Saturday, March 14, 2015

Nevada Bill Would Create Presidential Primary, Schedule for January

To close the work week, the Nevada state legislature went out with a bit of a bang ( least in the presidential primary universe).

On Friday, March 13, Assemblymen John Hambrick (R-2nd, Clark) and Stephen Silberkraus (R-29th, Clark) introduced AB 302. The legislation, seemingly a replica of the state Senate bill filed two years ago, would move the June primaries for state and local offices from June to January and consolidate with them a newly established presidential primary. Those concurrent primaries would together fall on the Tuesday prior to the final Tuesday in January according to the bill.

Since a similar version of this bill died in committee back in 2013, let's look back at some of FHQ's comments from then that are still relevant in light of this 2015 legislation [Note: These comments have been edited due to what has changed with the calendar since March 2013.]:
  • The Tuesday before the last Tuesday in January 2016 is January 19 (the date as it turns out of the 2008 Nevada caucuses).

  • This bill, if passed, would violate the national party delegate selection rules. Under the DNC rules, Nevada would initially lose half of its delegates, but would also be open to a stiffer punishment from the Rules and Bylaws Committee if the committee deemed such a move appropriate. The Nevada caucuses are protected in the DNC rules, not a primary. Those caucuses are slotted into a position no earlier than ten days before March 1 (in 2016). That raises two interesting conflicts with the Democratic rules: 1) the switch to a primary when the caucuses are protected and 2) a January primary date is much earlier than February 20, the date 10 days prior to March 1. Nevada Democrats did caucus in January 2012 with no penalty and with similar language in the DNC rules as exist for the 2016 cycle. But many states got a pass from the DNC on bending the rules in 2012 with President Obama running unopposed for renomination. 2016 may or may not be a different story.   

  • On the Republican side, matters would be perhaps more interesting, but definitely clearer. Nevada would be subject to the super penalty -- a reduction to six delegates plus the three RNC members from the state -- in the RNC rules if it jumped into January unprovoked. If any state other than the carve-out states schedules a primary or caucuses before March 1, then the four carve-out states have a month prior to that contest in which to schedule their respective delegate selection events. Should New York, for instance, fail to shift its primary -- currently scheduled for February 2, 2016 -- back into compliance with the national party rules, then Iowa, New Hampshire, Nevada and South Carolina could schedule their contest as early as January 2 under the RNC rules. In that scenario, none of the carve-out states would be subject to penalty as long as none were scheduled prior to January 2. 

  • Republicans, continued: If, however, Nevada moves into January unprovoked, then Silver state Republicans would be subject to the super penalty. The language of the RNC rule does not address the scenario under which a carve-out state takes the initiative to move to a position before February, pushing the other carve-out states forward into January. Would Nevada be subject to the penalties and not the other three? Or does Nevada take the other three down with them.

  • If a rogue state is a western state (defined as Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, New Mexico, Oregon, Utah, Washington and/or Wyoming), then the Nevada secretary of state can move the primary (with the approval of the Legislative Commission) to as early as January 2 on the condition that the primary not fall on a Saturday, Sunday or legal holiday. It is worth noting that there is no required buffer between Nevada and any other state, western or otherwise. But if a western state attempts to jump ahead of Nevada, the secretary of state can push the primary up to January 2. This far into the active 2015 state legislative sessions, the only western state that comes anywhere close to threatening Nevada is Colorado. Based on existing state law in the Centennial state, the Colorado parties can opt to hold either first Tuesday in February or first Tuesday in March caucuses. Even if one of the Colorado parties chooses the earlier of the two dates, the January date called for in the Nevada bill would be safe. None of the other western states have or are looking at anything earlier than March 8. 

  • Additionally, the legislation also requires the state parties to, in electing delegates, to have that process "reasonably reflect" the results of the presidential primary. There is no definition of "reasonably reflect" in the bill. But more importantly, this provision in the bill (and proposed law) would bind national convention delegates to candidates based on the presidential primary vote. That provision would potentially open up a fight between the state government and the state parties over which entity has the ability to dictate the rules of delegate selection in the state. A court battle is likely not the intention of this legislation. However, if the state parties want to retain a caucuses/convention system and have control over their delegate selection processes, they would have a leg to stand on in court. Such freedom of association disputes between state governments and state parties seldom favor governments. This part is going to be a non-starter with the parties in Nevada. 

  • Both sponsors of the bill are Republicans. Republicans control both legislative chambers in Nevada and the governor's mansion. That may have an impact on how far this bill goes. It may also trigger infighting among majority Republicans to the extent there is sizable support for the legislation.

  • Nevada last held a presidential primary in 1996.
This one is definitely one to watch. If Nevada jumps into January, it will not do so alone. This is not about being first. Nevada won't be. Iowa, New Hampshire would definitely and South Carolina Republicans might also jump ahead of a January 19 Nevada primary.

If South Carolina Republicans join the fray, the calendar may look something like:
Saturday, January 2: Iowa caucuses
Tuesday, January 5: New Hampshire primary
Saturday, January 16: South Carolina Republican primary
Tuesday, January 19: Nevada primary, North Carolina primary (???)

If South Carolina Republicans let Nevada jump ahead (which has not happened since both were added as carve-outs for the 2008 cycle), things may look like this:
Monday, January 4: Iowa caucuses
Tuesday, January 12: New Hampshire primary
Tuesday, January 19: Nevada primary

Super speculative, yes. Premature, sure. Yet, this is what the scenarios look like if this bill successfully navigates the legislature and is signed into law by the governor. Consider for a moment a primary calendar that again commences right after the new year begins, progresses through contests in three or four carve-out states, and then yields a solid six weeks of potentially no primaries or caucuses before the proposed SEC primary on March 1.

But why would Nevada -- already with a privileged position in the nomination process -- set off such a chain of events?

UPDATE 3/24/15: January primary provision to be amended out
UPDATE 3/29/15: Senate version of January bill introduced
UPDATE 4/2/15: Hearing for Senate bill strips out January primary provision
UPDATE 4/9/15: Third Tuesday in February primary bill passed Senate committee
UPDATE 4/10/15: Amended Assembly bill for February primary option clears committee

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John said...

Iowa Democrats have long been adamant against Saturdays due to Jewish religious concerns (says this Iowa Democrat who would prefer Saturday). However, the person who pushed hardest against it passed away last year, and my gut tells me we'd do whatever was needed to keep first.

Josh Putnam said...

That worst case scenario would really limit the options available to Iowa if they are also constrained by the need to keep the caucuses in calendar year 2016.