Floor Amendments Strip Out April Presidential Primary Provision from Texas House Bill

The Texas House on Tuesday considered the House Committee Substitute to SB 100. The bill, as it emerged from the Defense and Veterans' Affairs Committee, would have shifted the Texas presidential primary -- as well as the primaries for statewide and local offices -- from the first Tuesday in March to the first Tuesday in April. One of the five amendments adopted on the House floor yesterday struck that part of the legislation and substituted the original Senate version of that section that addressed just the timing of the runoff election.

That means that the Texas legislature has chosen to go the constitutional amendment route. The debate was over whether to move the primary date back or to change the filing deadline date to comply with the mandates of the federal MOVE act. With the former now eliminated as an option, the decision has been made to change the filing deadline. But that requires a slight change to the resign-to-run provision in the Texas constitution that requires politicians seeking higher office to resign their current position if more than a year remains in the term of that position. The filing deadline has subsequently been set for January 2 in the year of an election, allowing ambitious politicians the ability to throw their hats in the ring of a contest for higher office with less than a year on their current term. In other words, they don't have to resign. To shift that deadline into December would force potential candidates' hands. The only way to remedy that discrepancy in light of the requirements of the MOVE act is to amend the constitution to change the resign-to-run provision in some way.

Such an amendment has been running along a parallel track to SB 100 all along. SJR 37 would amend the Texas constitution and lengthen that window (the time left in the term of one office) from one year to one year and thirty days. That resolution passed the state Senate in mid-April and passed the House and was enrolled yesterday. The change would allow candidates holding lower office to file for a higher office in December of the year preceding a general election without having to resign their current office.

Constitutional amendments aside, the bottom line here is that Texas will maintain its first Tuesday in March presidential primary. Assuming Colorado and Missouri finalize their moves to March 6, Texas, Oklahoma, Missouri, Tennessee, Colorado and Virginia would form a contiguous grouping of contests at the beginning of the window in which primaries and caucuses can officially be held.

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Time Running Out, House & Senate at Odds on Texas Primary Decision

May 30 is the final day of the 2011 Texas state legislative session, and while there are any number of important issues before legislators as the session draws to a close, FHQ is keeping close watch over SB 100. The bill seeks to bring the Texas elections schedule in line with the mandates put forth by the federal MOVE act. We have discussed the details elsewhere, so I'll spare you this time around. The crux of it is that there are now two options facing the full legislature.

The Senate passed a bill that keeps the presidential primary on the first Tuesday in March but shifts the filing deadline up a couple of weeks. The latter would require a constitutional amendment which is a different and more time-consuming option. The House is currently considering a version of the bill that would leave the filing deadline -- and constitutional amendment -- issue alone, focusing instead on moving the presidential and state/local primaries back from the first Tuesday in March to the first Tuesday in April. The House Defense and Veterans' Affairs Committee has voted in support of the April primary plan, and the bill is now at a stage where it should be placed on the calendar for consideration by the full House some time next week.

Should the full House sign off on the committee-endorsed plan, it would put the House and Senate at odds with each other and force a conference committee to hammer out these thorny issues. Both the House sponsor of the bill, Rep. Van Taylor (R), and the Senate sponsor, Sen. Leticia Van de Putte (D), are of the opinion that this riddle can be solved by the time the legislature adjourns the week after next. Yet, that doesn't mean it will be easy as FHQ surmises Ms. Van de Putte's comment on the April primary idea suggests:

State Sen. Leticia Van de Putte, R-Plano, said both Democrats and Republicans in the Senate "are vehemently opposed to a primary in April." Among the concerns is that any runoffs would not receive much attention as they would be held in late June.

Bipartisan opposition to the House plan exists in the Senate, then. But they may be stuck. The constitutional amendment path is going to be difficult to complete in time and it isn't clear that is something that would pass the legislature either. What's odd is the partisan juxtaposition on this issue in Texas relative to what's happening with primary movement nationally. Democrats nationally, where they have been able, have moved back into April or later in an effort to maximize their delegation size for 2012. Republicans, by and large, have chosen to go as early as possible except in states where winner-take-all allocation rules are valued over early influence over the Republican nomination. Texas Democrats -- at least those in the legislature -- are not thus far in support of this move and Texas Republicans, wary of penalties from the national party, have come out in favor of an April primary. According to Sen. Van de Putte, though, that group of Republicans does not include state Senate Republicans.

There are no easy options in Texas on an issue that will have to be fixed to ward off penalties from both the RNC (delegate selection rule mandates) and the federal government (MOVE act mandates), and it remains to be seen whether all of this can be fixed before May 30. FHQ will be watching.

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Texas House Committee Report with April Presidential Primary Provision is Posted

After having passed the House Defense and Veterans' Affairs Committee over a week ago, the House Committee Report for SB 100 has now been filed with the committee coordinator and distributed/posted on the Texas legislative website. That version, which includes a new provision -- different from what the state Senate passed -- to move the Lone Star state's presidential primary (and those for other statewide offices as well) back to the first Tuesday in April, now moves to the floor for consideration before the full state House.

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A Follow Up on the April Presidential Primary in Texas: Signals from the Republican Party of Texas

Though news of the Texas House Defense and Veterans' Affairs Committee having unanimously passed SB 100 has been out for over a week, little in the way of confirmation that that committee version included a provision for an April presidential primary has emerged. Yes, some news outlets reported it, yet there was no new version -- one that includes the April primary amendment -- posted on the Texas legislature website. Unfortunately, that is still the case, but now there is a slightly more official source confirming the April primary provision in the bill. The Republican Party of Texas has confirmed it by communicating the change to its members. From the RPT press release:

As has been mentioned in the last two Chairman's Updates for March and April, the RPT has been closely following the progress of SB 100, specifically as it applies to the date of the Texas Primary Election. To give some background - the federal MOVE Act has been crafted to give our overseas military a greater amount of time to receive and cast their vote by mail. For our state to comply with the MOVE Act, there are changes mandated to the election calendar that lengthen the period of time between filing for office and election day. In the case of Texas, our best solution is to move the primary date back into April with a runoff date in June. In addition to changes mandated by the MOVE Act, the Republican National Committee has passed rules which penalize states which hold their primary elections before April and do not apportion their delegates in direct proportion to the popular vote. Texas is such a state. Thus, should Texas keep its primary date on the first Tuesday in March, those rules would potentially take away half of the Texas delegation strength to the Republican National Convention in 2012.

As FHQ has previously noted, the RPT is very wary of the penalties associated with the mandates in both the MOVE act and the RNC delegate selection rules. The party cannot change its winner-take-all method of delegate allocation outside of a state convention and the party values following the rules over taking the sanctions in order to preserve an earlier and more influential primary date.

Texas is the rare exception in this Republican-only nomination cycle of a Republican-controlled state moving back beyond March 6. A real dichotomy has emerged between Republican and Democratic-controlled states in terms of their primary movement. Forced to change primary dates in order to comply with the timing aspect of the national parties' delegate selection rules, Democratic-controlled states -- with nothing on the line -- have opted to shift back to April or later dates in order to maximize their presence at the Democratic Convention in Charlotte (see Maryland, DC, and the Democratic caucus states). Republican-controlled states, on the other hand, have chosen to move back, but to move back only as far as the earliest date that the parties will allow (see Oklahoma, Tennessee). States where the Republicans control some part of the state government, and thus have some form of veto power have also prevented moves back beyond March 6 (see Virginia and most likely Missouri and Alabama). New Jersey and Texas are the exceptions thus far. Texas, owing to the rules, has to move back or change other, more complicated matters like the resign-to-run rule as well as the filing deadlines attendant to that (Georgia may fit that category as well.). New Jersey, meanwhile, looks destined to move simply because Governor Christie (R) is seemingly in agreement with the Democratic-controlled legislature on consolidating the presidential primary with the primaries for state and local offices in June.

As state legislatures finish up their business for 2011 over the next few months, that will be the pattern to watch. There is an additional group to add to the mix as well: rogue states. Florida, Michigan and Arizona are increasingly likely to defy the RNC rules in timing their delegate selection events. And no, this group does not include states like New York, Delaware and Wisconsin, which have done nothing as of yet to change the dates of their respective delegate selection events.

A hat tip to Tony Roza at The Green Papers for passing the news of the RPT's press release on to FHQ.

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Texas Inches Closer to an April Presidential Primary. ...or does it?

As we have mentioned here at FHQ in the recent past, changing the scheduling of the various elections in Texas in order for the Lone Star state to comply with the federal MOVE act is and has proven to be an extremely complex task. One piece of that puzzle that has been discussed is shifting the state's presidential primary back from the first Tuesday in March to the first Tuesday in April. That effort -- one supported by both the major parties in Texas -- got a boost late last week when a Texas House committee substitute to SB 100 was unanimously passed by the House Defense and Veterans' Affairs Committee on May 6.¹

That said, this -- the move of the presidential primary -- is anything but a done deal. That reality was made clear during the committee testimony on the the state Senate bill in the House committee. The first conflict concerns differences between the Senate-passed version and the House committee substitute. The version that passed the Senate did not include the April presidential primary provision, for starters. But that's really a minor issue in the grand scheme of the wider bill. Republicans on the floor are likely to balk at moving back, but if it means the state both doesn't comply with the MOVE act as a result and is penalized for having a winner-take-all primary in the proportional window, ² Republican members may be persuaded.

The most striking thing about the Defense and Veterans' Affairs committee meeting on May 5 was the urgency of committee chair, Rep. Joseph Pickett (R-79th, El Paso), to get something done. He stressed the fact that there would very likely be portions of the bill that committee members and the members on the House floor would disagree with, but that due to time constraints and the need to avoid the fallout for not being compliant with the MOVE act, the committee needed to pass something for the full House to consider and get into conference.

The bottom line is two fold. First, there is now an active bill before the Texas legislature to move the presidential primary back to April. As such, FHQ will reshade Texas on the 2012 presidential primary calendar map. That April move is now the more likely move.³ Second, some caution needs to be exercised here. The legislation is very likely to change on the House floor and/or in conference committee and those changes may well include a change to the April proposal for the presidential primary. That seems unlikely because of the pressure that would place on the state in terms of MOVE compliance. However, there are two apparent versions here -- both unpublished. The House committee has on several occasions referred to the Senate bill moving the primary back one week to the second Tuesday in March. There is a range then from the second Tuesday in March to the first Tuesday in April that will be discussed/debated on the House floor and in conference when the bill inevitably heads there. The House will pass a different version from the Senate. Some changes will be made to the laws governing the scheduling of elections in Texas. That much is clear. The House Defense and Veterans' Affairs committee was especially wary of the penalties associated with violating the federal MOVE act and was very open to making the necessary alterations to avoid them.

Hat tip to Richard Winger at Ballot Access News for passing along this news.

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¹ A link to the text of the bill will be made available once it is posted on the Texas legislature's website.

² The Republican Party of Texas will not be able to change the rules regarding delegate allocation from its primary before the primary is held next year. Rules changes of that kind can only be made at the state convention and the 2011 convention already occurred. The 2012 convention falls after the point at which the primary will have occurred.

³ The bill to move the Texas primary to February (HB 318) is logistically impossible given the constraints of the MOVE act.

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A Follow Up on the Later Texas Primary

Early last week FHQ discussed the several bills before both the Texas state Senate and House concerning the Lone Star state's compliance with the federal mandates in the MOVE act that passed Congress in 2009. Unlike many states, Texas does not have the problem of having to complete a late nomination process within 45 days prior to the general election. Instead, Texas has compliance issues on the front end of the calendar; having to balance a late, constitutionally mandated filing deadline (January 2 of the election year) with the need to have an advantageously scheduled presidential primary election. The 45 day buffer applies there and not to the general election. And I should say that after having just sat through the audio of the House Defense and Veterans Affairs committee meeting from April 7, that that is probably the simplest way of describing a set of issues that is complicated by a great many factors.

I won't get into it all here, but will instead keep my comments confined to the point the bills are in in the legislative process and the portions that will affect the timing of the 2012 presidential primary in the state. First of all, amending the constitution to change the filing deadline and the Texas resign-to-run provisions is a consideration, but is viewed as a last resort according to HB 111 sponsor, Van Taylor. Secondly, there is a broad, bipartisan consensus that the Texas legislature should do something to address the need to ensure that military personnel have the ability to vote and have their votes counted.

Getting to a point that that is accomplished and the various complicating factors are accounted for is the hard part though. 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.

Overall, in this particular instance, the ability to maintain winner-take-all rules was valued over the potential loss of influence by having to move the primary back. At least that was the perspective from the national party and the state party. Other Republican legislators on the floor of the House or Senate may object to moving the primary back. That said, the only people that offered testimony at the hearing that were against any provisions in the bill or the committee substitute were county-level elections officials -- and they had no issues with an April primary.

In the end, the committee substitute that includes the April primary amendment was withdrawn and the bill left pending in the committee while the sponsor considers tweaks to potentially appease the bill's detractors. So, though the April primary provision is not officially part of an amended version of the House bill, there seems to be some consensus behind the idea. The Senate side committee consideration of the companion bill (SB 100) produced a substitute that left the presidential primary alone for the time being, but as was alluded to in the House committee hearing, the Senate consensus revolved around a mid- to late March primary date instead of an April date. If the state Republican Party has its way, though, that will not remain the prevailing sentiment in the Senate.

There are a lot of issues to iron out on this one and only a month and a half to make the necessary changes and shepherd the bill(s) through the legislature before adjournment at the end of May. The bottom line is that the April date for the presidential primary seems likely at this point.

Hat tip to Richard Winger at Ballot Access News for bringing this news to my attention.

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Will Texas Move Its Presidential Primary Back?

That is the question before the Texas state legislature at the moment (via the Fort Worth Star Telegram); not because of budgets or strategy, but because of the federal mandate handed down from the MOVE act. Now, the MOVE act has wreaked havoc with some state's carefully balanced late summer/early fall primaries for state and local offices and the resulting temptation that has given some states to combine their presidential primaries with those state and local primaries. That would help not only with compliance with the MOVE act but also with state legislatures looking to trim budgets (see DC, Massachusetts and Missouri).

That isn't the case in Texas. State law requires that primaries for federal and state offices are held on the same date. Since 1988 that has meant a March primary in the Lone Star state (the second Tuesday in March from 1988-2004 and the first Tuesday in March in 2008). The budget, then, is not the concern. The 45 day window that the MOVE act requires for military service personnel abroad to have in order to fill out ballots is the complicating factor. Why? Well, the filing deadline to get on the primary ballot is set for January 2, and while that leaves over two months between that point and the March 6 primary in 2012, it won't give all local elections officials enough time to get their ballots printed up and sent out.

The filing deadline could always be changed, but that is not the quick fix in Texas that it is or has been in other states facing similar issues. The Texas filing deadline is set when it is because of the "resign to run" requirement in the state's constitution. Candidates have to resign one office in order to run for another, presumably higher, office. The deadline is set so that officeholders can do as much in the capacity to which they were elected prior to resigning that office to run for another. The functional dynamic of importance here is that changing that deadline would require a constitutional amendment. That's unlikely to be the course of action taken.

Instead, state legislators are looking at shifting the March primary back a few weeks to late March or early April. There are three bills before the state legislature currently dealing with the MOVE act, but none of them contain any provisions to move the date on which the Lone Star state's primary is held.

...yet. To keep track of this, keep an eye on HB 111, HB 3585 and SB 100. The two House bills are sponsored by Rep. Van Taylor (R-66th, Plano) and the Senate bill was brought forth by Sen. Leticia Van de Puette (D-26th, San Antonio). That the bills are sponsored in both chambers by one member from each of the two major parties points to at least some modicum of bipartisanship behind the idea. That said, FHQ should probably be careful not to overstate that in this instance. HB 111 is due for a public hearing later this week and that will be the first indication of what kind of consensus exists behind the primary date change or if it will be added to any of these bills in the form of an amendment in the future.

This move -- to later in March or in April -- would move Texas off the spot on the calendar the two national parties have reserved as the earliest point on which states can hold delegate selection events. If Texas were to move back and California to June, it would fundamentally reshape the delegate calculus in the Republican nomination race. The point at which one candidate could surpass the 50% plus one delegate level would shift back significantly as a result and potentially shift back the point at which the nomination is settled in the process. It would also make Florida a much more attractive early calendar prize. As an aside, if the Texas primary is moved back to April the Republican Party in the state to keep the winner-take-all elements they have maintained in terms of delegate allocation in the post-reform era.

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Needless to say, this jeopardizes Rep. Alonzo's bill (HB 318) to move the Texas primary up to the first Tuesday in February. There had not been any serious movement on that bill any way, but now there is some reason as to why.

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On Gingrich's Presidential Nomination System Comments

FHQ would be remiss if we did not at least make some effort to counter several points that Newt Gingrich raised in praising the current presidential nomination system on On the Record with Greta Van Susteren Thursday night. Gingrich is typically very sharp, but several of his comments suggest a fundamental misreading of the nomination system.

First of all, I agree with Gingrich's assessment that the system is not broken.

"I'm a fan of [the saying] 'if things aren't broke, don't fix em', and I believe the system that we have right now.... I think the system works reasonably well."

Despite all the issues that people have with certain states perpetually going first or with the perceived problems with frontloading (...etc.), the system does work. It still produces nominees for the parties who in turn give said parties a good, if not the best, shot at winning the White House given certain other structural factors (nature of the times, fatigue with the incumbent party, etc.). One may be tempted to argue that the Democrats, for instance, nominated Walter Mondale in 1984 and he was subsequently crushed in a Reagan landslide in November of that year. Democrats must have done something wrong, right? Not really. Aside from Ronald Reagan switching parties, the Democrats had no chance in that election no matter who the candidate was.

The system, then, isn't perfect, but it does the job the parties want it to do (see Cohen et al., 2008). Gingrich and FHQ are on the same page there, but that's where the agreements cease. The remaining points the former Speaker makes are either rooted in myth, outdated/obsolete or just aren't all that factual.

Gingrich on equal opportunity (quotations from GOP12):

".... In the opening weeks, you've been in the Midwest, you've been in the Northeast, and you've been in the South, and now -- with adding Nevada -- you've been in the West in the very first weeks, at an affordable pace for unknown candidates.

For somebody like Governor Pawlenty or Senator Thune, who are just starting out, or Senator Santorum.

If you don't have the scale of money that some candidates have, this is an enormously open and equal opportunity model to allow talent to emerge."

This is where my qualms are largest. To the extent that Pawlenty or Thune or Santorum has a shot at the 2012 Republican presidential nomination, it has less to do with gradually building momentum and fund-raising through wins in Iowa, New Hampshire, South Carolina and Nevada than it does with what's happening right now in the invisible primary. The only reason the line is at all blurred at this point in the process is that there is no clear frontrunner in this particular nomination race. That opens the door ever so slightly to saying that there is more opportunity for longer shot candidates, but not that there is equal opportunity.

And to go on and use the examples of Reagan's nomination in 1980 and Carter's in 1976 to highlight this conclusion is misguided at best. It assumes that virtually nothing has changed in nomination politics in the post-reform era. I can think of several political scientists who have made careers (or part of their careers) out of demonstrating how rules matter and how changes over the last four decades have changed the process in their research.

Do Iowa, New Hampshire, South Carolina and Nevada matter? Yes, but first one should look toward whether the invisible primary produces a frontrunner first. What would determine a frontrunner? Above I mentioned fundraising, but along with that poll position and endorsements are also good indicators of where the nomination race may go (again, see Cohen et al., 2008). The premise there is that the party plays a large role in determining who its nominee will be. Of course, in the case of the 2012 Republican nomination race there is one mitigating circumstance that should also be considered. The party may always have its hand in the decision, but in this case the grassroots/Tea Party movement may wield more power relative to the establishment/party elites than in past Republican nomination contests.

With that said, there's a reason Gingrich is heading off to those early primary/caucus states. Yes the former Speaker knows wins there are important, but he and all the other candidates heading to those areas also know money, poll position and endorsements will matter first.

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The Impact of 2010 State Governmental Elections on Frontloading: Part Two

Yesterday's post on the prevalence of unified government in state governments following the 2010 elections set the stage for a further examination of the influence that will have on the likelihood of proposed bills that may shift the dates on which presidential primaries and caucuses will be held. Now, there are a fair number of factors that come into play in the frontloading decision-making calculus of any state legislature (or ultimately the state government). For the time being, FHQ will focus on a handful of them.

First, presidential incumbency matters. I found as much in my research [pdf]. Over the 1976-2008 period, those cycles without an incumbent president on the ballot were three times less likely to witness widespread primary movement than in those cycles where both parties had contested nominations. 2012 will be one of those cycles with an incumbent president on the ballot.

What that tells us is that there is potentially a partisan element to all of this. As Philip Klinkner (1994) found in his book on out party committee activity, those parties currently out of the White House are more likely to tinker with their rules -- as a means of shuffling the deck and potentially increasing their likelihood of success -- than those that occupy the White House. In other words, in this cycle we would expect to see the Republicans being less content with the status quo and thus more likely to alter their rules in some fashion. While the Republican Party did allow rules changes (or the exploration of that possibility) outside of the national convention for the first -- a process that led to the adoption of rules requiring states to proportionally allocate delegates in the event a contest is held prior to April -- that effort is not really the point for our purposes here. Instead, we are looking at the secondary actors here: the state governments. To what level are the states willing to, within those rules, make changes to their election laws to impact their influence over the nomination process? When it comes to frontloading, that is the important question to ask. All things equal, the expectation would be that Republican-controlled governments would be more likely frontload than Democratic-controlled state governments.

2012 is a weird cycle, though. After having allowed February primaries, both national parties are now seeking to scale things back in 2012 and are mandating March or later primary and caucus dates for non-exempt states. For the first time, then, the parties are attempting to force states to backload as opposed to allowing them to frontload to a certain point in the past.

That leaves those 18 states currently in violation (see map below) of the national parties' delegate selection rules firmly within the crosshairs. Each has to move back to a later, compliant date or they face the delegation-reducing sanctions both parties are employing. [For the time being, I'll shunt my thoughts on the effectiveness of those sanctions to the side.]

[Click to Enlarge]

Those 18 states are either the states most likely to move into compliance or the most likely to thumb their noses at the national party rules in an attempt to influence the nominations. And that brings us full circle. Democratic-controlled state governments (of those 18 states) would tend to fall into the former group while Republican-controlled state governments would be more likely to tempt fate and stick it out despite the looming spectre of sanctions. Two Democratic-controlled states (Arkansas and Illinois) in the last legislative session moved to later dates and a third, California (a newly unified Democratic state government), has a proposal to move its primary back to a later date on the 2012 presidential primary calendar.

[Click to Enlarge]

You can begin to see the possible impact here as highlighted by the map above (especially when combined with the partisan maps from part one). The unified state governments would hypothetically be more likely to see some action if they were under Democratic control than if they were under Republican control (seeking greater influence over the nomination) or in the midst of divided control (unable to move into compliance with either national party's delegate selection rules). In other words, there is not only a line between unified and divided state governments, but between states with unified Democratic control and unified Republican control. States like California are more likely to move back, but are unified Republican states like Florida or Georgia more or less likely to move back than states like New York or Missouri with divided government? That will be something for those of us watching to keep our eye on.

The problem with focusing on the states in violation of the national party rules is that it completely disregards states -- particularly unified states -- that are currently compliant but may move to an earlier date valuing influence over the potential costs to their national delegations. Here's where that Texas bill comes into the picture.

[Click to Enlarge]

There are obviously states with unified control that may opt to move into violation of the national parties as well. But those states are much more likely to be Republican-controlled than otherwise. Pennsylvania, a state long divided between the parties and incidentally enough unable to move out of April during the post-reform period, may be worth watching along with Texas since both are Republican-controlled.

The point to take home is that while there may be some states that stick it out with primary dates in violation of the national party rules, there will also be far less movement forward than in the past. There will be movement backward, but much of that will likely depend on the presence of unified government in the state and which party is in control.


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The Impact of 2010 State Governmental Elections on Frontloading: Part One

On Monday, FHQ posted a chronological list of the start dates for all 50 state legislative sessions. Now, from that calendar several factors, as discussed there, could be gleaned that could impact the evolution of the 2012 presidential primary calendar. However, it was only intended as the opening of an incremental assessment of the state of play in the calendar maneuvering that will take place throughout 2011. State legislatures are very much at the nexus of this decision in a majority of states -- those with primaries. As such the partisan composition of those state legislatures is an important point of departure.

The Republican wave that swept over the 111th Congress grabbed a majority of the headlines as did some of the wins the party saw in gubernatorial races. Yet, those GOP advances stretched down-ballot to state legislatures as well. Nationwide that translated into a gain of more than 675 seats across all state legislatures according to the National Conference of State Legislatures.

Before I get too far into this first step look into the post-2010 partisan composition of state legislatures, or more to the point, whether there is unified or divided government on the state level, I should note that this is but one of many factors that plays a role in determining if a state ultimately opts to shift the date on which its presidential primary is held. In the models I ran in my dissertation research [pdf], I repeatedly found that structural factors had a greater influence a state's propensity to frontload in the 1976-2008 period than what I deemed political factors. In other words, matters such as whether a state held its presidential primary concurrently with its primaries for state and local offices was of greater import than divided government. It should be noted that another political factor, the presence of an incumbent president running for reelection, had a larger impact than either a divided state government (legislature and governor) or a divided legislature. The theory behind all of this is that rationally acting decision makers would utilize a cost/benefit analysis when deciding whether to frontload their primary. Those state-level decision makers with less structural, political, economic and cultural impediments standing in the way of the decision were found to be more likely to have shifted their primary (or caucus) over the period mentioned above.

While inter-chamber partisan division within a legislature would hypothetically serve as a deterrent to frontloading, it was never the statistically significant factor that inter-branch partisan division (between the executive and legislative branches) consistently proved to be.

That said, what impact did the 2010 Republican wave have on the presence of unified or divided government? First, it is instructive to examine the executive and legislative chamber flips in partisan control during the 2010 elections.

[Click to Enlarge]

Understandably, this is a map that trends red, but only shows two instances (Maine and Wisconsin) where the Republican Party gained control of the executive branch and both the upper and lower chambers of the legislature. Overall, the map does not tell us much more than the map the National Conference of State Legislatures provides other than the fact that it adds gubernatorial gains to the equation. But let's add in a map that shows the prevalence of unified government and then create a hybrid of the two that demonstrates not only the presence of Republican-controlled unified government, but the gains made on that front during 2010.

[Click to Enlarge]

Again, this second map shows us the extent to which unified government extended following the 2010 elections. On the surface, the midterms proved to be a boon to Republican fortunes nearly nationwide. It would, theoretically, have an impact not only on frontloading but on redistricting as well. Unified Republican-control on the state level translates into fewer hurdles between a party making congressional seat gains through redistricting or making an advantageous move of a primary ahead of a presidential nomination cycle that will only see a competitive Republican race.

But what was the impact of 2010?

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Well, the state that already had unified government prior to 2010 are shaded in either dark red or blue. The gains in unified control by either party are in the lighter shades. If we were a truly enterprising blog, FHQ would go ahead an layer in the new electoral college map as a means of discerning the states where unified control was established and where redistricting will have to take place. Michigan, Ohio and Pennsylvania are the big ones on that front and sadly for the Democratic Party, California is neither redistricted by its state legislature nor did it gain any seats in the latest reapportionment. Redistricting aside, however, this series of maps does set the stage for an examination of how the partisan shifts in control at the state level will potentially impact the frontloading process during the 2011 state legislative sessions.

With so many states now under unified Republican control and with the Republican nomination being the only contested race, the potential exists for quite a lot of primary movement. But FHQ will delve into that tomorrow with a wider discussion of other factors that could influence state legislative decision making in terms of presidential primary timing.

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Bill Introduced in Texas House to Move 2012 Presidential Primary from March to February

All the talk coming out of the Texas legislature this week has been about the birther bill introduced that would require presidential and vice presidential candidates to share with the Texas secretary of state their birth certificates in order to run. FHQ isn't here to debate that bill so much as point out that it has overshadowed another bill that was filed this week; one that would shift the state's presidential primary from the first Tuesday in March to the first Tuesday in February. State representative, Roberto Alonzo, as he did prior to 2008, introduced a bill to enhance Texas' impact on the presidential nomination process.

Of course, that 2007 bill, pushed by Democrats, got bottled up in committee -- a committee controlled by Republicans -- and Texas stood pat in March. That maintenance of the status quo actually worked well for both parties. Texas was among the states that put McCain over the top in the Republican nomination race and helped Clinton stem the flow of Obama victories after the February 5 Super Tuesday (effectively keeping the contest going).

The 2011 version of the bill (HB 318) is simply a repeat of what happened in 2007. Same Democratic sponsor, same Republican-controlled committee and same goal: Move the primary from March to February. What has changed, however, is that the national parties have a different set of rules regarding the timing of primaries and caucuses in 2012 than they did in 2008. Both parties are in agreement that only Iowa, New Hampshire, Nevada and South Carolina can go prior to March 2012. All other states, according to the rules drafted and accepted by both national parties, are required to hold delegate selection events in March or later.

On at least one level, those rules make this Texas bill moot. If every other state outside of the exempt states is holding their primary or caucus on the first Tuesday in March or later, then Texas is already positioned on the earliest possible date. However, as FHQ has attempted to point out since the parties began drafting their rules for 2012, this is something that isn't necessarily be easy. In any event, it is a decision -- shifting the date on which a state's primary or caucus is scheduled -- that is fraught with problems.

First of all, with all other factors held equal, the national parties have still not developed a successful incentive or penalty regime to prevent states from ignoring the rules and scheduling their contests outside of the required timeframe. Taking away half of a state's delegates (or all of them) did not deter Florida (or Michigan) from breaking the national party rules in 2008. In fact, both states are still scheduled to have February primaries in 2012, given current election laws in both states. The expectation here at FHQ has always been that the states that are currently outside of that timeframe for 2012 would be where the action was in terms of primary/caucus movement. Yet, states currently in compliance with those timing rules can opt to position their primaries on dates that are in violation of those rules as well. Texas is in that group.

The second set of issues concerns partisanship within the primary date-setting bodies on the state level. Typically, it is the party outside of the White House that tinkers the most with its rules (see Klinkner 1994). In other words, Democrats intent on reelecting President Obama are less interested in shifting the dates on which their primaries or caucuses are scheduled than the Republicans who have a competitive nomination race. In Texas in the case of this bill, that notion is turned on its head; particularly if the same thing that happened in 2007 happens again in 2011. The bill is being sponsored by a Democrat, but the state legislature and the governor's mansion are controlled by Republicans. Those Texas Republicans may opt to go along with the national party rules, but they may also be tempted this time around to flaunt those rules and attempt to give Texas an outsized voice in the Republican nomination race by moving forward.

As such, HB 318, is one to keep an eye on as the Texas legislative session progresses next year.

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On Republican "Sticks" and Democratic "Carrots"

I'm going to run the risk of heaping it on George Will, but something he said in his Sunday column begged for a response.

Any Republican delegate-selection event held before the first day of April shall be penalized: The result cannot be, as many Republicans prefer, a winner-take-all allocation of delegates. March events "shall provide for the allocation of delegates on a proportional basis." This means only that someof the delegates must be allocated proportional to the total vote.

Because Democrats are severe democrats, they have no winner-take-all events, so they do not have this stick with which to discipline disobedient states. Instead, they brandish -- they are, after all, liberals -- a carrot: States will be offered bonus delegates for moving their nominating events deeper into the nominating season, and for clustering their contests with those of neighboring states.

First, I question the level of punishment the Republican shift to proportional delegate allocation rules -- no matter how formulated -- will affect states opting to hold presidential delegate selection events before April. By FHQ's count, there are 32 states whose governments -- or state parties in the case of caucus states -- will have to move from their current positions to avoid "punishment". Our guess is that a sizable portion of those 32 states will take their "punishment" and attempt to influence the process. After all, that is the commodity states trade in during the presidential nomination process: influence. Will mentions that the national parties desire "lengthening the nomination process to reduce the likelihood that a cascade of early victories will settle the nomination contests before they have performed their proper testing-and-winnowing function". Well, national parties want that insofar as the process ends like the 2008 process did for the Democratic Party. But that will not always be the case. There has been a fair amount of talk about the Tea Party/Establishment GOP split within the Republican Party. Will proportional allocation only accentuate that division?* Some states may take their punishment in an effort help a non-establishment candidate, if one has emerged to take the mantle, stay in the delegate race for the nomination. [FHQ will have more on this issue of non-establishment goals in a post tomorrow.]

States, in the end, are self interested. They want influence over the identity of the presidential nominee. And that is a goal that is, depending on the angle, at odds with what the national parties want. In other words, the national parties end up with what they don't want: a nominee who is initially unelectable or becomes unelectable because of a divisive nomination decision. I just don't see how the states are penalized by the change to proportional delegate allocation.

One other point on the above excerpt: Will deftly employs some revisionist history in discussing the Democrats' "carrots". He fails to mention that the bonus delegate regime began across the aisle with the Republicans at their 1996 national convention in San Diego. It was there that the GOP put in place a bonus delegate system for the 2000 Republican nomination.

Will also fails to recognize the "sticks" the Democratic Party utilized in 2008 and has carried over to the 2012 cycle. Sure, states under the Democratic rules, as is the case under the Republican rules, lose half their allotment of delegates, but they also call for candidates who campaign in violating states -- those that go too early -- to lose their delegates from that state at the national convention (Rule 20.C.1.b from the 2008 and 2012 Democratic Delegate Selection Rules). In theory at least, that rule would have had more bite in 2012 if the Democrats had not flip-flopped and then flipped again twice on how to deal with Florida and Michigan. That muddled implementation of the rules may end up hurting both parties in 2012, but the Republicans more since theirs will be the only contested nomination. What I mean is that states will be more likely to test the Republican rules because of the Democrats' actions in 2008. The Republican Party still has the half delegation penalty plus the new proportionality requirement as penalties to rule-breaking states. FHQ is still skeptical as to whether that will be an effective rule in curbing state frontloading.

If a short history of presidential primaries is going to be constructed, it would at least be helpful to include a full and accurate account of the most recent events that will more greatly affect the next nomination cycle.

*Of course, that assumes that the Tea Party faction is a lasting one that faces no backlash following the 2010 midterms or before the 2012 nomination race kicks off in earnest.

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A short history of presidential primaries meets reality.

There must have been a lull of sorts reached in this midterm election cycle yesterday because it had Washington Post opinion columnist, George Will, gazing off into the future, but not without a tip of the cap to the past ["A short history of presidential primaries."]. The truth is that FHQ just didn't care too much for Will's history lesson. Well, actually the history part wasn't all that bad. The story of the intent of the Founders in creating the Electoral College is one I always like telling my Intro to American Government classes. However, the esteemed conservative columnist is guilty of not only omitting some important information from the recent past of presidential primaries but also of making a fairly large assumption in regard to the 2012 nomination process.

Let me address the latter first. I will be among the first in line (and was) to commend the parties for their ad hoc coordination of the two sets of rules governing presidential nominations for the 2012 cycle. [The intra-party groups -- the GOP Temporary Delegate Selection Committee and the Democratic Change Commission -- were not ad hoc, but the inter-party efforts were.] FHQ said soon after the 2008 cycle was complete that the parties working together was a necessary, if not sufficient, way of reigning in the frontloading that has "plagued" the process essentially since it was reformed during the 1968 nomination process. But the national parties merely changing their rules for presidential selection is but one piece to this puzzle. There is a whole process that will begin playing out as soon as the midterm elections are over in November. Once the newly elected state legislatures begin sessions in early 2011 by filing -- or not filing -- bills to change the election laws of states across the country, we'll begin to understand whether this will be a harmonious process or not. While the GOP may have their "sticks" and the Democrats their "carrots", eighteen states must still alter their election laws to shift their primaries to later dates and thus back into compliance with the national parties' presidential selection rules.

FHQ will not say that this is impossible.* We will, however, point out that those eighteen states represent eighteen opportunities for shirking. That shirking, in turn, poses a threat to an unraveling of the whole process. And yes, Iowa, New Hampshire, Nevada and South Carolina will sit on the sidelines and wait as other states act -- or don't act. Those "Entitled Four" will bide their time and shift the dates on which their contests occur accordingly; earlier than everyone else.

Will really need look no further than Florida and Michigan in 2008 for examples of this. Actually, it is fundamentally irresponsible for him to have omitted the two violators from the last cycle from his column. The Florida and Michigan examples hold the key to the 2012 process. States will either follow the rules as most have throughout the post-McGovern-Fraser reform era or they will treat Florida and Michigan in 2008 as a sea change; a states' rights sea change. States' rights is a loaded term in American political history, but in this case, it is appropriate if only because the states will have the option to flex their muscles, if they so choose, against the national parties' sanctions. As I have argued, the states have the incentive to balk at the rules simply because the penalties are not strong enough.

I guess we'll start finding out in January when the newly elected state legislatures convene in state capitals across the nation.

*It should be noted that Arkansas as well as Illinois and Montana Republicans have moved their contests for 2012 back already.

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RNC Finalizes Primary Schedule Rules for 2012

Ballot Access News has the highlights and FHQ will have a broad overview either Sunday night or Monday morning.

BAN seems to think that state legislatures will fall in line next year and pass laws complying with both parties' rules since they largely coincide now. Richard Winger used the word "likely" to describe state legislative action. FHQ is and has always been of the opinion that overlapping rules between the parties is a good first step in that direction, but passing election law modifications is far from a certainty. As I have maintained, all it takes is one state to derail the best of intentions. And the parties should be commended for working together. It was a necessary and sensible move.

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Dates for 2012 Contests in Exempt States (via Democrats)

Last Friday FHQ openly doubted that the Democratic Rules and Bylaws Committee would set dates for the four exempt states in the presidential primary process. As I said then, I thought it would be more likely that the committee would set the parameters around which those states could place themselves. Alas, the committee chose specific dates. In my haste to get the notice of the impending meeting out to FHQ readers, I failed to adequately consider even recent historical precedent.

Just four years earlier, the Rules and Bylaws Committee acting on the recommendations of the Levin Commission opted to do the same thing. But back then, January primary dates were still allowed. Here's the timing breakdown from the highlights of the 2008 rules:

The new schedule is as follows:

• Iowa holds the first-in-the-nation caucus on January 14.
• New Hampshire holds the first-in-the-nation primary on January 22.
• Nevada conducts a caucus between Iowa and New Hampshire on Saturday, January 19.
• South Carolina holds a primary 1 week after the New Hampshire primary on Tuesday, January 29

The regular window will open for all other states on the first Tuesday in February -- February 5, 2008.

Now, of course, Florida and Michigan came along and threw a monkeywrench into even the best laid plans. Obviously, New Hampshire balked at Nevada's caucuses being ahead of the primary in the Granite state, but it wasn't until after Florida's move -- or the early progress of the bill to move the Sunshine state's primary in the legislature -- that that January 22 date was truly threatened. [Granted New Hampshire Secretary of State, Bill Gardner, did issue an early 2007 statement that New Hampshire would stick with its date if Iowa stuck with theirs.] What kept the ball rolling on the pre-window movement was the South Carolina Republican Party's response to Florida's potential move. To be sure, SCGOP chair Katon Dawson's threat of an October 2007 GOP primary in the Palmetto state was pure bombast, but it was enough to stir an already unsettled primary calendar hornets nest.

Florida solidified its position on January 29 in late May and South Carolina Republicans jumped the Palmetto state's Democrats (and Florida) to share the January 19 date with both parties' Nevada caucuses in August. And August was busy because that was when the Rules and Bylaws Committee decided to penalize Florida all of its delegates if it followed through with plans to hold the contest outside of the window period. It was also the month in which Michigan began to seriously push its own move into January 2008.

That Wolverine state shift became official in September before South Carolina Democrats requested a waiver from the DNC to move from January 29 to January 26 in October. And that was on the cusp on the Iowa Republican Party's decision to settle on January 3 for the caucuses there. [Iowa Democrats followed suit nearly two weeks later.] All that was left then was for New Hampshire to choose a date. After toying with a December 2007 primary, the Granite state selected January 8 as the date on which its primary would be held just prior to Thanksgiving.

It isn't any earth-shattering news that there was movement -- a lot of movement -- on the 2008 calendar, but some of this pre-window jockeying often gets lost in the shuffle. It all becomes very SamandEric (the twins) from Lord of the Flies. In this case, though, it's FloridandMichigan. The bottom line is that the parties can make all the rules they want, but the states will decide whether they want to go along with them or not.

For the record, here are the dates where the Democrats have proposed the four exempt states (Trust them at your own peril.):

• Iowa: February 6
• New Hampshire: February 14
• Nevada: February 18
• South Carolina: February 28

• Everyone else: March 6 or after

FHQ was 50/50 in guessing the possible dates. In an earlier post, I guessed Iowa and New Hampshire correctly, but missed on Nevada and South Carolina. Of course, it doesn't take a rocket scientist to guess that Iowa and New Hampshire would be placed on the earliest allowed dates that keep both in February and with an eight day cushion between them.

And now we wait.

...for national party approval.

...and the states' reactions throughout next year.

[AUTHOR'S NOTE: It was funny to look back at some of those 2007 posts in putting this one together. That was during the very early days of FHQ and I daresay few people outside of me and perhaps a few others have ever seen them. No one is ever that bored.]

Thoughts following the 2nd Democratic Rules and Bylaws Committee Meeting

Over the weekend the Democratic Rules and Bylaws Committee reconvened in Washington (yes, sans FHQ) to further cement the rules governing the 2012 Democratic presidential nomination. The set of rules coming out of this meeting will go before the full DNC in St. Louis next month for approval. In its initial meeting in May, the committee made quick work of the most of the rules -- only tweaking some of the particulars from the 2008 rules -- but following discussion, tabled most of the more contentious issues that concerned some of the recommendations made by the Democratic Change Commission. Namely, what to do with the superdelegates' influence, how to make more uniform the caucus process across states, and how to curb frontloading. For our part, FHQ will focus on the last of those in this initial post, but will return to the other issues later. [Side note: And yes, I do need to put this all together with the changes the Republicans have proposed as well. FHQ has neglected the much more interesting and consequential Republican rules-making process. Amends will be made, I assure you, dear readers.]

Now, some have called the rules recommendations that came out of the this meeting and the earlier Republican meeting, the "most significant alteration to the primary calendars since '68..." The McGovern-Fraser reforms fundamentally reshaped the way in which presidential nominees were chosen from that point forward. They turned presidential primaries and caucuses from non-binding contests meant to influence party leaders at the national convention into binding contests that determined to some degree the level of support candidates would receive at the convention. The primary calendars after that point evolved, and though the negative effects of frontloading were being discussed as early as the Hunt Commission (the pre-1984 cycle's equivalent of the Democratic Change Commission), it took until 1988 and into the '90s for the full effects of McGovern-Fraser to be felt in terms of the calendar. And, of course, these were unintended consequences of those reforms.

Perhaps you can tell, I don't particularly like the comparison to the 1968 Chicago convention's reform measures. FHQ also has another problem with this comparison.* As I alluded to above, it overstates matters. Both parties have recognized frontloading as a "problem" for several cycles now. And it is no small feat that both the DNC and RNC determined that the best way to combat the problem was to work together, representing a unified front against would-be rule breakers (Florida and Michigan, I'm looking in your direction.). That fact alone is significant in and of itself, but this process is only in its first phase: rules formation. The national parties will have to ratify those changes in order to end this part of the cycle.

The next phase will play out through much of next year. It is one thing to institute new rules, but it is another to have the states go along with those changes. A good first step is to have both parties on the same page, but Florida and Michigan (and all the pre-February 5, 2008 states but Nevada and Iowa on the Republican side) may have set a precedent in 2008. And with so many states having to move the dates on which their primaries are held to comply with the new rules, there is more incentive than ever to shirk.

That was the real message that came out of all of these meetings on both sides. Both parties are together in terms of their calendar set ups, but the sanctions did not change in the least from 2008. Yes, the Democrats bumped up their incentives for states electing to hold later contests, but that has proven ineffective in the past. The true effect of one of those 2008 sanctions likely won't be felt until 2012 anyway. That the Democrats stripped candidates of half their delegates if they campaigned in a state in violation of the timing rules was very crafty. It kept Obama and Edwards among others out of Florida and (they took themselves off the ballot in) Michigan. That has the effect of making a state meaningless or at least far less influential than otherwise. And that penalty is back for the 2012 cycle. States might have thought twice about flaunting the rules if that sanction was in place on the Republican side. Of course, it is a Democratic sanction and I doubt it will matter much if the Democratic Party strips Obama of half his delegates in a state in violation (they won't). With all the action on the Republican side, a promising sanction won't mean a whole lot.

As I said over the weekend on Twitter, it only takes one state to unravel the best of intentions and trigger a calendar somewhere between what the parties want and where things were in 2008. So, while tweaking the timing of contests is unique in the post-reform era, it isn't that fundamental a change in the grand scheme of things and certainly won't be if states don't comply.

*Another issue is that the parties did voluntarily change their rules to allow January and February contests over the last decade and a half. That was at least an equivalent change to what has been proposed for 2012 (proportionality rules excluded).

Democratic Rules and Bylaws Committee Meeting in DC Today and Tomorrow

From First Read:

Setting the 2012 calendar: There’s another meeting to watch today -- this one in D.C. At 1:00 pm ET, DNC’s Rules and Bylaws Committee meets, and it’s expected that they’ll vote on dates for the pre-window states (IA, NH, SC, NV) and reducing the influence of superdelegates.

FHQ doubts very seriously that the R&B selects the dates for the four exempt states. They might set the parameters from which those states will make their choices, but they won't set the dates. Each will wait as late as possible in the process (next year) to finalize those dates -- to ensure that they are as safe as possible at the beginning of the process.

We haven't touched base with Frank Leone at DemRulz, but he is expected to be on-site today and tomorrow. Check in there for updates and here for some ex post facto thoughts on the full meeting on Monday.