The End of the New Hampshire Primary? ...by Death Penalty?

Former New Hampshire Republican Party chairman and current Granite state Republican national committeeman, Steve Duprey, set off a bit of a discussion about the New Hampshire presidential primary over the weekend. It did not get a lot of attention because it was inside baseball stuff.

...and everyone was paying attention to what was happening in Iowa anyway.

But given Mr. Duprey's position on the RNC from New Hampshire, there are some interesting delegate selection rules-related items buried in this that are worth exploring.¹

It all stems from this via John DiStaso (at NH Journal):

Duprey also said there has been discussion about a “death penalty,” although it is not part of the current rules governing the 2016 cycle’s delegate selection process. He wrote in his report to the NHGOP that some RNC members have discussed a rule that would force candidate who campaigned or allowed their names on the ballot of a state that wasn’t following the RNC schedule to forfeit half of all delegates they earn nationally.  

The “death penalty,” said Duprey “is always out there as a possibility. If we find that we have an enforcement problem even under the current rule, it could be considered for 2020.”  

And Duprey wrote to the NHGOP, “Obviously the adoption of such a rule would end our primary.”

Now, obviously that last line is a bit provocative. But let's start from the top.

The RNC added for the 2016 cycle a super penalty -- the so-called Bennett rule -- with the intent of significantly curtailing states other than Iowa, New Hampshire, Nevada and South Carolina from holding primaries of caucuses before the first Tuesday in March. States with delegations of 30 or more would have their delegates reduced to just 12. The reduction would scale a little lower still -- a mere 9 delegates -- for states with delegations of 29 or fewer delegates. This creates a scaleable penalty that hits big states harder than small states while still maintaining a stiff penalty for all. A state like California, for example, would face a more than 90% reduction, but even a state like West Virginia would still be levied a more than 60% penalty. In both cases, the state would have a larger penalty levied on its delegation than the rules that governed the 2012 process would have allowed.

Even with that new, more severe penalty, the RNC considered for upping the ante even more with a death penalty. FHQ would be willing to guess that it did not quite work that way as the RNC finalized its rules for 2016. It is more likely that both options -- super penalty and death penalty -- were discussed, but there was more consensus behind the incremental step that the super penalty represented by comparison (to doing nothing or going nuclear with the death penalty).

Yet, the death penalty idea survived to apparently loom over the 2016 trial run of the new super penalty.² And it -- the death penalty -- very much takes a page out of the Democratic National Committee playbook from eight or nine years ago. Faced with similar problems -- states potentially violating the timing rules with too-early primaries of caucuses -- the Democratic National Committee opted for a 50% penalty (while retaining the ability to increase that penalty) but coupled with a penalty placed on any candidate who campaigned in a rogue state. That combination not only hit the state delegation but choked off the attention any rogue state might like to get out of an early contest (because candidates would stay away from states where campaigning meant losing any and all delegates won in that state).³

The tabled RNC death penalty is a version of that Democratic rule on steroids. The candidate who campaigns in a rogue state or allows their name to remain on the ballot there under the death penalty would lose half of their delegates accrued nationally. Not just half in the rogue state.

That is a significant scare tactic to keep candidates out of states that have violated the rules. And it would certainly give states something to think about. Moving forward to hold a ghost town primary or caucuses may not prove to be all that attractive.

--
How much would this impact New Hampshire and the New Hampshire primary?

Not much. Mr. Duprey probably overstated the impact of a potential death penalty on New Hampshire. Under the current RNC rules, New Hampshire and the other carve-out states have one month ahead of the next earliest contest to schedule their primaries and caucuses. It is a sliding scale. If Florida jumps to January 1 then the carve-out states would have a window from then to December 1 in which to schedule their contests without penalty. Only if New Hampshire held a primary before December 1 in that scenario would the Granite state be subject to the effects of the proposed death penalty.

That's something that Mr. Duprey acknowledged in a follow up on Facebook this past Saturday (again via DiStaso):

Duprey continued, "Also note that if a party adopted a so called ‘death penalty’ rule it would only be the end of our primary if the national party did not accord us the honor of going first. As I added in my report to state committee members, support for the NH primary’s first in the nation status has never been stronger and a death penalty rule could actually add an even stronger protection to our primary if we were kept first on the schedule, which I believe we would be."

Unless some anti-carve-out state sentiment -- well more than the normal sentiment -- develops between now and, say, 2018, then New Hampshire will continue to be afforded the same privileged position it has always had in the presidential nomination process.

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¹ Mr. Duprey also headed up the committee that handed down recommendations for debates regulation during the Republican nomination process.

² I try to point this out as much as I can, but often FHQ does not mix this in often enough. It is an important point though. The presidential nomination rules are always a trial and error process. The national parties do not have an opportunity to stress test them before the primaries and caucuses start. The trial part, then, is often by fire. The only test is a primaries and caucuses cycle. And by the time those start, it can often be too late (depending on if and how the states have spent the year prior to the presidential election year adapting to the national party rules). This super penalty is one such example. Right now, in January 2015, it looks like it is working, but that may be different in a month or in six months.

³ It should be noted that Obama, Clinton and the other 2008 Democratic candidates steered clear of states like Florida and Michigan. They may have been less about the rule than about the fact that the candidates and their proxies on the Rules and Bylaws Committee agreed to the addition of that candidate-specific provision.


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Unclear What Shape Final RNC Super Penalty May Take

With the 2014 RNC Winter Meeting looming toward the end of the month, and some consideration, if not vote, on a new set of rules proposals likely to occur, it appears as if the intricacies have not been fully settled on. There is no doubt in FHQ's mind that whatever rules the RNC subcommittee comes up with in regard to the 2016 Republican presidential nomination debates will grab all or most of the headlines. But there will be other rules or rules changes that come out of the RNC meeting that will warrant some discussion as well.

One of those rules is the new super penalty the RNC passed in Tampa in August 2012. Recall that the Republican National Convention implemented for 2016 a stricter penalty (Rule 17) for states willing to violate the timing rules (Rule 16) by scheduling their delegate selection events earlier than the first Tuesday in March. Instead of stripping a state of half its delegation as was the case in 2012 and before, the RNC would reduce a rogue state delegation to just nine delegates (plus the three party/automatic delegates). The intent is to shrink the potential power of any rogue state down to something smaller than what any of the four carve-out states -- Iowa, New Hampshire, Nevada and South Carolina -- would have to offer in terms of their individual number of delegates. That, in turn, keeps the candidates away and focused on the carve-outs.

…theoretically.

However, as FHQ noted once that super penalty came to light in January 2013, there was a loophole for a select few small states. The more draconian penalty would actually have been severe for big states, but less than the 50% penalty those same states would have been subject to in 2012 and before. The new proposals includes a provision to correct that discrepancy.

But it isn't clear what exactly this fix is.

As was originally reported by Peter Hamby last month, the RNC subcommittee remedy was to penalize rogue states by knocking them down to nine delegates (plus the three party/automatic delegates) or one third of their originally apportioned delegates, whichever is number is smaller. That one third provision was the remedy to the original super penalty intended to target those smaller loophole states.

Yet, in Saturday's New Hampshire Union Leader, Garry Rayno describes a slightly different penalty for those very same smaller states. Instead of being left with one third of their delegates, smaller rogue states with fewer than 30 apportioned delegates (originally, pre-penalty) would be stripped of all but six delegates (presumably plus the three party/automatic delegates). That is not a huge difference, but that is a different penalty than the one Hamby detailed in December.

Let's look a state or two under both plans (Hamby and Rayno descriptions) and the original super penalty. In 2012, there were 17 states and five territories with 30 or fewer delegates. Given that 30 delegate threshold in Rayno's description there are two groups of states to examine. States in the 25-30 delegate range and those with 24 or fewer delegates in their delegations.

• State in the 25-30 delegate range: Wyoming (28 delegates in 2012)

Let's assume that Wyoming opts to hold (what will now have to be binding) precinct caucuses in February 2016. That would run afoul of the new RNC rules.

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates); 12 total. That is a 57% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (9.33 delegates), whichever is smaller. Most of the rounding rules for 2016 indicate that fractions would be rounded down. That would leave Wyoming with 9 delegates (plus the three party/automatic delegates); 12 total. That's a 57% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That's a 68% reduction.

• State with 24 or fewer delegates: Maine (24 delegates in 2012)

Let's assume that Maine opts to hold (what will now have to be binding) precinct caucuses in February 2016. That would run afoul of the new RNC rules. 

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates); 12 total. That is a 50% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (8 delegates), whichever is smaller. That would leave Maine with 8 delegates (plus the three party/automatic delegates); 11 total. That's a 54% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That is a 62% reduction.

• State with 24 or fewer delegates: Delaware (17 delegates in 2012)  -- Smallest state/non-territory delegation

Let's assume that Delaware opts to hold a primary in February 2016. That would run afoul of the new RNC rules.

Original super penalty reduction: 9 delegates (plus the three party/automatic delegates) [NOTE: less than 50% reduction]; 12 total. That is just a 29% reduction.

Hamby super penalty reduction: 9 delegates or one third of original delegation (5.67 delegates), whichever is smaller. Most of the rounding rules for 2016 indicate that fractions would be rounded down. That would leave Delaware with 5 delegates (plus the three party/automatic delegates); 8 total. That is a 53% reduction.

Rayno super penalty reduction: 6 delegates (presumably plus the three party/automatic delegates); 9 total. That is a 47% reduction. 

In all cases, the penalty decreases as the size of a state's delegation decreases. But the proposal Hamby described sees a very slight decrease as a delegation gets smaller as compared to the original conception of the super penalty or the version Rayno reported.  Understandably, the corrections are more severe than the original, but the Rayno version reduces a delegation more than the one Hamby described in December. For all states (not including those territories with just 9 delegates) with fewer than 30 delegates, the Hamby-described penalty is roughly 55% of the delegation (with a range of 53-57%). On the other hand the Rayno version is more severe on the "bigger" small delegation states. The reductions on states with fewer than 30 delegates range anywhere from 47-68%. 

Now, these are very subtle differences. A handful of delegates here and there makes a difference in terms of what the weight of the ultimate penalty is on an individual state. None of these states were chosen at random either. All three have at various points in the post-reform era tested the resolve of the national parties by moving in on the turf of the carve-out states (generally New Hampshire). The RNC, then, would have some incentive to close any loophole that might entice any or all of those states to jump up the calendar into, say, February.

But how to do that is the question. Pick your poison. 

The main remaining question is whether this will be enough of a deterrent to prevent states, small and big alike, from encroaching on the turf of the carve-out states. That is a question that will have to wait until 2015 for an answer. In the meantime, the RNC will have to settle on what its small state super penalty will be. 

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