Tuesday, March 4, 2014

From Utah, a Bill to Potentially Disrupt the 2016 Presidential Primary Calendar

Buckle up. This is an interesting one.

With just a little more than a week left in the Utah state legislative session, the state House is considering a bill that would shake up elections in the state. No, FHQ is not talking about the legislation that would alter the caucuses/convention process that provided so much drama during the Lee-Bennett Republican Senate nomination race. Instead, HB 410, (sponsored by Rep. Jon Cox (R-58th, Ephraim)), if passed and signed into law, could potentially overturn the applecart that is the carefully constructed 2016 presidential primary calendar.


First, FHQ should note that everything here -- whether the bill passes or not -- is contingent on the Utah legislature appropriating funds for the presidential primary election; something the body did not do for 2012. But let's assume for the a moment that the legislative body in the Beehive state provides funds in the 2016 budget -- which it will have to pass during the winter session in 2015 -- for the 2016 presidential primary. How does this bill change that?

In arguably the most provocative change, HB 410 would require the Utah lieutenant governor to schedule the Utah "Western States Presidential Primary" on a date "that is earlier than the scheduled date for any meeting, caucus, primary, vote, or other method used in any other state or territory of the United States that constitutes the first determining stage of selecting a presidential nominee."1 Compounding that is an additional provision in the bill empowering the Utah state legislature with the ability to declare by resolution that the presidential primary vote be conducted as part of an online/electronic voting pilot program.

Structurally, then, this bill has to not only pass both chambers of the Utah state legislature, but it has to be signed into law by the governor. Then, assuming all of that occurs, the state legislature has to separately appropriate funds for the election and also pass a resolution qualifying the presidential primary election for the online voting pilot program. That may or may not be a high bar, but at a minimum, that is an awful lot of legislative process. And it is all sequential. If there is an impasse at any point in that chain, everything falls apart. Keep in mind also that Utah has very short legislative sessions. That further reduces the probability of all of this coming together prior to 2016.

This remains a possibility and nothing more.

But assuming all the above benchmarks are hit, what impact would that/Utah have on the 2016 presidential primary calendar?

The main impact would be that the Utah primary would be first in the nation. The lieutenant governor would be tasked by law with scheduling the Western States Presidential Primary for a date earlier than any other contest; Iowa and New Hampshire included. We have played this game of chicken before, however. Remember that bill in Arizona last year that anchored the primary in the Grand Canyon state to the date of the caucuses in Iowa? This sort of action would likely trigger a game of chicken that advantages Iowa and New Hampshire. In the Arizona case, as long as Iowa could outlast the drop dead point at which Arizona had to set a date -- a point that would provide the state with enough lead time to prepare to conduct an election -- then they (Iowa) win.2

...and leave Arizona in the lurch in terms of when to actually set the date.

In other words, as long as Iowa and New Hampshire can wait out a state attempting to encroach on their early turf, they can retain their positions at the front of the queue. And because none of the (failed) proposals to anchor primaries or caucuses to either Iowa and/or New Hampshire or before them have contingencies in place in the very likely event that the two earliest states wait them out, those states are even further disadvantaged. There would be no guidance from state law as to when the primary should be scheduled.

Yet, the Utah proposal offers a new twist: online voting. If part of if not the main problem of successfully challenging Iowa's and New Hampshire's positions is that they have a competitive advantage in being able to more quickly organize caucuses or a primary, respectively, then why not reduce those costs? The Utah proposal in HB 410 does that on two fronts. First, online voting is cheaper. A separate presidential primary would have cost Utah up to $3 million in 2012. According to the fiscal note tied to HB 410, the infrastructure for secure online voting would cost $1.6 million up front. One would imagine that maintenance would also be required in subsequent years, but would/could be less than the original start up costs. That reduces costs relative to the flat -- yet increasing with inflation -- budget appropriation for an election with physical polling locations.

Second, the costs associated with attempting to play the brinksmanship game with Iowa and New Hampshire would be reduced to almost nil. It is much easier to move around the date of an online election than it is an election that requires reserving polling locations, organizing and paying poll workers, and reimbursing counties and/or local political units.

This is not unprecedented in presidential primary elections. The Arizona Democratic Party utilized online voting in its 2000 presidential primary/caucuses. That was more an effort to try the format than challenge the earliest states. The voting took place in the first full week of March, during a window from Tuesday through Friday before the caucuses on Saturday, March 11. That was well after Iowa and New Hampshire that year. It should also be noted that Arizona Democrats did not retain the online voting procedure for the 2004 cycle.

But the potential Utah of 2016 is not Arizona in 2000. This plan has the effect of turning the screws on Iowa and New Hampshire in a way that the post-reform system has not witnessed. Sure, there have been challenges over the years, but none of them have been successful. And no states have employed a method that streamlines the process enough to quickly adapt to anything that Iowa and New Hampshire might do. Utah may not be there. Certainly the proposed system of online voting is adaptive, but the decision-making process is fraught with the potential for legislative roadblocks. The decision on the date of the primary is not centralized as it is in New Hampshire and Georgia (with the secretary of state).

Still, we're assuming that this actually comes to pass. If that is the case, then there is one more factor to layer into this.

What about the national party delegate selection rules? There is a new super penalty (in the Republican National Committee rules) that is supposed to deter states from queue jumping like this, isn't there? There is, but that rule may have a problem. By reducing states' delegations to just 12 delegates if they have more than 30 total delegates and 9 delegates if they have fewer than 30 total, penalized states may end up with the same reduced total in the end, but different rates of reduction. Stated differently, big states take a larger hit than smaller and medium states do. A reduction of 99 delegates to 12 is a lot different than 40 delegates to 12 delegates. Florida is the 99 and Utah is the 40. Is a 70% penalty really all that much different to Utah than the 50% penalty that existed in 2012? Maybe, maybe not. Regardless, states on the smaller side of the median number of total delegates have an incentive to potentially gamble on this and that is exactly what is at stake in this Utah discussion.

It is an open question and at least one Utah legislator is of the opinion that the 70% penalty is not steep enough to deter him from introducing this bill. Time is running out in the Utah legislative session, but even if this plan goes nowhere, it may be a blueprint for future challenges to Iowa and New Hampshire.

Hat tip to Bryan Schott at Utah Policy for sending information on this bill FHQ's way.

1 This moniker is a relic of an effort by Utah and a number of other mostly Rocky Mountain states to hold a concurrent regional presidential primary in 2000. The tag has been a holdover in the state law referring to presidential primary since then. The primary is not conditioned on other states also holding delegate selection events on the same day as Utah.

2 The Arizona bill was bottled up in committee, but would have set a 90 buffer for elections administrators between when the date of the election was set and the election itself. Iowa Republicans set the date of their 2008 caucuses with under 80 days of time between that decision and the caucuses. Iowa Democrats left only about 65 days between those two points in 2008. Both Iowa Democrats and Republicans left similar windows in 2012. New Hampshire did even better in whittling down that window. Secretary of State Bill Gardner (NH-D) allow 69 days of preparation in 2012, but just 48 days in 2008.

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