in the plan in order to run up the score in the delegate count? It is all curious.

Now sure, the extent to which the Perry campaign was involved in all of this is an unknown and this is all quite speculative. However, it is undeniable that the Republican Party of Texas did not have to alter its delegate selection rules to comply with the RNC rules changes on proportionality. Something drove that decision and if it was even partially due to the Perry campaign, it is a counterintuitive calculation on their part with a delegate count as the backdrop.

Hat tip to Michael Li at for the news of the deal.

1 Yes, that would require those newly drawn congressional district boundaries, but recall that that portion of the plan -- the actual assignment of delegates based on numbers disaggregated into the new districts -- does not happen until the state convention. That isn't an issue, then.

2 It is worth noting that Perry signed the bill that dealt with the primary -- SB 100 -- before he got into the race. The bill maintaining the March 6 primary date was signed in June before Perry entered the presidential race in August.

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Wednesday, December 14, 2011

A Few Notes on the Impact a Later Presidential Primary Would Have in Texas

Now, FHQ may have fanned the flames on this a little in the last line of last night's post on the hearing over the 2012 Texas primary election schedule. But let's take a step back for a moment and look at what happens in the event that the San Antonio district court forces a unified election on a date later than March 6. For starters, it seems like all parties to this case agree that it is probably impossible to resolve the issues inherent in the redistricting case, draw maps and have a timely response to those changes from local elections officials and filing candidates. In other words, either the Republican Party of Texas gets its wish for two primaries -- with the presidential primary continuing on March 6 -- or there will be a unified primary on some later date.

And yes, as Burnt Orange Report said last night, that we're talking about a state -- much less two -- changing its date in the middle of December before the primary season starts on January 3 is news enough. But that is where FHQ parts ways with how BOR assesses the impact of a potential date change for the Texas presidential primary. Well, FHQ agrees that it is an open question as to whether a later date -- especially post-April 1 -- would trigger a change in the winner-take-all versus proportional allocation methods within the Republican Party of Texas. But we will not overstate the nature of those potential changes.

As has been the case for a majority of this cycle, the broader discussion of the RNC delegate selection rules changes is being cast in black and white terms; that in this instance, Texas would be moving from completely proportional back to completely winner-take-all. That just simply is not the reality. A rules change (More on that in a moment.) that essentially reverted the Texas delegate selection process to the 2008 method -- see sections 8 and 9 toward the bottom of this RPT rules document -- would mean that Texas would change from being proportional to winner-take-all statewide and winner-take-all by congressional district. The winner-take-all allocation -- whether the at-large delegates based on the statewide vote or the three delegates per district based on the congressional district vote -- would only be triggered if one candidate won over 50% of the vote. Otherwise, the allocation would be proportional. And yes, there are some quirky combinations in there where the statewide vote could be winner-take-all for one candidate and another candidate wins a handful of congressional districts or where the statewide vote triggers proportional allocation and two or more candidates split winner-take-all allocation in some districts while others remain proportionally allocated.1

Again, there is a significant amount of gray area between those two -- proportional and winner-take-all -- extremes in the Republican National Committee delegate selection rules.

The more important question if the courts force a later presidential primary date on the Republican Party of Texas is IF -- or can -- the party will decide to revert to their pre-October State Republican Executive Committee meeting rules. [Here are the current rules.] Let's take the CAN first. In conversations with Texas Republicans, FHQ has always been told that RPT is like the RNC: rules changes can only be made at the state or national convention. Sure, the RNC changed that for the first time in the post-reform era during the 2008 convention, but the RPT has an out. In the case of emergencies the party can make rules changes outside of the state convention setting (see Rule 1C). A court order mandating a later presidential primary date may be such an emergency.

But would the party be motivated to make that change in the event the primary gets pushed back beyond April 1? In defense of the winner-take-all rules and a first Tuesday in April primary date, RPT chairman Steve Munisteri in an open letter to Texas Republicans made clear that the party was concerned it would lose half of its delegates to the convention if it was forced to keep the March 6 date and not switch to proportional allocation. [At the time they were arguing that the rules could not be changed outside of the convention.] Having proven that it prefers the winner-take-all allocation -- which was fine with the new RNC rules given the 50% barrier for winner-take-all allocation -- and that it can and has the willingness to change the delegate allocation rules away from the state convention, the Republican Party of Texas would presumably move to readopt the triggered winner-take-all rules.

...and that may happen with some Republicans in coming out in favor of one unified primary.

There should be some resolution to this by the end of the week as hearings in San Antonio are scheduled for both Thursday and Friday.

1 The proportional allocation of 3 congressional district delegates -- assuming no one candidate receives over 50% of the vote -- is done by allocating two delegates to the top vote getter and one to the runner-up. That allocation is in order so long as those two candidates are also over the 20% mark in the vote total within that district.

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Tuesday, December 13, 2011

Republican Party of Texas Primary Election Schedule Defense is, uh, Interesting.

There was something that struck FHQ as odd in the filing the Republican Party of Texas submitted to the San Antonio Federal District court on Monday. [That filing was released today. -- via]

Now, this is the same court whose decision in the Texas redistricting case was met with a stay from the US Supreme Court late last week. That decision has sent the lower court -- and the state parties in Texas -- scrambling to square the disarray the uncertainty into which the redrawn maps have thrown the 2012 primary season across Texas. The Republican Party of Texas wants to maintain the March 6 primary for the presidential nomination and a host of other statewide races and push the primaries for other offices -- those requiring the redrawn maps -- to May 29. RPT placed the greatest emphasis on the impact moving the presidential primary would have on the local party level:
Munisteri cannot emphasize enough to this court that moving the date of the Texas presidential primary, aside from placing difficulty, nay nearly impossible burdens on the administration of the Republican Party at all levels, but especially at the most basic level where it is wholly conducted by volunteers, will cause this court to likely change the result of the national Republican nomination for President of the United States. 
To be clear, the Republicans were most concerned in this filing with the possibility of the presidential primary being moved back to May 29 as well; a date that would make completing the process prior to the early June state convention difficult. The party also argued that moving the presidential primary would force local elections officials to find alternate venues for precinct conventions and pay for those from personal funds. But then came the interesting argument from the party: That abandoning the March 6 presidential primary date would affect the balance achieved by the Texas legislature in setting that date to "preserve this States' [sic] voters a voice in the nomination of the Republican and Democratic nominees for President of the United States." The party goes on to argue that it even changed from winner-take-all delegate allocation rules to proportional in light of requirements from the Republican National Committee in order to preserve that voice.

Now sure, moving the presidential primary all the way back to May 29 would more than likely push Texas out of the window of decisiveness in the Republican presidential nomination race. And that would make the shift from winner-take-all to proportional rules all for naught. But it appears as if the Texas Democratic Party was ready with a counterproposal that would keep all the primaries on one date -- the position they want. Instead of May 29 as the consolidated primary date, the Democrats are arguing for an April 3 primary date.

That date grabbed FHQ's attention. [In fact, I may be the only one.] Why? That was the date that some Republican legislators were pushing to move the primary to back in the spring during the legislature's regular session. Not only that, but that was a date that the Republican National Committeeman (and now RNC legal counsel) Bill Crocker and Republican Party of Texas Chairman Steve Munisteri argued for in a hearing on the primary date legislation before a House committee. Look at what FHQ had to say about that hearing in April 2011:
The committee substitute to HB 111 discussed in the hearing would move the presidential primary back to first Tuesday in April. That move was supported by both Republican National Committeeman from Texas, Bill Crocker, and Texas Republican Party Chairman, Steve Munisteri. Both cited the need to comply with national party rules concerning timing and stressed the potential penalties associated with violations (half or more of the delegation). That is not a concern on timing but is based on the rules regarding Republican delegate allocation in the state. As was the case for the Republican National Committee in every post-reform cycle but 2012, the Republican Party of Texas cannot change its rules except at its convention and the party would need to change its winner-take-all allocation method to comply with the RNC rules if the state maintained a March primary. In other words, the state party could not make the necessary change to its method of delegate allocation until its convention following the primary in 2012. This concerned both Republicans for the potential penalties associated with an inability to make that change. Interestingly neither Crocker nor Munisteri mentioned the potential for Texas losing significance for moving to a later date and both touted the possible advantages of not only maintaining the winner-take-all rules with an April primary, but also the additional significance that would carry if the nomination race was still being contested at that point.
Again, those matters are out the window if the court pushes a May 29 date. The RPT is absolutely right in that case. However, the court may be sympathetic to the April 3 date Texas Democrats are rallying behind. The only question is whether the court -- or the parties for that matter -- feels the redistricting plan will be in place by that point. It is already uncomfortable with the March 6 date for offices that require those lines, but is that extra month enough time?

...and will the Republican Party of Texas consider shifting back to winner-take-all delegate allocation rules if so?

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Monday, December 12, 2011

Is the March 6 Texas Presidential Primary Really Safe from the Court Squabble Over Redistricting?

Over the weekend, FHQ received several requests/queries for some sort of comment about the impact the Supreme Court's Friday stay in the Texas redistricting case would have on the presidential primary in the Lone Star state. Will the decision have an impact? Yes and no.

There are two ways of thinking about this. One is from the standpoint of the delegate selection process. If the Republican Party of Texas allocates some of its delegates based on the results of the votes in the congressional districts, then how can the primary go forward in March without a new district map in place? The second is more of an administrative issue. How does the addition of another election affect the actual administration of these several elections? What are the costs? Setting aside the latter for the moment, the impact on RPT's presidential primary is minimal. Yes, there is a congressional district element to the allocation of delegates in the Texas Republican plan, but the point in the process where that intervenes decreases its impact. Let me explain.

There are a couple of elements involved here. First of all, neither the state of Texas nor the Republican Party of Texas has the luxury of leaning on past congressional districts. If this was simply a matter of divvying up the same 32 districts that existed before the Census in a way that accounted for population shifts within the state over the last decade, then that's one thing. But Texas has added four congressional seats and that affects the delegate apportionment from the national party. It is important to note that using the congressional district units in this process is something that is completely up to the state parties (on both sides). So while that element is part of the delegate selection process, it is only there so long as the Republican Party of Texas wants it there. Those sorts of decisions -- by the state parties -- is something in which the courts have continually refrained from becoming involved. They -- the courts -- just don't weigh in on those sorts of political -- intra-party -- questions. Instead they will defer to the state or national party's judgment. Now, where the courts may be sympathetic on these sorts of issues is when the administration of elections is affected. But I'll have more on that in a moment.  

The other part of this is the actual sequence of the Texas delegate allocation process. Texas represents a rare example of a state that opted to abandon completely its winner-take-all allocation rules of the past, instead adopting a proportional means of allocation in 2012. That proportional allocation is not for just a sliver of the overall total. No, Texas Republicans switched to a completely proportional allocation method for 2012.1 I don't want to preempt a post on the Texas delegate selection rules I'm working on, but suffice it to say, the congressional district portion of the allocation will not be an issue until and unless the redistricting court dispute plays out past the state convention in early June. [With the courts already discussing a bifurcated primary process with a March primary and a May primary, the courts are of the opinion that the dispute will be resolved in time for that May primary to be held. That, of course, precedes the June state convention.]


Well, under the new rules, the candidates' portion of the vote serves as an umbrella over the entire process. Each set of delegates -- whether at-large or congressional district -- is allocated proportionate to a candidate's share of the statewide vote. Well, truth be told, it is, in fact, the total number of delegates that are allocated proportionally. The at-large and congressional district distinctions are only made as a means of identifying the actual delegates and the candidates to whom they are pledged. [I'm already pushing back against that particular statement, so I know others will. Bear with me and take my word for it for the time being. I'll have a post dedicated to the Texas plan soon.] Much of that business is taken care of at the state convention anyway, so the RPT will not need the new district boundaries in place until then for the purpose of delegate allocation. On the evening of March 6, then, we'll know the number of delegates each candidate will have from Texas. We just won't know who those delegates are. [That's not a point that most people are concerned with anyway; especially if we're in the midst of a delegate counting under a microscope at that point.]

In terms of the process (within the party), then, Friday's stay is not likely to have much of an impact on the presidential primary. However, strain is already beginning to show as far as how this will affect the actual administration of the, now, two primaries that are supposedly going to take place in the spring. We move from a party issue to one that concerns the state, county and local administration of elections. Part of the reason the Texas primary stayed in March was because there was a tremendous amount of pushback from the local level on the effects a proposed move to April would have had (see links in footnote below). I spent enough time following the primary movement discussion to know that there are enough lines drawing various boundaries for various offices across Texas to make anything other than the status quo nearly impossible for local elections officials to make work -- at least that is the argument made whenever the possibility of a change to the system arises. That was witnessed in legislative hearings back in the spring and has already come up in the context of this redistricting discussion. The question presidential primary followers need to focus on as this proceeds is how sympathetic the courts will be to that complaint/argument from local elections officials. The answer to that question will hinge on the extent to which counties can make the argument that the additional election causes financial duress.

That may or may not push the presidential primary to a different date, but the allocation of delegates will be unaffected either way.

1 Texas legislators and the RPT were fearful -- unnecessarily, seemingly -- of the backlash from the RNC if it did not make changes to its delegate allocation formula from 2008. Of course, the old plan seems to have followed the guidelines of "proportionality" from the RNC as they were. Alas, changes were made.

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Friday, August 28, 2009

Speak of the Devil: The Texas Two-Step in Court

...and this is something that the Democratic Change Commission will want to consider if the primary/caucus system in Texas comes up in the discussion at its meeting tomorrow in St. Louis. It is even more interesting because this is bound to come up in the session.

Earlier this week, the US District Court covering West Texas denied the Texas Democratic Party's request for a summary ruling in a case involving the pre-2008 changes to its method of delegate selection. [Here is the full ruling.] The case revolves around a challenge to the Texas Two-Step (primary-caucus combination) on the grounds that it violates the preclearance provisions laid forth in Section 5 of the Voting Rights Act. Honestly this is a very clever way of challenging the system. What is Section 5, you ask? According to DOJ:
"Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable."
Most of the jurisdictions covered are in the states of the former Confederacy and as the map below (also from DOJ) indicates, Texas is on the list. The catch is that Section 5 typically applies to election procedures for general elections and primaries for state and local offices, not to presidential nomination races. It is a logical extension though.

[Click to Enlarge]

As I mentioned the other day, delegate selection plans are submitted by each state to the (national) Democratic Party for approval, but these have not been the subject of a Section 5 preclearance review in the past. Though, it may be a logical extension of the law, it has, to this point at least, been assumed that the national parties held the right to make the determination of what was admissible in terms of presidential delegate selection on a state by state basis.

And the Democratic Party has been approving the Texas Two-Step for years. This isn't a new conflict. In 1988, for instance, Michael Dukakis won the Texas primary and Jesse Jackson won the caucus (There's more about that here.), only there wasn't nearly as much resulting tension as there was between the two main candidates in 2008. Also lacking in 1988 was the fact that less inclusive segment of the plan (the caucus) overturned the results from the more inclusive other segment (the primary). But the thing about the American legal system is that it is not proactive. The legality of something has to be challenged for it to even make its way into the judicial system to be questioned.

However, it isn't really the Texas Two-Step that is being questioned here, but the delegate equation behind it. Specifically, that past voting for the Democratic Party candidate in a statewide campaign in jurisdictions would determine the strength of that jurisdiction in terms of delegates. That's nothing new. In fact, past voting history and population are used by the national party to determine how many delegates each state gets. And the states, in turn use a similar formula to allocate them on their level.

However, the plaintiffs in the Texas case are arguing that the support of 2006 Texas Democratic gubernatorial candidate, Chris Bell, had the effect of undervaluing Latino voters in state Senatorial districts (the jurisdictions in question. Texas used Senatorial districts whereas most of states divvy up delegates across US House districts.). The problem was that the Texas Democratic Party's formula used raw vote totals instead of the percentage of the vote in Senatorial districts. In essence, even though majority white districts provided Bell with more total votes than some majority Latino districts, they were allocated more delegates despite the fact that the percentage of support for Bell in Latinos districts was higher. When population of the district was accounted for, then, those districts were diminished in value.

So while I'm tempted to use the court's words* against it (This is a minute detail.), it is a fairly consequential statistical blunder in my view whether it was intentional or not. The type of snafu that will get you taken to court.

This is very interesting stuff and something that the Democrats at the Change Commission meeting tomorrow would be well-advised to consider if the Texas Two-Step comes up (or even if it doesn't).

*"Our decision does not mean that political parties must preclear every minute change in their operating procedures. Instead, we closely follow Morse in concluding that political parties must seek preclearance for a change that affects voting that the party promulgates under the explicit or implicit authority of a covered jurisdiction and that presents no significant First Amendment concerns. We therefore hold that Morse controls, that the TDP has provided no specific explanation as to how a requirement that it preclear its delegate allocation formula impacts its associational freedoms, and that this case is justiciable. Accordingly, we DENY the TDP's motion for summary judgment." [from the ruling linked above]

A tip of the cap to Ballot Access News for the link.

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Saturday, February 28, 2009

The Supreme Court Weighing in on Frontloading?

No, this isn't happening (...yet), but I was asked about the possibility of the Supreme Court allowing the parties' wishes to take precedence over the actions of state governments setting a presidential primary date not in accordance with party rules. [This question arose over at DemConWatch from a discussion over my 2012 Primary Calendar Projection.]

The parties do have the right to set the rules of their nominations. Last year when the Clinton camp was up in arms over the "at-large" casino caucuses in Nevada -- the ones they thought would give Obama a distinct and unfair advantage -- the courts refused to hear the case, falling back on the precedent set in other cases that the party dictates who its nominee will be.

And this has applications in other areas as well. The main conflict has been over the rules concerning how open a primary is. On the question of who can participate in a party's nomination process, the Supreme Court has said that the parties get to decide. In other words, if there is a conflict between state law and the party's wishes, the party gets its way.

This has worked in both directions: parties not wanting closed primaries and parties not wanting open primaries. The case that started all of this was the Tashjian case. Basically, a thirty year old Connecticut law requiring closed primaries came under fire when the state's Republican Party wanted to open their process up to independents as well. The result: The party's right to free association was upheld and independents were allowed to participate in the primary.

On the flip side, California Democratic Party v. Jones established that if a party didn't accept a state-mandated blanket primary as the primary modus operandi, the requirement had to be scrapped. And as the two major parties (and others) didn't accept the California blanket primary, it hit the road.

So what does all this have to do with primary timing? [Yeah, I go on a bit, don't I?] Well, you'd think that if a state law requiring a state to hold its primary on a date the parties didn't like, the parties would get their way. It seems a reasonable extension of the legal doctrine established above, right?

If the DNC says, "Massachusetts, you're going on the third week in May," and the Bay state government doesn't like it, then too bad. Well, what about the RNC? Let's say the GOP says that Massachusetts is fine where it is during the first week in February. Fine, the GOP can go in February and the Democrats can go in May.

Here's the rub, though, and this is where the timing conflict breaks with the opened/closed issue. The state picks up the tab for conducting the primary election. Splitting the two parties up like that doubles the cost (at least theoretically). That places an undue financial burden on the state all of a sudden.

There are a couple of questions that emerge here:

1) What about a state like Montana, where in 2008, the GOP went on February 5 and the Democrats held their delegate selection on June 3? Well, in that case the Montana GOP voluntarily opted out of the state funding to fund its own caucus. Nebraska did the same thing on the Democratic side. And Idaho Democrats have opted out of the state-funded primary at the end of May for years.

2) This one is more important. What if the GOP went along with the plan. Take the Massachusetts example. Let's say that both the DNC and RNC agree that the Massachusetts primary should be in May. Well, now there's a case; one the parties can win because the financial burden is now gone. Massachusetts would likely be required by the courts to shift its primary back a few months since that's what both parties wanted.

But for the Supreme Court to weigh in on the side of the parties on this issue, it would likely require a coordinated calendar assembled in a bipartisan fashion. There are certainly efforts being made on this front, but those competing interests -- that zero sum game where one tiny shift could fundamentally shift the balance in an election toward one party -- will stand in the way of that vision coming to fruition.

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Wednesday, November 12, 2008

A Check on Frontloading from the Courts?

Now here is an interesting twist to the Florida primary debacle of 2008 and it has implication for the future of frontloading.

The Case: Ausman v. Browning

The Argument: The Florida legislature violated the national Democratic Party's right to free speech when the legislature set the Sunshine state's primary for January 29, 2008. In other words, the national party was unable to choose its nominee in Florida according to the Florida Delegate Selection plan approved by the Rules and Bylaws Committee. [Yeah, remember them?]

This is fairly significant (...whether it is getting much press or not). If there is one thing we know about the courts' involvement in these sorts of disputes, it is that they typically side with the parties. A recent example of this was when the within-casino caucus sites were challenged by the Clinton campaign before the Nevada caucuses last January. The courts yielded to the parties (and the pre-approved delegate selection plan) in that instance.

One byproduct of the plaintiff winning this case (...and any subsequent appeals) is that, if anything, states, and the actors setting the date on which their delegate selection event is held within them, would seemingly have to adhere to the delegate selection plans that are usually due in to the national party by the end of the summer before a new election cycle begins. For 2008, both national parties had September deadlines. In Florida and Michigan in 2008, those plans were violated when their legislatures shifted up their primary contests.

The bottom line is that the national parties would gain a bit more power in this process based on the approval power they would (and do, for that matter) hold over states' delegate selection plans. So, if the courts validate these plans from each state, they essentially become something similar to a binding contract on allocating delegates. And the date on which a primary or caucus is held is a vital component of those plans.

Does that prevent rogue states from popping up? No, but it does give the national party some potential legal standing to challenge them in court if it were to come to that. This case reaches "one to watch " status here at FHQ.

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