Gardner's Bluffing but It Has Nothing to Do with the MOVE Act

What is it with Friday and shallow hypotheses?

FHQ will not begrudge Hotline's Reid Wilson for pushing the conflict between the ever-earlier scheduling of presidential primaries and caucuses -- particularly New Hampshire and a December primary in this case -- and the mandates called for in the federal MOVE act. Here's Wilson:

That law, the Military and Overseas Voter Empowerment Act, significantly expanded a 1986 law known as the Uniformed and Overseas Citizens Absentee Voting Act. The MOVE Act requires state elections officials to send absentee ballots to qualified voters at least 45 days before an election; the goal is to ensure military personnel serving overseas and on Navy ships receive ballots with enough time to vote. 

So if Gardner prints ballots on October 31, he wouldn't be able to hold an election for at least 45 days, which is December 14. 

Hypothetically, if Gardner had an amazingly fast printer and a staff dedicated to getting every absentee ballot stamped and out the door in the hours between the end of the filing period and midnight, he could start the 45-day clock on October 28; the clock would then expire on December 12, so Gardner could hold the primary on December 13. But realistically, that's not going to happen.

That is an interesting argument, but as was the case with the early states fudging their rules/laws to schedule their primaries or caucuses, this one is guilty of not providing the proper context. Fine, let's say a voter does sue Gardner over a December primary MOVE/UOCAVA violation. How do those challenges work? What happened with past challenges to the new restrictions in the law?

As FHQ pointed out to a commenter who brought up this very same point the other day, this is an issue New Hampshire can most likely work around given the precedents set during the trial run waiver process the MOVE act triggered in 2010. Look particularly closely at the Hawaii and Wisconsin examples. Both Hawaii and Wisconsin held MOVE non-compliant primaries in September 2010. Both violated the 45 day buffer mandated by the law. And both struck different deals with the Department of Justice to ensure voters' rights were protected. In Hawaii that meant express mailing the ballots out to overseas voters. In Wisconsin the remedy was allow more time on the backend of the process to receive and count votes from those overseas. If that is all that is standing in the way of New Hampshire and a December primary, then the state can work around that.

FHQ is of the opinion that Gardner is bluffing too, but he is bluffing with little worry of the MOVE act.  As the one overseeing elections in the Granite state, the secretary is aware of the conflict and its implications.

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On Defining "Similar Contest" and Candidate Boycott Pledges

New Hampshire Secretary of State Bill Gardner yesterday reactivated the standoff between the Granite state and Nevada Republicans over the scheduling of their delegate selection events. And has once again set off a firestorm. The clearest signal that the statement yesterday sent was that Secretary Gardner has no intention of fighting with Iowa over the earliest January date available -- January 3. That shifted the battlefront back further out west to Nevada and the Republican Party caucus there.

Not surprisingly, Nevada Republicans were non-plussed about the development. The party has already set a date for its caucuses, January 14, and had opted to leave New Hampshire to their own devices. Passing on a fight with Iowa, New Hampshire again set its sights on the Nevada contest. The reaction was typical. Nevada Governor Brian Sandoval fell into the same trap that many do when attempting to dissect the New Hampshire law that guides the setting of the presidential primary date in the state: the part about the similar election. Here's the law again:

"Presidential Primary Election. The presidential primary election shall be held on the second Tuesday in March or on a date selected by the secretary of state which is 7 days or more immediately preceding the date on which any other state shall hold a similar election, or holds a caucus or in the interpretation of the secretary of state holds any contest at which delegates are chosen for the national conventions, whichever is earlier, of each year when a president of the United States is to be elected or the year previous. Said primary shall be held in connection with the regular March town meeting or election or, if held on any other day, at a special election called by the secretary of state for that purpose. Any caucus of a state first held before 1975 shall not be affected by this provision."

Governor Sandoval and now an apparently-nervous New Hampshire Republican Party chair -- Wayne MacDonald -- are telling Secretary Gardner to re-read the election law citing the "similar election" clause. Here's MacDonald:

“I would like him [Gardner] to reconsider whether Nevada is a similar election,” Wayne MacDonald told the Granite Status. “January 10 makes an awful lot of sense for our primary. It keeps us seven days after Iowa and puts us ahead of Nevada. I think it just fits in well and we're going to be the first primary, which is critically important.”

...

“A primary election is an election, a caucus is a caucus,” MacDonald said. “With all due respect to Bill Gardner, I really think there is a difference. 

“One is run by the party and one is run by the state,” he said. “There's a difference between a primary and a caucus.”

That is all well and good; that a caucus is not a primary, but that is not the distinction the admittedly ambiguous law is making. Stated differently, that is not the interpretation Secretary Gardner is using. His metric is not primary or caucus, it is attention or no/little attention. If a contest in conflict with New Hampshire is going to garner attention -- attention that could draw from New Hampshire's impact if held to soon after the primary in the Granite state -- then it is a similar contest. If a primary or caucus garners no or little attention, the contest is deemed not similar. There is a reason Gardner was not threatened by the caucuses on January 5 -- in between Iowa and New Hampshire -- in Wyoming in 2008. Sure, Mitt Romney and Fred Thompson visited, but not often and not often enough that the national press was willing to follow. Gardner's verdict? Not similar.

But Nevada's Republican caucuses are similar to New Hampshire. The Republican caucuses in the Silver state are an RNC-sanctioned contest. Candidates have already invested there -- perhaps not to the level of Iowa or New Hampshire or Florida, but they are invested to some degree. There is a debate there next week. The governor has already made an endorsement. Nevada matters in a way that Wyoming did not. It is or has been deemed a similar contest. Nevada too closely on the heels of the New Hampshire primary lessens the impact of the primary's results. New Hampshire would not resonate in the way that the seven day buffer in the law is intended to protect.

This is a dead issue, folks. He is the judge and jury on "similar election" and he has already ruled. Gardner ain't budgin'.

--
And here is why:

The candidates are either independently, or based on some other motivating factor, pledging not campaign in Nevada if the Republican Party there does not change the January 14 caucus date to allow New Hampshire to schedule a primary in 2012. First it was Jon Huntsman and now Rick Santorum, Michele Bachmann and Newt Gingrich have joined in. We have not seen a pledge drive like this since the 1996 cycle when all of the major Republican candidates but Steve Forbes either pledged or did not campaign in Delaware when the First state's primary was -- like Nevada -- the Saturday after New Hampshire (or in this case the Saturday after a date New Hampshire is eyeing).

As FHQ explained last week, back in the olden days -- you know, in the 1990s and before -- any time states would schedule primaries or caucuses that conflicted with New Hampshire law, there would inevitably be a pledge -- unofficial or otherwise -- on the part of the candidates to stay out of the offending state. The message: New Hampshire is a known quantity. Winning there matters, or has proven to matter. The Delawares and Nevadas of the world are trying to do what only New Hampshire can, but they can't. That is the New Hampshire perspective. I know. I know. People will argue with me until they are blue in the face that other states could do as good or better than New Hampshire at leading off the process. I'm not here to debate that. It is a reality. And the candidate behavior backs that up. Their actions -- and no it isn't yet every one of the candidates this time -- endorses the notion of New Hampshire holding a special place in the process.

Incidentally, this sort of behavior underlines the type and potential effectiveness of the penalty the DNC tried out in 2008 -- the one I alluded to in my piece over at Crystal Ball today.

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What Bill Gardner's Statement Really Means

The instant reaction to New Hampshire Secretary of State Bill Gardner's press release -- Why New Hampshire's Primary Tradition is Important -- today has been about what he said.¹ More telling from FHQ's perspective is what he didn't say. The state he cited was Nevada; that for New Hampshire to be able to fit into the 2012 calendar year would require the Nevada Republican Party to reset the date of the party's caucuses for Tuesday, January 17 at the earliest. That would allow New Hampshire to hold a January 10 primary, and all would presumably be right with the world.

But Gardner only mentioned Iowa in passing, saying that with "Iowa officials tentatively decid[ing] that their caucuses would be on that date [January 3]," New Hampshire would be left with no other recourse than to hold a primary in December. To FHQ that signals a couple of things:

First, it possibly demonstrates that the game of chicken with the Iowa GOP is either not going at all or is not going at all well for New Hampshire at the moment. With Nevada Republicans set for January 14 caucuses, that should have settled the score between Nevada and New Hampshire. As FHQ has mentioned, that shifted the process to a battle over the last spot in January between Iowa and New Hampshire. The only outcome that keeps both states in 2012 and is consistent with New Hampshire state law -- that does not also include a Nevada move -- is for New Hampshire to take the January 3 slot and for Iowa to hold caucuses a week later. Either that has been a nonstarter for the Iowa Republican Party or Secretary Gardner has yielded to custom: Iowa first, New Hampshire second. If it is the former, Iowa has essentially called Gardner's bluff on going in December. That the secretary has shifted back to discussing the position of Nevada's Republican caucuses indicates that he does not want to trigger the nuclear option. Again, in the short term, that may keep New Hampshire as the first primary, but in the long term, a December contest blows up the current system or at least puts the privileged positions of the early states on trial.

That is at least part of the calculus in New Hampshire right now. But it could be that Gardner wants to keep the current line up and is lobbying Iowa and perhaps South Carolina to gang up on Nevada to maintain the status quo in the future. Let's call this an olive branch to Iowa. Gardner is basically ceding January 3 to Iowa, but knows that Democrats and Republicans in the Hawkeye state want to preserve their position. A December primary won't hurt just hurt New Hampshire; it will hurt all the early states. By giving Iowa January 3, but continuing to threaten to hold a December primary, Secretary Gardner is upping the pressure on Iowa (and South Carolina) to come to the fore and twist some arms in Nevada.

That's a clever little twist to all of this.

In sum, Gardner is signaling today that he doesn't really want to pull the trigger on a December option, but has given Iowa January 3 while keeping December on the table as a means of increasing the collective early state pressure on Nevada. No, as some have pointed out, the RNC has no real ability to arbitrate this, but three on one early state vigilante justice might serve the same purpose.

--
¹ Here is the text of the press release from the New Hampshire secretary of state's office:
Why New Hampshire is First 10.12.11

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On Compression and Presidential Primary Calendars

Perhaps this is just FHQ, but these continued references to a compressed 2012 presidential primary calendar are curious. There are these competing narratives out there. One concerns the compression of the calendar while the other discusses how the early start will make this the longest primary season ever.  The confusion boils down to a lack of the proper context, and Alex Altman at Time's Swampland blog is the latest to fall into the trap.

First of all, it is difficult to objectively look at the likely 2012 presidential primary calendar and make the argument that it is compressed. That is even more true when the evolution of the calendar is considered. Recall that the plan was for Iowa, New Hampshire, Nevada and South Carolina to hold February contests while the remaining states could choose dates on or after the first Tuesday in March (through the second Tuesday in June). If Florida, as was talked about early on, had carved out a spot between South Carolina and Super Tuesday, then perhaps we could talk about a compressed calendar. But even then, that description is a stretch. That is an even tougher sell when you consider that the same basic alignment and spacing is being preserved among the first four states and Florida; they are just a month earlier now. Couple that with the fact that most of the states scheduled to hold February contests entering 2011 opted to move back and move back to dates other than the earliest date allowed by the two national parties -- the first Tuesday in March.

How can the calendar be compressed if there is no noticeable clustering among the early contests? Now, if Iowa and New Hampshire end up going within days of each other then perhaps those two contests could be described as compressed. The overall calendar, however, is not.

There are two items that are being talked about simultaneously and both need to be extricated from each other to some extent. There is invisible primary campaigning and there is the calendar. The calendar is as extended as it has ever been, and with contests even more evenly dispersed through March, April, May and June, it is the least compressed it has been since the early 1980s. There is no compression to the calendar.

Where there is compression -- and it is due to the elongation of the calendar -- is in the amount of time between now and the first contest. That is the end of the invisible primary; as it fades and yields to actual voting. The time the candidates have to campaign, raise money, garner endorsements and organize prior to Iowa and/or New Hampshire has been compressed greatly because of the decision in Florida and the subsequent jockeying among the first four states. And no, it should not come as any surprise that that time crunch more negatively affects the candidates whom either haven't done this before and/or who are not the current frontrunner for the Republican nomination. Any time taken away from candidates attempting to get to the same level as Mitt Romney gives the former Massachusetts governor an increased advantage. Mayer and Busch (2004) have shown that.

To his credit, Altman does get around to the notion of an accelerated schedule, but not before having seemingly lumped the overall primary calendar into the equation first. There is a distinction to be made between the invisible primary and the primary calendar itself, semantics-based though it may be, but FHQ will not be so naive as to suggest that the two are completely separate. The compression of the close of the invisible primary makes it harder for non-frontrunners to make the case in the early states which affects the results there which has an effect on later states, etc. [And that chain reaction begets the "Romney is inevitable" meme that folks are starting to prematurely make.]

There is an overall sequence to this that includes the presidential primary calendar and that overall sequence has been compressed as those contests loom. But the presidential primary calendar itself is not compressed. The primary calendar portion of that overall sequence is anything but.

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Housekeeping: Hawaii Democrats to Caucus on March 7

[Click to Enlarge]

The Hawaii Democratic Party has amended their 2012 delegate selection plan based on the comments the party received as part of the public comment period for the initial draft. Originally, the plan called for precinct caucuses to take place on Saturday, April 7, 2012, but that date, as was pointed out in some of the comments, conflicts with Passover and Easter weekend, thus preventing a number of party members from attending.

According to documents posted by the Democratic Party of Hawaii, the precinct caucuses were moved up to Wednesday, March 7, 2012 to avoid that problem. The DPH State Central Committee voted on the change -- after submission of the plan to the DNC Rules and Bylaws Committee -- during its meeting in early June.

The party confirmed to FHQ by phone on Tuesday afternoon that the Wednesday caucuses are accurate. It is rare for caucuses to be held on days other than Tuesday or over the weekend.

Find FHQ's updated 2012 presidential primary calendar here.

Hat tip to Tony Roza at The Green Papers for bringing this to our attention.

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In Utah, One More Step to a June 26 Presidential Primary

Back in June, the Utah Republican Party decided to scrap ideas to revert to a caucus/convention system to select national convention delegates in the presidential nomination process. Instead, the party opted to focus on a primary. Since the Beehive state's presidential primary -- the Western States Presidential Primary election -- did not receive any appropriations in the FY2012 Utah budget, that left the state Republican Party no recourse but to hold the primary concurrent with state and local primaries in June.

The only problem is that there was/is no legal way of doing that  -- adding the presidential line to the ballot -- given current state election law. The Utah state legislature, in the midst of a special session, has done its part to remedy that situation, adding language to the law that would automatically trigger the later primary as an option should funds not be allocated to the first Tuesday in February presidential primary election. The section on the state funding requirement had been there prior to this, but not the trigger provision. Here is the new subsection added to the law (Section 20A.9.802, section 1.a.ii):

A political party may participate in a regular primary election for the office of President of the United States only if there is no Western States Presidential Primary election in that year.

The bill (SB 3004) has passed both the Senate and the House with just one dissenting vote across chambers and now awaits Governor Gary Herbert's (R) consideration. The state Republican Party has already obviously signaled its desire to use the June primary as a means of allocating its national convention delegates, and this bill was a necessary part of that plan, though in the end, a bit of a formality with a Republican-controlled state government.

FHQ will add a link to the legislation to our left sidebar Presidential Primary Bills Before State Legislatures section.

Hat tip to Evan Millett for passing this information on to FHQ.

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An Opening Offer: Iowa Republican Caucuses Tentatively Scheduled for January 3

Fine. FHQ will play along with the Iowa caucuses on January 3 storyline. But really, I'll just lean on what I tweeted earlier:

IA caucuses tentatively scheduled for any date is code for "we're using this as leverage to create a better outcome for the early states."

First of all, the Iowa Republican caucuses may end up on January 3, but that will likely have very little to do with the discussion among the decision-makers within the state party over the last couple of days. This is, as it was with Arizona, an opening offer. It is a possibility. It is a threat. But we won't know until October 16 at the earliest whether it is a reality.

As I said last night, it is in the best interest of both Iowa and New Hampshire in the long term to find some way -- any way -- to avoid pushing the start of primary season into 2011 in the short term. If the barrier that is December (or earlier) primaries is crossed at any time by any state that sends the signal -- a signal like no other in the past -- that the current system of nominating presidential candidates is in some way broken. At the very least that puts the positions Iowa, New Hampshire and now South Carolina and Nevada enjoy on trial. They don't want that. Florida and the other 45 states may want that, but Iowa, New Hampshire, Nevada and South Carolina do not.

With that said, where does that leave this process?

The New Hampshire-Nevada game of chicken is now the Iowa-New Hampshire game of chicken. Iowa has made its offer: January 3. Bill Gardner and New Hampshire have made theirs: December 6. Iowa Republicans are saying, "We are willing to take the last Tuesday spot to make sure that the Iowa Republican caucuses happen in 2012." Bill Gardner and New Hampshire are countering with, "That's fine. We are willing to blow all of this up to protect our state law and the candidate/media attention that law nurtures."

Both Iowa and New Hampshire potentially want that January 3 slot. But this boils down to a battle of the wills or a battle of the systems of moving primaries and/or caucuses. Iowa Republicans have the freedom that any state party has. They can move their contest around without checks. New Hampshire has that, too  because the state handed that power over to one person -- the secretary of state -- in 1975. What New Hampshire also has is state law that requires seven days between it and the next contest. Now, we can argue about the latitude granted Secretary Gardner in that law -- that "similar contest" portion provides some leeway, albeit limited -- but the simple truth of the matter is that Gardner has already deemed the Nevada caucuses on January 14 to be "similar". He's not likely to change that opinion.

Regardless, Gardner holds the trump card. He is seemingly willing to take New Hampshire into December if need be to protect the law. Whether that's true or not, we may never know, but he is seemingly willing to play it. And Iowa Republicans are not willing to slip into December.

I'm slightly more inclined to say advantage New Hampshire, but Iowa Republicans could ultimately prove to be a lot like the Nevada Republicans were earlier this week. Frustrated by Gardner's insistence on following the law, the Nevada Republican Party ultimately shrugged its shoulders and said, "Screw it. We'll set a date. To hell with New Hampshire. Let them do what they will." That didn't call Gardner's bluff. That responsibility now rests with the Iowa Republican Party.

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On Ignoring Laws to Schedule Primaries and Caucuses

Aaron Blake and Chris Cillizza attempt to bust the myth of the impact the rules/laws in Iowa and New Hampshire actually have on their ability to schedule their primaries or caucuses. Their bottom line is, hey, both Iowa and New Hampshire can and have in the past fudged the rules, so breaking the barrier into December is not likely as a result.

FHQ disagrees.

Past actions give the appearance that Iowa and New Hampshire can bend their own rules/laws, but that is not the case. Blake and Cillizza provide some seemingly good examples of past rules breaking, but it is a shallow dig and fails to capture the context of those cycles. Let's have a look and then I'll explain the true measure of the situation in Iowa and New Hampshire.

Blake and Cillizza write:

Second, the main reason people think things may begin in December is because New Hampshire state law requires its primary to be held seven days before any similar contest, and Iowa law requires its caucuses to be held eight days before the next contest. New Hampshire Secretary of State Bill Gardner has cited this law and said New Hampshire must be at least a week before Nevada.

Well, both of these laws have been ignored before, so who’s to say they won’t again?

In 2008, Iowa held its caucuses just five days before New Hampshire. And in 1996, 2000 and 2004, New Hampshire held its primary less than seven days before another state. Gardner, the longtime secretary of state who has sole control over setting the state’s primary date, was also in charge during those three elections.

(In 1996, even after the state strengthened its first-in-the-nation law in response to a power move by Delaware, Gardner ultimately concluded that Delaware’s primary didn’t constitute a similar election.)

In other words, laws are laws. But there’s often a way to skirt them, and they have often been skirted.

FHQ will take the New Hampshire examples first. In 2004, New Hampshire did have a contest follow less than a week after the primary in the Granite state. But it was the North Carolina Republican caucuses. Not only was that a contest that was held in a party that was re-nominating an incumbent -- George W. Bush -- but not all of the caucuses were held that day. The precinct level events could take place across the Tarheel state throughout the months of February and March. In 2000, a non-binding Delaware Democratic primary -- a beauty contest -- fell on the Saturday after the New Hampshire primary. Additionally, Hawaii Republican caucuses were held the Monday after New Hampshire -- within the seven day window specified in New Hampshire law.

The tie that binds all three of these contests -- and the reason why New Hampshire shrugged their shoulders at the scheduling of them -- is that each was largely inconsequential. The Republican nomination was not contested in 2004, Delaware was non-binding in 2000 and George W. Bush and the other candidates were not going to trek out to Hawaii in 2000 either. In other words, none of these contests was a threat to the attention the New Hampshire law is designed to protect.

Well, you left out one, FHQ. Yes, I did. Delaware in 1996 is another special case, but it differs from the rest. The 1996 Delaware primary -- as was the case four years later -- was scheduled on the Saturday after New Hampshire, wherever New Hampshire ended up on the calendar. [It was tethered to the Granite state in the way that Nevada's Republican caucus is to New Hampshire this year.] I could argue about this being the one exception to the rule and leave it at that, but the truth is, Delaware was not an exception to the rule. Why? Delaware was rendered largely meaningless in the 1996 Republican nomination race because New Hampshire Republicans had the candidates -- or offered to them the opportunity to -- sign a pledge that they would not campaign in Delaware or any other state that violated New Hampshire's law. Among the principles, Bob Dole and Pat Buchanan pledged to uphold the seven day buffer. Lamar Alexander did not, but stayed away from the First state. Steve Forbes did not. Forbes campaigned in and won Delaware. But the press was busy talking about Buchanan's narrow, surprise victory over frontrunner Dole in New Hampshire.

Again, the issue is attention. New Hampshire had assurances of or felt safe in the fact that they would garner the most attention in each of those years. That is why those contests were deemed not "similar". By its nature the term "similar contest" is ambiguous and gives the New Hampshire secretary of state some latitude in the scheduling of the primary.

Why, then, is Nevada considered a similar contest to New Hampshire? The Nevada Republican Party has changed its rules since the 2008 and the precinct caucuses are binding now when they were not in 2008. In addition to that, the Nevada contest is sanctioned by the parties. By being included in the pre-window period, Nevada is being given an attention-grabbing spot. Bill Gardner cannot, then, get the same assurances on Nevada as he and New Hampshire got in the past and because of the party-sanctioned position cannot ask the candidates to choose New Hampshire over Nevada.

Well, what about Iowa? Both Iowa Democrats and Iowa Republicans violated the state law calling for the parties' caucuses to be eight days prior to any other contests. The catch here is that the mechanism is different in Iowa than it is in New Hampshire. I don't want to get too far down in the weeds on this one, but basically the New Hampshire primary is a state-funded contest that the parties there opt into. [They would be foolish not to. Why not save the money?] The Iowa caucuses like any other caucus is not state-funded. The parties pick up the tab and by virtue are not really bound by that state law -- not in the way that parties in New Hampshire are anyway. The Iowa parties can schedule their caucuses for any date they choose and can and do furthermore lean up against that state law when it comes to defending the first-in-the-nation status, but it carries far less legal weight than the New Hampshire law. Now, the parties could opt out of the primary in New Hampshire if it broke with national party rules, but again, they are not going to do that because of the financial considerations. These nomination contests -- whether primary or caucus -- are party business. State law only affects that function insofar as the state parties agree or disagree with the state laws. If they agree with the laws everything is fine. If they disagree the parties typically win out -- at least according to the courts they do. Those disputes rarely come up over primary dates, though. In the event there is a conflict, state parties usually opt out and hold caucuses. [More often than not we see court challenges pitting parties against state law over who can participate in the contests -- opened versus closed primaries.]

FHQ agrees with Blake and Cillizza that we may not see December primaries and/or caucuses, but it won't be because New Hampshire or Iowa -- but mostly New Hampshire -- can fudge the rules. The ads expenses and more importantly, as FHQ has warned, the future implications for first-in-the-nation status are clearer explanations against the notion of December contests. Iowa obviously cares about that. Bill Gardner does not -- at least not to the same level. His main interest is in abiding by the law of the state of New Hampshire.

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"I'm not sure at this point that I do know where everybody else is."

That's New Hampshire Secretary of State Bill Gardner on the overall presidential primary calendar date-setting landscape, post-Nevada (via CNN).

But from where are the threats supposedly coming? Those "everybody else(s)"?

Institutionally speaking, most state legislatures are no longer in session, and if they are, they are either in periodic sessions associated with a year-round schedule or in special session with very specific items on the agenda. There are not, then, many primary states with the ability to move. North Carolina could. Missouri could. Massachusetts could. But logistically North Carolina is unable to threaten New Hampshire. Missouri cannot move it presidential primary forward either. Even if legislators in the Show Me state could agree on anything across Republican-controlled chambers these days, Governor Jay Nixon (D) would veto the bill, keeping a meaningless, non-binding primary on February 7. In neighboring Massachusetts, legislation to move the Bay state presidential primary back to June has been stuck in committee since May. The willingness and/or ability is lacking in all of these states.

How about caucus states?

All of the Republican caucus states are locked in. Yes, state parties -- particularly the Republican Parties -- could technically change the date in any one of those states, but it isn't likely. Planning is underway in each for caucuses next year, and while those sorts of changes have happened in the past, they are rare.¹

So where is the conflict? Where is the threat to New Hampshire?

Iowa.

Above, FHQ noted that all the Republican caucus states are locked in to dates. All the caucus states but one, that is. Iowa has yet to set a date and now may be competing with New Hampshire to see which gets the last remaining spot in January; the last spot that would keep either one out of December. That is a new element to all of this. With limited space -- space enough for one, but perhaps not two states' contests given the conflict New Hampshire state law represents -- Iowa and New Hampshire are potentially playing a game of hot potato to see who doesn't end up in December. No one wants to be the one state to push the start point of presidential primary season in 2011. But Bill Gardner cannot follow New Hampshire law and stay in January if Iowa nabs the last spot in January -- presumably January 3.

That would force the Granite state to December 27 or December 20 or December 13. It is that last option that FHQ penciled in for New Hampshire way back in May when it became possible for Florida to move up to as early as January 3. Now it is Iowa that may take that date or some other one during that first week in January. [January 5 is often mentioned.]

Again, Secretary Gardner is bound by state law. He has no ability to set the New Hampshire primary for January 10. Nevada Republican caucuses just four days later violates that law. And if Iowa selects a date during the first week in January, that gives Gardner no recourse but to go before Iowa -- in December. There would be no other option in January that would both keep New Hampshire as the first in the nation primary and give it the seven day buffer after the contest mandated by law.

What options are left to Iowa and New Hampshire?

1. New Hampshire on January 10 and Iowa on January 3 or 5 is not on the table. New Hampshire cannot do that. 
2. Iowa on January 5 and New Hampshire on December 13 is a distinct possibility. It keeps Iowa out of December. The blame would not be on the Hawkeye state for slipping into December 2011. That would all rest with New Hampshire; a victim of its own law. [How's that for a strange twist of fate?] Conversely, New Hampshire could take the January 3 date and force Iowa into December.
3. But if Iowa is willing to let New Hampshire go first in December, would it not -- and I'm speaking hypothetically here Iowans -- make sense for Iowa to go on January 10 and cede New Hampshire the January 3 date? That entails Iowa doing New Hampshire a solid -- one of epic and selfless proportion rarely seen in presidential primary calendar politics. [More on this in a moment.]
4. The final option is the Thelma and Louise doomsday scenario described last night. That's the "if we're going down, let's go down together" option.

Now this turns into something akin to a prisoner's dilemma. Option 1 is not workable. Option 2 protects New Hampshire in the short term, but likely hurts it -- and the other early states -- in the long run. The status of being first and the whole system in fact would be on trial before 2016. Option 4 yields much the same results.

That leaves Option 3. Iowa takes one for the team, allows New Hampshire to eclipse it for this cycle, and all the early states can then blame Florida and/or the RNC's lack of meaningful penalties for pushing the four early states up as far as they did.²

If you are rooting for reform of the primary system, then one of the December options is probably your best bet. If, however, you would like nothing more than to see some order to the process and no contests in December, well, you probably want to call up the Iowa GOP and ask them to consider January 10.

That is the only option that keeps this out of December at this point.

[NOTE: There is also the New Hampshire on a day other than Tuesday option, but Gardner has shot that down -- at least the Saturday, January 7 option.³]

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¹ Nevada Republicans' second caucuses scheduling in 2007 to mirror the Democratic National Committee-sanctioned move made by Nevada Democrats into the pre-window period comes to mind. But again, the examples are few and far between

² Yes, the early states could still do that if one or more states was forced into December, but as FHQ has argued that is a psychological barrier that, if crossed, would make the national parties think twice about the current set up -- including the prudence of allowing Iowa, New Hampshire and now South Carolina and Nevada to go ahead of all the other states.

³ Here's John DiStaso in his Granite Status for today:

WHY TUESDAY? Gardner said the state primary law originally called for the election to be held specifically on Tuesdays but was eventually changed to allow it to be held on any day. 

He said the change was made to cover “an extraordinary circumstance” that could put Iowa's caucus on Christmas or New Year's Day with no alternative. 

Even with the current squeeze play, “That's not coming into play this time because we're not in the position of putting Iowa on Christmas or New Year's day,” he said. 

He also said the primary would not be scheduled for a Saturday because it is the Jewish sabbath. 

“Every presidential primary has been on a Tuesday, every state primary has been on a Tuesday, and ever federal and state general election has been on a Tuesday,” Gardner said.

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North Carolina Bill to Move Presidential Primary is Only Mostly Dead1

There are very few possibilities for calendar movement outside of Iowa and New Hampshire these days. The front of the calendar -- especially post-Florida -- is where all the attention is anyway. Shuffling of states in the first Tuesday in March to second Tuesday in June window is of little consequence now. That is largely attributable to the fact that there just is not any movement on that front at the moment and there are no signs that that will change. That said, there are a few options -- not likely ones, but options nonetheless -- left.

North Carolina is one of those states. Legislation (S 440) to create a separate presidential primary and schedule it for the first Tuesday in March was introduced back in March of this year. It has had a committee hearing but has laid fallow ever since. But technically, the legislation is active and could be acted upon when the legislature reconvenes in November. The likelihood of that particular course of action seems slim at best, though (via the High Point Enterprise):

"At this point, I've not received from our members any indication that there's a groundswell to make any changes [to the primary date]," said [Senate President Pro Tem Phil] Berger, whose district includes parts of Guilford County.

...

A spokesman for House Speaker Thom Tillis, R-Mecklenburg, said to the spokesman's knowledge, there's been no talk about moving up the Republican presidential primary when the General Assembly reconvenes.

On the agenda or not, is it even possible for North Carolina legislators to move the Tarheel state presidential primary to February or January and in any way fundamentally alter the likely calendar (where it stands now minus Iowa and New Hampshire dates)? Well, for starters, and to put this into terms FHQ uses repeatedly around here and in my research, the willingness seemingly is not there and the ability may not be either. The North Carolina General Assembly will be back in session for one day on November 7. The State Elections Board has said that they need 90 days to prepare for an election. The North Carolina primary -- scheduled for the first Tuesday after the first Monday in May -- has a filing deadline of the first Tuesday in February.

If the bill passed both chambers of the legislature and was signed on November 7, the earliest North Carolina could hold a primary, given the 90 days required by state elections officials, would be the first Tuesday in February. The filing deadline would also have to be changed to a window of time about a third as small as it currently is. North Carolina, then, could hold a non-compliant primary election, but could not logistically pull off a contest that would threaten the positions of any of the early contests. But perhaps, if the willingness existed in the legislature, North Carolina could insert a primary in one of the two gaps in the calendar: February 7-28 and April 3-24.

What is much more likely, though, is that the legislature does what its leaders say it will: nothing. If the race is still competitive in May, North Carolina will be the biggest delegate prize on May 8 -- and it is a proportional contest.

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¹ Nope. I can't help the Princess Bride reference in this instance.

Recent Posts:

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