Monday, February 2, 2015

North Carolina: 2016's Rogue State?

After ceremonially opening the 2015 session almost three weeks ago, the North Carolina General Assembly set about actually beginning its legislative work for the year last week. That ends up being consequential for the 2016 presidential primary calendar in that if primary season started today, North Carolina would be non-compliant with the delegate selection rules governing both the Democratic and Republican nominations processes next year.

To quickly recap, the General Assembly passed elections legislation during the summer session in 2013 that would, among other things, create a separate presidential primary in the Tar Heel state and tether it to the South Carolina presidential primary. That provision is triggered if the South Carolina primary is scheduled for a point on the calendar before March 15. And given that the Palmetto state is one of the four carve-out states with a February calendar position already reserved for it by the national parties, that would mean the North Carolina presidential primary would be drawn into February as well.

Complicating matters further, the North Carolina law calls for the presidential primary to be held the Tuesday after the South Carolina contest. With Saturday primaries the norm in South Carolina, that would position North Carolina just three days after South Carolina. It is not codified in law, but custom, not to mention practice, has shown that decision makers in South Carolina prefer a larger buffer between the South Carolina primary and the next earliest southern contest than three days. This practice mimics the law in New Hampshire requiring the Granite state presidential primary be seven days before the next earliest "similar contest".  But again, the South Carolina practice is more custom or norm than law.

All that places North and South Carolina at something of an impasse. South Carolina is early but cannot shake North Carolina off by moving to an even earlier point on the calendar. If South Carolina moves, North Carolina moves with it.

The only thing in place to come to the aid of South Carolina is the enforcement of the national parties' delegate selection rules by the national parties themselves. By holding a primary before the first Tuesday in March, North Carolina would open itself up to incurring penalties from both parties. The DNC has a 50% penalty in place for timing/calendar violations, but provides the Democratic Rules and Bylaws Committee with the discretion to increase that penalty, as was the case with Florida and Michigan in 2008 (Rule 20.C.1.a). Additionally, the party also penalizes candidates who campaign in any rogue state in the lead up to the contest. Candidates would lose any and all pledged delegates allocated to them based on the results of the primary (Rule 20.C.1.b).

But the Democratic nomination and its attendant rules may not matter all that much if party support, polls and money raised (by super PACs) say anything about where former Secretary of State Clinton stands in the race. If the race is not all that competitive, then the rules are far less consequential.

Things are less clear on the Republican side which raises the specter of the delegate selection rules influencing the path in which the eventual nominee, if not frontrunner, takes to the nomination. The Democratic rules seem to back South Carolina up and so too do the Republican rules. For starters, South Carolina and the other three carve-out states are allowed by the RNC rules to hold contests as early as a month before the next earliest contest (Rule 16(c)(1)). That is an effective buffer for the four carve-out states in most cases. However, in an instance where the another state has its primary tethered to one of the carve-outs, it provides Iowa, New Hampshire, Nevada and South Carolina with little cover. If North Carolina remains anchored to the South Carolina primary, then neither South Carolina nor the other carve-outs can effectively escape the North Carolina primary.

The RNC rules, however, protect the carve-out states and the ideal -- from the party's perspective -- calendar through other means. Like the Democrats, the Republican National Committee also penalizes states that conduct primaries or caucuses before the first Tuesday in March. Unlike the Democrats and unlike the RNC from 2012, the 2016 version sets a more severe timing penalty than simply reducing a state's delegation by half. That 50% penalty was the same one used and enforced in both 2008 and 2012 by the Republican National Committee. Yet, with Florida and Michigan breaking the calendar rules in both 2008 and 2012 and Arizona joining in 2012, the penalty was not effective at deterring all states from those sorts of violations.

The answer for the RNC for 2016 has come in the form of the newly installed super penalty. Instead of a flat 50% penalty, the RNC has opted to reduce violating states' delegations to either 9 or 12 delegates (depending on size) (Rule 17(a)). More than three-quarters of states and territories would face a penalty of 60% or more. The large a state's delegation, the larger the penalty would be.

For a state like North Carolina -- a state that increased the size of its Republican delegation by nearly 20 delegates for 20161 -- to be reduced to 12 delegates would translate to a more than 80% penalty. That is a significantly scaled back delegation that would reshape how candidates campaign in the state. And given that North Carolina allocates its delegates proportionally to candidates based on the statewide vote, such a small delegation may not change the way the candidates approach North Carolina as much as affect decisions over whether to bother with campaigning for a proportional share of 12 delegates.2

Folks in North Carolina are just waking up to the fact that the Tar Heel state will hold an early primary next year. Some are even speculating about what kind of player North Carolina will be in the presidential nomination process. On the county level, there is some concern emerging over the logistics of a February presidential primary.

But very few here in the Tar Heel state are talking about how North Carolina will be penalized by the national party rules if the presidential primary law remains unchanged and the impact that will have on the primary and campaigns' decisions to spend money in a multi-market state for just 12 delegates.

As the North Carolina General Assembly gets down to and continues its work, it is worth watching whether legislators address the primary issue. They are aware of the potential problem. North Carolina Republican National Committeeman, David Lewis, is in the North Carolina House of Representatives. Furthermore, the RNC has expressed confidence to FHQ that this matter would be resolved.

We shall see. The RNC has been good about bringing states in line during the 2016 cycle so far (see Arizona and Florida). But North Carolina could be a real threat to the primary calendar order in 2016.  on the one hand, the carve-out states may scramble to schedule around North Carolina and run the risk of breaking the timing rules themselves. On the other hand, due to the tethering of the primary law, the four carve-out states cannot really steer clear of North Carolina. That may mean that the early states and the national parties will lean on the candidates to avoid the Tar Heel state. It could also mean that if the primary law cannot get changed in 2015 during a regular session that ends in July that the state parties will have to save the North Carolina delegate allocation process from itself by switching to later and compliant caucuses to avoid penalty.

That is a few speculative steps down the road though. North Carolina is in a provocative position on the 2016 primary calendar and step one to altering that runs through the state legislature.

Well, that and perhaps people here realizing it is a problem.

1 By maintaining a Republican-controlled legislature and winning a second US Senate seat, the governor's mansion and voting for Romney in 2012, North Carolina gained bonus delegates over its Republican share in 2012 (see RNC Rule 14(a)(5-7)). North Carolina's percentage gain in share of delegates from 2012 to 2016 is just shy of 30%.

2 It would actually be a proportionate share of just nine delegates. The three automatic delegates -- the state party chair, the national committeeman and the national committeewoman -- have been unbound and thus their allocation is not dependent upon the results of the primary.

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