Monday, September 7, 2015

Advisory No More: Nebraska Republicans Will Use Winner-Take-All Primary in 2016

Nebraska has had a presidential primary election throughout much of the post-reform era, but ever since Cornhusker state Democrats traded the May primary for earlier caucuses during the 2008 cycle, the presidential primary vote has been a virtually meaningless addition to a broader primary ballot.

In fact, on the Republican side, the presidential primary has tended to be advisory while having little or no impact on the actual allocation and binding of delegates to the national convention. For years, then, Nebraska Democrats opted into the primary and Republicans opted out. That will change in 2016, and the state party decision to change from business as usual -- adopting the presidential primary -- has as much to do with Republican National Committee delegate selection rules changes as it does with anything else.

First, the advisory Republican primary in the past has run parallel to a caucus/convention system that culminated with the selection of a bound delegation to the national convention. The state convention and delegate selection have tended to take place in July. That works in cycles in which the national conventions are scheduled in August and September. However, the RNC decision to condense the primary calendar -- on both ends -- and schedule an earlier national convention has forced rules requiring state parties to have completed their respective delegate selection processes by early June.

That put the usual July Republican state convention in Nebraska on the wrong side of the RNC delegate selection rules.

Still, the convention -- or needing an earlier one in any event -- was just one rules change hoop Nebraska Republicans had to jump through. The state party also had to shed its non-binding caucuses. That was due not only to RNC rules requiring for the first time the binding of national convention delegates in 2016, but to a change in Nebraska state law in 2014 as well. The latter newly required both state parties to allocate at least 80% of their delegates through either a primary or caucus/convention process. Those RNC rules, however, pushed Nebraska Republicans to make a decision between a caucus process that would have begun prior to the mid-May primary election or to choose the primary as the mode by which the party would select, allocate and bind 2016 delegates.1

Faced with those alternatives, the Nebraska Republican Party opted for compliance via the path of least resistance: using the primary.

Given that decision, though, the party did have the latitude to choose any method of delegate allocation based on the results of the May primary. Here, the Nebraska Republican Party chose a unique route relative to other states with delegate selection events after March 2016. The party chose to allocate their delegates in a winner-take-all fashion.2 That decision may be more a function of being required to make a change -- from completely unbound to bound -- than anything else. States with contests after March that also had rules binding delegates have shown little movement toward rules that are or will be any more winner-take-most/all than they were in 2012.

Forced to bind delegates, Nebraska has decided to go for the maximum effect: binding all 33 non-automatic delegates to the winner of the May 10 presidential primary.3 The remaining three automatic, party delegates will be free to either operate above the fray and remain unbound or cast their lot with a candidate of their choice (whether reflective of the primary winner or not).

1 Any statewide vote on presidential preference would be the result to which the allocation of delegates would have been tied. So, Nebraska Republicans could have had a preference vote at precinct caucuses across the state, but they would have to have preceded the mid-May primary to be the event that affected delegate allocation. Under that scenario, the party could have retained the advisory primary, though would likely have had to acknowledge more formally that it could not be advisory ex post facto (after the precinct caucuses preference vote).

2 Even the language of that state party rules (party constitution) change is unique (Article VII, Section 3(a)):
All candidates for National Convention delegate and alternate delegate at the State Convention shall designate the presidential candidate to whom they are committed and shall be bound by such commitment if elected in accordance with Nebraska State Law. Delegate and alternate candidates shall indicate their commitments by mailing a notice to the State Headquarters, postmarked no later than 10 business days prior to the date the State Convention commences. Only individuals pledged to the candidate who wins the Nebraska Primary Election shall be eligible for election as delegates or alternate delegates to the National Convention.
That last line is the important one. The rule does not directly say that the allocation is winner-take-all, but only the delegates affiliated with/pledged to the winner of the primary are eligible to be selected by the state convention.

These changes to the state party constitution were made on June 6, 2015.

3 Yes, the maximum effect idea assumes that the race is still competitive when it gets to May. That may or may not happen. The point at which 75% of the delegates will have been allocated will occur in late April, before the Nebraska primary.

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