Showing posts with label penalties. Show all posts
Showing posts with label penalties. Show all posts

Friday, January 19, 2024

How many delegates do New Hampshire Democrats have anyway?

Leading the day at FHQ...

By now the story is old hat. At least around these parts it is. The Democratic National Committee altered its presidential primary calendar rules for the 2024 cycle. New Hampshire Democrats did not take kindly to the change that saw South Carolina's primary nudged into the first slot and spent 2023 openly defying the national party rules changes. 

Now, under the delegate selection rules of the Democratic Party, such a move on the part of New Hampshire Democrats carries a penalty, a 50 percent reduction in the size of the base delegation. That reduction has taken place, and New Hampshire Democrats now have 10 delegates to the national convention in Chicago later this summer. But the reporting, if one reads it closely, still seems to toggle between saying that New Hampshire Democrats will lose/have lost half of their delegates and that Granite state Democrats will lose/have lost all of their delegates.

So which is it? Half or all?

Actually, it is both. The actions of the New Hampshire Democratic Party -- opting into the noncompliant state-run presidential primary on January 23 -- cost the party half of its delegates. That is done. However, due to a tweak in the national party delegate selection rules for the 2024 cycle, state parties cannot allocate any delegates to any candidate who campaigns in a state like New Hampshire which has a primary scheduled in violation of the guidelines. Dean Phillips and Marianne Williamson cannot even win any actual delegates by being on the ballot in the upcoming primary in the Granite state (even if they manage to qualify). 

So, New Hampshire Democrats have 10 delegates but cannot allocate them. Half and all, all rolled into one. 

The question is, what happens with those 10 delegates? Obviously the back and forth continues between the New Hampshire Democratic Party and the national party to resolve their impasse. But in the meantime, here are some thoughts at FHQ Plus on where things may go as primary season progresses

In the continuing state-by-state series on delegate allocation rules, FHQ examines changes for 2024 in...
  • Utah: Republicans in the Beehive state have once again shifted to caucuses for selecting and allocating delegates. Otherwise, the same eccentricities remain under the surface in the allocation process.
  • Vermont: FHQ often says that there are only so many ways to proportionally allocate three congressional district delegates under RNC rules. Well, that is true in terms of the 17 delegates Vermont Republicans have to offer as well. Nevertheless, Republicans in the Green Mountain state have built some unique features into their delegate selection plan.


Tuesday, June 20, 2023

Are Iowa and New Hampshire likely to face RNC penalties?

Invisible Primary: Visible -- Thoughts on the invisible primary and links to the goings on of the moment as 2024 approaches...

First, over at FHQ Plus...
  • South Carolina Republicans made a move over the weekend that is pretty atypical for early states. The party in a way disarmed and retreated on the calendar. Yes, the primary in the Palmetto state is still among the earliest, but it is unusual for one state to yield an earlier position to another. More on that at FHQ Plus.
If you haven't checked out FHQ Plus yet, then what are you waiting for? Subscribe below for free and consider a paid subscription to support FHQ's work and unlock the full site.

In Invisible Primary: Visible today...
As an aside in the discussion of the South Carolina Republican primary being set at FHQ Plus, I closed by taking a big picture view of the likely early primary calendar on the Republican side:

Would the Republican National Committee prefer that primary season kick off in February as intended? Yes, but given that the Democratic rules pushed the Michigan primary into late February and nudged South Carolina on the Democratic side up to the beginning of the month, the start point creeping two weeks into January is not that bad on the whole. 

The four early Republican carve-out states — Iowa, New Hampshire, Nevada and South Carolina — have, under RNC rules, a window of a month in front of the next earliest contest in which to schedule their own primaries and caucuses. If the Iowa Republican caucuses do, in fact, end up on Monday, January 15, then those contests will have fit within a 43 day window before the Michigan primary, (maybe) the next earliest contest. And given the complications the Democratic calendar changes introduced for Republicans, again, it is not that bad. And it hardly counts as “chaos.”

That scenario -- that Iowa's Republican caucuses and the New Hampshire presidential primary would be outside of that one month granted by RNC rules to the early states -- brought a question into my inbox. Basically, does that set Republicans in Iowa and New Hampshire up for the super penalty? After all, both would seemingly be too early by the RNC definition that far into January.

FHQ would contend that the answer is no.

There was a time -- back in 2008 -- that both New Hampshire and South Carolina were docked half of their delegates for violating the timing rules.1 But the language in the relevant rule, Rule 16(c)(1) now, was different then when it was Rule 15(b)(1)(i). Instead of a month before the next earliest contest, both New Hampshire and South Carolina were treated just like any other state for 2008, and could not conduct their primaries before the first Tuesday in February

However, there was no out for them in the rule. The 2008 Republican National Convention added a carve out for the pair of early primary states (for future cycles) but without specific reference to the actions of other, would-be rogue states, the non-carve-outs. Yet, that was after the fact. When Florida and Michigan crashed into January for 2008, it had the effect of pushing both New Hampshire and South Carolina up. Michigan triggered the first-in-the-nation law in New Hampshire, and Florida's move violated the first-in-the-South position that Republicans in the Palmetto state had carved out for themselves in the calendar over time. Republicans in all four states plus Wyoming ended up taking a 50 percent hit to their national convention delegations. 

As for the states' treatment under the current rule? 

FHQ would argue that they are fine. Yes, the excerpt above from over at Plus noted that Michigan is the next earliest contest, but there is an argument that can be made about the South Carolina Democratic primary being the next earliest state. It was the Democratic National Committee moving the South Carolina primary to the first position for 2024 that ultimately will push New Hampshire and Iowa into January. But the rule is silent on whether it is events on just the Republican primary or the overall calendar of contests for both parties that might serve as the backend of that window of time in which the early states can schedule contests. 

And it will be much easier politically to blame Democrats for contests that are too early than state-level Republicans. Yet, none of this is not official. And until Iowa and New Hampshire are in place on the calendar on the Republican side and the national party has responded, it is an open question. But it is pretty easy to chart out where that would likely go. 

In the travel primary...
The other day, FHQ referred to Nevada as "the redheaded stepchild of the early primary calendar." That has meant a number of things over the years since the Silver state was added to the early window of the presidential nomination process. Poorly implemented caucuses. Talk of replacement in the early calendar lineup. But by far the most consistent aspect of this phenomenon is how Nevada measures up to its early state peers. The Nevada Independent tells a familiar tale: Nevada in 2023 lags far behind Iowa, New Hampshire and South Carolina in candidate visits so far in the cycle. 

From around the invisible primary...

1 Iowa and Nevada were both exempt without mention in the rule because neither selected nor allocated national convention delegates at their precinct caucuses.


Wednesday, December 28, 2022

"It will be a state-sponsored public opinion poll"

Anthony Brooks of WBUR had a nice report on Here and Now about the showdown over the New Hampshire presidential primary between Granite state Democrats and the Democratic National Committee. 

Regular readers of FHQ will note that it covers familiar ground, but Brooks also did well to get DNC Rules and Bylaws Committee (DNCRBC) Co-chair Jim Roosevelt on record for the piece. And Roosevelt's comments were illuminating:

On New Hampshire generally...
"New Hampshire has done this [held the first-in-the-nation primary] and done this well for a century or more, but they have always abided by the party rules. This is the first time they are not doing that."

On the effects of punishments for DNC rule breaking... 
"It [the New Hampshire presidential primary] will be a state-sponsored public opinion poll."

Neither of those statements is all that surprising. The notion of the DNCRBC going beyond the 50 percent penalty on states that violate the rules on the timing of primaries and caucuses came up at the panel's meeting in early December. It is not even a revelation that this is the first time in the post-reform era that New Hampshire will have broken the DNC timing rules. FHQ has covered that ground.

However, what is surprising -- or perhaps, noteworthy -- is that Brooks even reached out to Roosevelt for comment or that Roosevelt went on the record. It is not exactly common for rules committee members, much less chairs, to either comment or be a part of these stories. It is not that chairs cannot or should not do so, but rather, that they usually do not. Roosevelt's comments represent a small counter to the very vocal defiance from the Granite state to this point following the DNCRBC adoption of the president's calendar proposal. But it does say something about how the DNCRBC is signaling it will deal with states that run afoul of the party rules. ...even New Hampshire.

There is one other thing from the Brooks interview that merits mentioning. The edit of the final story transitions from Brooks describing the penalties New Hampshire Democrats may face -- mainly focused on not seating delegates at the national convention -- to Roosevelt's comment about the state-sponsored public opinion poll. Unfortunately, it is not clear at this point whether those two things necessarily track one another. 

In personal conversations, Roosevelt has always made plain to me the fact that the delegate penalties on candidates or states apply during primary season; meaning a violating state's/candidate's delegates are not included in the various delegate counts that are tallied as the race moves from one state to another. It is a perceptual (if not real) penalty. [The count is very real to the perception of how the race is going and how it typically ends.]

The convention and the seating of delegates are different matters. A convention -- or its Credentials Committee -- makes the decisions on whether to seat delegates, and those decisions are made after primary season (and typically after the nomination race) has concluded. Alternatively, a presumptive nominee can urge the full seating of a sanctioned state's delegation as Barack Obama did with Florida and Michigan in 2008 (reversing a May 2008 decision by the DNCRBC to seat all of the two states' delegates but only count each delegate's vote as half).

So, it is not clear from this Here and Now story that Roosevelt is threatening to hypothetically not seat the New Hampshire delegation at the 2024 Democratic National Convention (should the state ultimately not be in compliance). It is clear that the DNCRBC has only so much power and it exists mainly before and during primary season. But a national convention is the ultimate arbiter in either national party. And a convention has different goals from what the party is attempting to accomplish during a nomination race. It can go against a previous decision by one of the party's standing committees. 

But, that Roosevelt is speaking out now suggests that such an eventuality will not come without a fight. And that is really the take home message from all of this. New Hampshire Democrats are telegraphing that they intend to break what are likely to be the DNC calendar rules (when adopted in February). And Roosevelt is signaling that New Hampshire will not be protected in 2024. It will be treated as any other state that breaks the timing rules. 


Monday, December 19, 2022

What Happens if States Don't Go Along with the National Party? [Annotated]

Meg Kinnard has a super helpful explainer up at the Associated Press about how parties and states set their presidential primary and caucus dates. There is good stuff in there. We need pieces like these. But the section added on the penalties applied to violating states by the national parties highlights the fact that some things just get lost in the oral and written histories of presidential nominations over time. 

A few things about that penalties section...

First, the DNC does have a penalties regime in place for rogue states. If a state jumps into the pre-window period on the calendar, then that state loses half of its delegates.1 But the DNC Rules and Bylaws Committee (DNCRBC) also has the discretion to increase that penalty. This is what was witnessed in Florida and Michigan in 2008. Both states would have been stripped of half of their delegates under the rules. But the DNCRBC, getting little to no help from either state party in Florida or Michigan or state Democratic legislators (some of whom had voted for the primary date changes that put both states in violation of the rules) opted to make an example of both in late 2007. Using that discretion, the DNCRBC stripped both states of all of their delegates. 

And yes, near the end of primary season in 2008, the DNCRBC did restore all of those delegates to both Florida and Michigan in a Memorial Day weekend compromise that held that all delegates from the two states to be seated but only retain half a vote at the convention. But that was not the end of the story. At the beginning of August 2008, Sen. Barack Obama (D-IL), the presumptive Democratic nominee, requested that the states' full voting rights be restored at the Denver convention later in the month. It was a request Obama's main opponent, Sen. Hillary Clinton (D-NY) echoed and the Credentials Committee at the convention honored.2 

It is this very tension that state Democratic parties in both Iowa and New Hampshire are now banking on for 2024. That is, the national parties are typically torn in this situation. On the one hand, upholding the rules -- or relenting -- has implications for future cycles (and state behavior in them). But on the other, at that time in the cycle -- the convention -- those same national parties and the nominees they are set to formally nominate are transitioning toward a general election fight where unity is key; unity that would be disrupted if one or more state delegations are not seated at the convention. The timing just is not right for national parties to truly and effectively crack down (unless maybe the state is a lost cause or a sure thing). 

Kinnard then moves on to 2012...

After the chaos of 2008, both national parties saw the need to right the ship for 2012. Despite the fact that both the DNC and RNC shifted back by a month the point on the calendar when non-carve-out states -- those other than Iowa, New Hampshire, Nevada and South Carolina -- could hold contests, Florida and Michigan jumped the queue into the pre-window once again. They were joined by a handful of non-binding Republican caucuses. 

The Republican rules covered the noncompliant Florida primary at the end of January and the similarly noncompliant Michigan primary at the end February. Both lost half of their delegates. The few non-binding caucuses skirted the Republican sanctions because no delegates were allocated directly based on the results of the first stage caucuses. But the penalties that were levied were upheld at the Republican National Convention in Tampa. 

Nothing was done on the Democratic side with Florida or Michigan in 2012 because the state Democratic parties in each shifted to caucuses during that cycle to avoid sanction from primaries moved by Republican-controlled state governments and because President Obama was seeking renomination without any serious opposition.

It is worth noting that Florida and Michigan Democrats in the state parties and state legislatures made good faith efforts to comply with the rules in 2012 in contrast with 2008. It is those sorts of efforts under Rule 21 that often help in avoiding sanction from the DNCRBC. 

Things then shift to penalties on candidates...

The description here would be, I suppose, closer to what the Republican National Committee does to candidates; ding them on speaking slots. But none of that is officially part of the RNC rules. And, in fact, it would be less an RNC move than a presumptive nominee's at that point. It is their convention after all, and the nominees-to-be tend to orchestrate things with assists from the national party. In that light, a move to bump a former opposition candidate to a poor speaking slot for campaigning in a rogue state months before would be more petty than anything.

But while the RNC does not have official candidate penalties, the DNC does. It has since the same 2008 cycle rules changes that also added Nevada and South Carolina to the pre-window lineup of states. But those penalties were never meted out because it was discretionary. The rules changes for the 2024 cycle alter that calculus. No longer may the party strip a candidate who has campaigned in a rogue state of all of their delegates won in that state; they shall do that. And beyond the strengthening of the rules there, the DNC has also made the definition of the what constitutes campaigning more inclusive. Campaigning now includes filing to be on a ballot in a rogue state or not working to remove one's name from a rogue state ballot (where filing is not required and ballot access is more automatic). The new rules have also granted the DNC chair the authority to take matters a step further should candidates not not abide by these rules. The chair can prohibit candidates in violation of the campaigning rules from presidential primary debates sanctioned by the national party. 

Those are deterrents with some teeth that have implications for the candidates before and during primary season, not just at the end of it. The idea is to keep candidates out of rogue states in order to neuter the violating contests in those states. Under those circumstances, states theoretically would not want to hold rogue contests because the lure -- candidates and attention -- would no longer exist (or would at the very least be greatly minimized). 

Is the DNC committed to penalizing Iowa and New Hampshire if either goes rogue? 

Ultimately that will be a question better posed in the summer of 2024 as the conventions approach. But the DNC is serious about the candidate penalties (see rules changes for 2024) and fully stripping states of their delegates -- beyond the baseline 50 percent sanction -- is also on still on the table. Such a prospect was raised in the conversations about the calendar rules at the DNCRBC meeting that adopted the new calendar proposal

Rules matter. So do rules changes. 

1 Republicans had the same 50 percent penalty for states in violation of the RNC timing rules in both 2008 and 2012. However, the party strengthened its penalty for going rouge for the 2016 cycle; something the national party has had in place ever since. The super penalty strips a bigger state of all but nine of its delegates and smaller states of all but six delegates.

2 Honestly, this should not count against Kinnard. I had trouble enough tracking down information to even confirm my recollection of events. FHQ has some oblique references to the moves here and also here. Wikipedia has a footnote which leads to a piece on the DNC Credentials Committee vote, but sometimes one just has to go straight to the roll call vote on the nomination which shows a full Florida delegations of 211 and likewise a 157 delegate Michigan group.


Tuesday, December 13, 2022

Iowa and New Hampshire Are No Strangers to Threats: The case of 1984 and what it may mean for 2024

For those who closely follow presidential nominations, there are handful of things that everyone knows about them. Among them are that Iowa and New Hampshire always go first, both states jealously guard those respective positions, and, for some time in the Democratic Party process, both have become decreasing demographically aligned with the party's overall primary electorate. That last one is a new(-ish) element and is part of what has Iowa on the outside looking in, and New Hampshire likely to follow it, in the new calendar outline proposed by President Biden and recently adopted by the DNC Rules and Bylaws Committee (DNCRBC).

But guarding first-in-the-nation status is a reality that constantly keeps Iowa and New Hampshire under threat whether by ever-changing national party rules or by other states encroaching on their turf (or both!) in a given cycle. The 2024 cycle, then, is not the first time that those in Iowa and New Hampshire have had to stare down a long and difficult journey back to the top before voting starts. Some, in the wake of the newly rolled-out Democratic calendar outline, have been quick to raise 2008 as a case when the traditional first pair overcame the odds and ended up back at the front of the queue. Yes, in 2007 state governments -- legislators and governors -- in both Florida and Michigan pushed primaries in each state into January. Legislators in Florida first slotted the primary there into a January 29 position, and later in the year, the Michigan primary was scheduled for January 15. 

Those moves had the effect of disrupting the DNC plans to hold an expanded early window of four contests (instead of just two), none of which could be held before their respective dates below:
Monday, January 14: Iowa caucuses
Saturday, January 19: Nevada caucuses
Tuesday, January 22: New Hampshire primary
Tuesday, January 29: South Carolina Democratic primary

But the Florida and Michigan primary shifts had the effect of nudging Iowa and New Hampshire closer to the beginning of the year while Nevada held the line on January 19. South Carolina Democrats, to stay ahead of Florida as the first contest in the South, bumped their contest up to Saturday, January 26. But again, all four states were protected. Unlike Democrats in Florida and Michigan, those in Iowa, New Hampshire, Nevada and South Carolina had spots codified in DNC rules that each attempted to protect once the interloping states had crossed into the pre-window period (which at that point, meant contests earlier the first Tuesday in February).

And that is a good example of a threat to Iowa and New Hampshire. But it is not exactly the best historical example of a cycle that found the typical leadoff states pitted against the Democratic National Committee and its rules for delegate selection. To find such an example one has to go all the way back to the 1984 cycle, one that partially laid the predicate for some of the actions taken in 2008. 

The 1984 environment
Rules changes
After the Democratic Party fundamentally reshaped the way in which candidates were nominated for president after 1968, the party spent the 1970s tinkering with the rules by which those candidates were nominated. The 1984 cycle, the fourth since reform, was no different. This was the cycle after all that added superdelegates to the equation. 

But there were also changes to the rules regarding the timing of delegate selection events. The rule for 1972 and 1976 was that all primaries and caucuses were to be held within the calendar year of the presidential election. For 1980, the party added the so-called "window" rule. All contests were to occur in a thirteen week period between the second Tuesday in March and the second Tuesday in June. Exceptions were made then for any states that held contests in 1976 before that earliest point in the window. That not only exempted Iowa and New Hampshire in 1980, but a host of other caucus states

Coming off a loss in the 1980 general election, however, the DNC altered the parameters of that rule for 1984 even further. It specified for the first time the states that could hold contests prior to the second Tuesday in March, granting the New Hampshire primary a slot seven days before the opening of the window and the Iowa caucuses one 15 days before it. Furthermore, Charles Manatt, the DNC chair, signaled that the party would crack down on window violations in the 1984 cycle, warning that refusal to seat delegates from violating states was on the table. 

New Hampshire conflict
Of course, a problem arose. [They nearly always do.]

Granted, the rule change was mostly effective in ridding the early window of would-be rogue contests in 1984. Importantly, it cleared the Massachusetts primary and Minnesota caucuses from the pre-window. But a quirky legacy system in Vermont remained and proved problematic. Town meetings have always been scheduled for the first Tuesday in March. They still are. During that era, however, Vermont Democrats added a non-binding presidential preference vote to the proceedings as well. It was a straw poll that had no bearing on delegate allocation in the state. Allocation did not occur until the state convention in April. 

New Hampshire maneuvered around the straw poll in both 1976 and 1980, going one week earlier each time. But in each of those cycles, the secretary of state, acted not only in accordance with the 1975 law granting his office the ability to set the date of the primary (and keep it first), but consistent with the DNC rules for those cycles as well. 

Yet, the DNC rules were different for 1984. The beauty contest "primary" in Vermont was scheduled for the week before the second Tuesday in March opening to the Democrats' recognized window. And New Hampshire Secretary of State William Gardner viewed Vermont's presence on the date set aside for the New Hampshire primary by the DNC as a problem for him with respect to implementing the date-setting provision of the presidential primary law in the Granite state. 

This was already inflaming tensions between Democrats in the neighboring northeastern states and at the national party as early as January 1983, more than a year the voting began. Vermont's state chair said at the time, "If there is a problem, it is New Hampshire's."

But it was a problem for Democrats in more than just New Hampshire. Gardner's signal that the New Hampshire primary would fall on February 28 -- out of compliance with the DNC timing rules -- roiled Democrats in Iowa. If Vermont pushed the New Hampshire contest up a week from their DNC-designated position, then that primary would be held just a day after the slot set aside by the DNC for the Iowa caucuses. Legislators in the Hawkeye state responded in kind in the spring of 1983, changing state law and creating a New Hampshire-like buffer for the caucuses. Under state laws after that point, the New Hampshire primary would be scheduled by the secretary of state there for a week before any other similar event and Iowa's caucuses would end up eight days earlier than any other similar contest

All of this occurred before June 1983 when the DNC's Compliance Committee, the precursor to Rules and Bylaws, met to consider delegate selection plans from the state Democratic parties for the 1984 cycle. With the backing of DNC Chair Manatt -- who again, was adamant that the rules would be enforced in 1984 -- rejected all state plans that broke with the timetable for contests, including both Iowa's and New Hampshire's.

And those threats from the national party meant enough at that time that Iowa Democrats had second thoughts as the impasse with the national party stretched deep into the fall of 1983, barely three months out from the commencement of voting. A compromise emerged from a November 1983 state central committee meeting that set December 10 as a deadline for the Iowa Democratic Party's state central committee. If New Hampshire had not shifted its primary into compliance with DNC rules by that point, then the caucuses in Iowa would proceed on February 20 (instead of the rules-based February 27 date). The rationale was that if the DNC eventually let New Hampshire slide, then Iowa would be in the clear as well. 

The courts get involved
December 10 came and went with no changes from New Hampshire, and that seemed to lock both states into the non-compliant dates for 1984. But the fear that Iowa's delegation would not be seated at the national convention had extended from some quarters of the Iowa Democratic Party (IDP) to the campaigns themselves. Charles Gifford, a member of the IDP state central committee and two state co-chairs of former Vice President Walter Mondale's campaign brought suit against the state party to prevent it from conducting a non-compliant contest on February 20 and reinstate the February 27 date.

However, the state party along with the campaigns of John Glenn and Alan Cranston argued that changing back to the February 27 date would create "irreparable harm" for the candidates because of the investments of both time and money each campaign had made in Iowa. 

Not only was this a political conflict between representatives of three campaigns for candidates involved in the 1984 Democratic nomination race, but it indirectly raised a conflict between the state law in Iowa and the national party rules. The decision in the case conceded that the Iowa Mondale representatives were "entitled to relief" but that that was "outweighed by the irreparable harm that changing the rules of the presidential nominating process [in Iowa] at this late date may have."1

It was the timing that mattered. That the date impasse lasted nearly into 1984 and additionally that the campaigns had already invested based on a particular calendar were factors that ended up carrying the day in court. And it is that sort of timing issue that tends to catch up with national parties in this process. Enforcement of the rules -- if they rise to a delegation not being seated at a convention -- come at a point at the end of primary season when the party is shifting toward unifying with general election victory in mind. That is why the DNC conceded in May 1984, agreeing to seat both states' delegations at the convention.

That was the precedent set in 1984, and what actors in both Iowa and New Hampshire banked on in 2008. Once again for 2008, the DNC had carved out particular positions for not only Iowa and New Hampshire, but also Nevada and South Carolina. And technically, Iowa, New Hampshire and South Carolina all broke the rules for 2008. But each did so to protect the order the DNC had laid out for the nomination to progress; an order disrupted, in part, by Democrats in Florida and Michigan. Each avoided sanction. And in the end, on the eve of the Denver convention, the Florida and Michigan delegations were reinstated in full as well.

What 1984 may mean for 2024
Clearly there are some similarities. Just like in the 1984 cycle, Iowa and New Hampshire perceive some threat in the proposed calendar changes to their privileged status as lead off states in the presidential nomination process in 2024. And timing matters too. Past actions have indicated to decision makers in both states that the national party is likely to fold in the interest of general election unity in the end anyway.

But 2024 is different. 

The proposed rules are different. Iowa is no longer protected at all. And New Hampshire has more specifically been assigned to a position that conflicts with its state law. Or rather other states have been protected -- and placed ahead of or alongside the New Hampshire primary -- in the proposed DNC rules with no regard for that state law (or with a probably futile eye toward attempting to change it). This is not a situation like Vermont in 1983. This is the national party codifying a different order, and in the process creating a different starting point for this exercise than has existed in any other cycle in the post-reform era. 

There is a certain latitude that Iowa and New Hampshire have always operated under prior to this cycle. And the rationale is simple enough. It came out in the late 1983 discussions in Iowa and was a part of the lore of both 1984 and 2008. Essentially, it comes down to "if the national party protected us as the first contests, then it will not matter if we make moves to insure the order they wanted."

Look, Iowa and New Hampshire will be first in 2024. the Republican process. Iowa Republicans will schedule early (likely January) caucuses and the New Hampshire secretary of state has already promised to do likewise to protect the status of the presidential primary in the Granite state.

The question is whether the state Democratic parties break and seek alternate means of allocating delegates under the pressure of the national party penalties and candidate deterrents designed to keep candidates away and off the ballot. This, of course, will be greatly affected by whether President Biden opts to throw his hat back into the ring and seek renomination. 

Should the president run largely unopposed, then Iowa and New Hampshire Democrats are stuck; stuck between state law and national party rules. However, in Iowa that same state law that creates an eight day buffer between the caucuses and any other contest still empowers the state central committees of the parties to schedule those contests. And in both 2008 and 2012, Iowa Democrats selected dates that were fewer than eight days before the New Hampshire primary without any penalty. There is no penalty for breaking the state law. That is true in the Granite state as well. There is no penalty for breaking state law there either. But in contrast, the New Hampshire secretary of state controls the selection of the primary date and not the state party, leaving the party to find some alternative should it opt out of the primary.

Early reviews for 2024, however, from both Iowa and New Hampshire Democrats has been mostly negative and the tone struck, defiant in the face of the proposed rules changes. 

But the lesson of 1984 may not be in what has come to be an on-again-off-again struggle between the earliest states and the national party. Instead, the lesson may be in potential legal remedies if those with standing move quickly. Remember, the challenge to the earlier 1984 caucus date in Iowa played out between campaign proxies of one candidate on one side and a state party with opposing candidates as intervenors on the other. 

If Iowa and New Hampshire Democrats remain defiant into 2023 and if Biden opts to run -- relevant IFs -- then Biden proxies in Iowa and/or New Hampshire (if there are any left) could bring suit against the state parties, arguing that supporters of the president from those states run the risk of being shut out of the national convention. In other words, because of the non-compliant contests, both states gamble that their delegations will either be reduced or not seated.

Admittedly, that is quite a few steps down the line. And if Iowa and New Hampshire are serious about protecting their first-in-the-nation status -- which they are -- then neither will have official contest dates until far later in the year.  That appears to once again push this exchange between the national party (or national candidates) and those on the state level to a point that is once again close to when voting begins; a point in the timeline in 2023 when other candidates may have entered the race and already invested heavily in those two states. 

But there may not be other candidates. There may not be other candidates who are willing to expend resources in a couple of states that stray from the DNC rules. 

Even before that, however, there are processes in place. Democrats from both Iowa and New Hampshire will have to submit delegate selection plans to the DNCRBC by early May 2023. That process will document either the state parties' continued defiance or that they will stand down and follow the rules. Continued defiance -- a documented non-compliant date in a proposed delegate selection plan -- would mean that Democrats from both states would find themselves with a rejected plan likely in June. 

With the state parties on record and a plan rejected, interested Democrats in the two states -- whether for the president or not -- may move legally to compel the state parties to hold compliant contests for fear of being disenfranchised in the process without one.

They could.

But again, that is long way down the road. The DNCRBC wants to break the will of Iowa and New Hampshire Democrats. Actually, the panel and the party just want states to follow the rules. But they are unlikely to get that. Instead, they will have to lean on penalties designed to compel state cooperation. That may not work either. But if the president runs for reelection as expected and runs unopposed or largely unopposed for the nomination, then that may not mean the temperature gets turned down on this as it otherwise would in an uncompetitive environment. It may mean that the party ratchets up the tension with the state parties to set a new precedent for 2028 and beyond. 

The first step of that is in place. And unlike 1984, Iowa and New Hampshire do not have the same protections in DNC rules for 2024.

1 Information in The 1984 environment section leans on work in Hugh Winebrenner's essay, "Defending Iowa's First-in-the-Nation Status -- The 1984 Precinct Caucuses" from the Annals of Iowa (1986).


Thursday, August 28, 2014

Revisiting the 2016 Republican Delegate Selection Rules

There are a few points that FHQ left undiscussed -- or perhaps unclear -- when the RNC finalized their delegate selection rules on timing and allocation back at their winter meeting this past January. That was mostly by design, waiting for the clock to run out on when the party could actually make any further changes. We're still not there yet, but there are no meetings of the RNC scheduled between now and September 30 -- the deadline beyond which changes can no longer be made (see Rule 12).

With the rules governing the 2016 presidential nominations now in place at the national party level, FHQ can focus a bit more on the changes made to the rules relative to 2012. Since the DNC did little to alter their delegate selection rules from 2012, most of this will be directed at the Republican side.

The biggest thing here is to highlight the fact that the RNC had one set of rules coming out of the Tampa convention in 2012 and has altered them in the time since. Importantly, that meant changes to the combination of rules and penalties associated with the timing of delegate selection events and the method of allocating those delegates. The rules that emerged from the Tampa convention sought to remedy the problem with the 2012 rules: there were two possible violations (timing and allocation), but only one penalty. That meant that there was only one 50% reduction in a state delegation for rogue states like Florida and Arizona which not only went to early but also maintained winner-take-all allocation methods despite holding contests in the party-designated proportionality window. The RNC had one penalty, but no contingency in place for the possibility of a state violating both the timing and allocation rules. And the party did not have the ability to double penalize the states; assessing the 50% penalty twice.

The Tampa rules dealt with that, but inconsistently and ineffectively. The party added a super penalty to dissuade states from violating the timing rule and shifted the 50% penalty to allocation violations. The problem with the former was that the rule forbidding early contests (Rule 16) did not match the penalty for violating that rule (Rule 17). Rule 16 forbade contests other than Iowa, New Hampshire, Nevada and South Carolina from holding primaries or caucuses before March 1. However, Rule 17 levied a penalty against states that would hold contests prior to the last Tuesday in February. In 2016, that difference in the calendar was a week. There was, therefore, a week in which states could hold contests and not be sanctioned by the party.

That was a problem. And one the RNC recognized.

That was the state of affairs heading into 2014. The RNC had a set of flawed delegate selection rules that it had to tweak in some way to more efficiently/effectively/ideally deter timing or allocation rules violations. The party maintained the super penalty and strengthened it to address one of the remaining issues on the timing front.1 The party also synchronized the rules and penalties for timing, squaring the March 1/last Tuesday in February loophole. The rule was a bit too specifically narrow in its first iteration. It and the penalties were tailored to hit the usual rogue suspects: Arizona, Florida and Michigan.

The thinking was that there would be a tiered penalty regime. And that most states would attempt to avoid the super penalty but that states like the offending trio above could go early -- but not too early -- and incur just the 50% delegate hit they had thumbed their noses at in 2008 and/or 2012. That loophole week between the last Tuesday in February and March 1 was designed as a landing place for rogue states. Those states would avoid the super penalty there, but because they would likely maintain winner-take-all methods of allocation, those states would incur the 50% penalty associated with an allocation violation.2

This plan proved to perhaps be too clever by half. In the process of amending the timing rules and penalties, the RNC also tweaked and simplified the allocation rules and penalties at their winter meeting last January. The changes were twofold. First, the proportionality window was squeezed into a smaller period. Instead of states with contests before April 1 having to have some element of their delegate allocation plan be proportional, that only applies to states with contests before March 15. Secondly, the applicability of the penalty was changed. The RNC tightening up the super penalty meant that the 50% penalty was no long necessary as a backstop against states willing to go too early and maintain a true winner-take-all method of allocation.

All that means is that the RNC laid out two distinct penalties; one for a timing violation and one deterring winner-take-all contests prior to March 15. Closing the last Tuesday in February/March 1 loophole cleaned that up. That left a super penalty for states willing and able to go rogue and a 50% penalty for pre-March 15 states that fail to include a proportional element to their allocation plans. Additionally, under the altered plan, states that do not comply with the proportionality requirement would have their delegates allocated to candidates proportionally automatically by the RNC at the convention. States with no proportional element to their allocation plans (and with contests before March 15) would have their at-large (statewide) delegates proportionally allocated to all candidates who received at least 10% of the vote in the primary or caucus.3 This automatic proportionalization would be in addition to the 50% penalty. Together, both penalties would seemingly and more effectively deter states from utilizing a true winner-take-all plan before March 15. No, the 50% penalty has proven less than effective as a one-off penalty over the 2008 and 2012 cycles. However, there is little to gain by stubbornly sticking to a winner-take-all allocation method if the RNC is just going to add an element of proportionality at the convention anyway.

The bottom line is that the RNC has synced it rules and penalties and has from all appearances closed any remaining loopholes in the party's delegate selection rules. States that violate the timing rule are assessed the super penalty and states that break the allocation rules are assessed a 50% penalty and automatically proportionalized by the RNC.4 The DNC rules are different. The Democrats require proportionality of all states regardless of when they hold their delegate selection events and levy a 50% delegate deduction on any state that holds a contest before the first Tuesday in March (March 1 in 2016). The trump card they can play if that 50% penalty proves an ineffective deterrent is that the DNC Rules and Bylaws Committee can increase the penalty at their discretion.

1 The original super penalty treated states both differently and the same. The bigger the state, the larger the hit to the delegation. However, all states got knocked down to 12 total delegates. That meant that if a state was small enough -- or had a small enough delegation -- that the penalty ended up being less than the 50% penalty that has traditionally existed. The point of the super penalty was to be, well, super. The fix the RNC devised was to set a threshold at 30 total delegates. States with 30 or more delegates would be penalized down to 12 total delegates for a timing violation while those states with fewer than 30 delegates would have just nine left over after the penalty was assessed.

2 To reiterate, both Arizona and Florida were double violators in 2012, breaking both the timing and allocation rules. There were some issues with the Michigan allocation method that would potentially brought it under the winner-take-all regime. The RNC, then, hoped these states would be deterred by the super penalty, but not by a 50% penalty. Again, those states would have been incentivized to go early, but not too early. It would not be early enough to fundamentally disrupt the calendar.

3 One of the lessons of 2012 Republican delegate allocation rules that never seemed to sink in very well was what the true definition of "proportional" was and what that meant for allocation. Note that FHQ keeps using variations of the phrase "and element of the allocation plan has to be proportional". That is by design. States like New Hampshire can still maintain a strictly proportional allocation under the 2016 RNC rules, but that is not mandated. All states are required to do by the rules -- the bare minimum proportionality -- is to allocate their cache of at-large (statewide) delegates proportionally. That is a number of delegates that varies by state based on how loyally Republican a state has been in past votes for president, governor and overall state legislature control. The redder a state is, then, the more at-large delegates it receives. Ohio for instance is similar in (population) size but bigger than Georgia, yet the Peach state had more delegates in 2012 than did Republicans in the Buckeye state.

4 No, proportionalized is not a word. I'm making it up. Get in on the ground floor now and start using it.

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