Tuesday, December 13, 2022

Iowa and New Hampshire Are No Strangers to Threats: The case of 1984 and what it may mean for 2024

For those who closely follow presidential nominations, there are handful of things that everyone knows about them. Among them are that Iowa and New Hampshire always go first, both states jealously guard those respective positions, and, for some time in the Democratic Party process, both have become decreasing demographically aligned with the party's overall primary electorate. That last one is a new(-ish) element and is part of what has Iowa on the outside looking in, and New Hampshire likely to follow it, in the new calendar outline proposed by President Biden and recently adopted by the DNC Rules and Bylaws Committee (DNCRBC).

But guarding first-in-the-nation status is a reality that constantly keeps Iowa and New Hampshire under threat whether by ever-changing national party rules or by other states encroaching on their turf (or both!) in a given cycle. The 2024 cycle, then, is not the first time that those in Iowa and New Hampshire have had to stare down a long and difficult journey back to the top before voting starts. Some, in the wake of the newly rolled-out Democratic calendar outline, have been quick to raise 2008 as a case when the traditional first pair overcame the odds and ended up back at the front of the queue. Yes, in 2007 state governments -- legislators and governors -- in both Florida and Michigan pushed primaries in each state into January. Legislators in Florida first slotted the primary there into a January 29 position, and later in the year, the Michigan primary was scheduled for January 15. 

Those moves had the effect of disrupting the DNC plans to hold an expanded early window of four contests (instead of just two), none of which could be held before their respective dates below:
Monday, January 14: Iowa caucuses
Saturday, January 19: Nevada caucuses
Tuesday, January 22: New Hampshire primary
Tuesday, January 29: South Carolina Democratic primary

But the Florida and Michigan primary shifts had the effect of nudging Iowa and New Hampshire closer to the beginning of the year while Nevada held the line on January 19. South Carolina Democrats, to stay ahead of Florida as the first contest in the South, bumped their contest up to Saturday, January 26. But again, all four states were protected. Unlike Democrats in Florida and Michigan, those in Iowa, New Hampshire, Nevada and South Carolina had spots codified in DNC rules that each attempted to protect once the interloping states had crossed into the pre-window period (which at that point, meant contests earlier the first Tuesday in February).

And that is a good example of a threat to Iowa and New Hampshire. But it is not exactly the best historical example of a cycle that found the typical leadoff states pitted against the Democratic National Committee and its rules for delegate selection. To find such an example one has to go all the way back to the 1984 cycle, one that partially laid the predicate for some of the actions taken in 2008. 

The 1984 environment
Rules changes
After the Democratic Party fundamentally reshaped the way in which candidates were nominated for president after 1968, the party spent the 1970s tinkering with the rules by which those candidates were nominated. The 1984 cycle, the fourth since reform, was no different. This was the cycle after all that added superdelegates to the equation. 

But there were also changes to the rules regarding the timing of delegate selection events. The rule for 1972 and 1976 was that all primaries and caucuses were to be held within the calendar year of the presidential election. For 1980, the party added the so-called "window" rule. All contests were to occur in a thirteen week period between the second Tuesday in March and the second Tuesday in June. Exceptions were made then for any states that held contests in 1976 before that earliest point in the window. That not only exempted Iowa and New Hampshire in 1980, but a host of other caucus states

Coming off a loss in the 1980 general election, however, the DNC altered the parameters of that rule for 1984 even further. It specified for the first time the states that could hold contests prior to the second Tuesday in March, granting the New Hampshire primary a slot seven days before the opening of the window and the Iowa caucuses one 15 days before it. Furthermore, Charles Manatt, the DNC chair, signaled that the party would crack down on window violations in the 1984 cycle, warning that refusal to seat delegates from violating states was on the table. 

New Hampshire conflict
Of course, a problem arose. [They nearly always do.]

Granted, the rule change was mostly effective in ridding the early window of would-be rogue contests in 1984. Importantly, it cleared the Massachusetts primary and Minnesota caucuses from the pre-window. But a quirky legacy system in Vermont remained and proved problematic. Town meetings have always been scheduled for the first Tuesday in March. They still are. During that era, however, Vermont Democrats added a non-binding presidential preference vote to the proceedings as well. It was a straw poll that had no bearing on delegate allocation in the state. Allocation did not occur until the state convention in April. 

New Hampshire maneuvered around the straw poll in both 1976 and 1980, going one week earlier each time. But in each of those cycles, the secretary of state, acted not only in accordance with the 1975 law granting his office the ability to set the date of the primary (and keep it first), but consistent with the DNC rules for those cycles as well. 

Yet, the DNC rules were different for 1984. The beauty contest "primary" in Vermont was scheduled for the week before the second Tuesday in March opening to the Democrats' recognized window. And New Hampshire Secretary of State William Gardner viewed Vermont's presence on the date set aside for the New Hampshire primary by the DNC as a problem for him with respect to implementing the date-setting provision of the presidential primary law in the Granite state. 

This was already inflaming tensions between Democrats in the neighboring northeastern states and at the national party as early as January 1983, more than a year the voting began. Vermont's state chair said at the time, "If there is a problem, it is New Hampshire's."

But it was a problem for Democrats in more than just New Hampshire. Gardner's signal that the New Hampshire primary would fall on February 28 -- out of compliance with the DNC timing rules -- roiled Democrats in Iowa. If Vermont pushed the New Hampshire contest up a week from their DNC-designated position, then that primary would be held just a day after the slot set aside by the DNC for the Iowa caucuses. Legislators in the Hawkeye state responded in kind in the spring of 1983, changing state law and creating a New Hampshire-like buffer for the caucuses. Under state laws after that point, the New Hampshire primary would be scheduled by the secretary of state there for a week before any other similar event and Iowa's caucuses would end up eight days earlier than any other similar contest

All of this occurred before June 1983 when the DNC's Compliance Committee, the precursor to Rules and Bylaws, met to consider delegate selection plans from the state Democratic parties for the 1984 cycle. With the backing of DNC Chair Manatt -- who again, was adamant that the rules would be enforced in 1984 -- rejected all state plans that broke with the timetable for contests, including both Iowa's and New Hampshire's.

And those threats from the national party meant enough at that time that Iowa Democrats had second thoughts as the impasse with the national party stretched deep into the fall of 1983, barely three months out from the commencement of voting. A compromise emerged from a November 1983 state central committee meeting that set December 10 as a deadline for the Iowa Democratic Party's state central committee. If New Hampshire had not shifted its primary into compliance with DNC rules by that point, then the caucuses in Iowa would proceed on February 20 (instead of the rules-based February 27 date). The rationale was that if the DNC eventually let New Hampshire slide, then Iowa would be in the clear as well. 

The courts get involved
December 10 came and went with no changes from New Hampshire, and that seemed to lock both states into the non-compliant dates for 1984. But the fear that Iowa's delegation would not be seated at the national convention had extended from some quarters of the Iowa Democratic Party (IDP) to the campaigns themselves. Charles Gifford, a member of the IDP state central committee and two state co-chairs of former Vice President Walter Mondale's campaign brought suit against the state party to prevent it from conducting a non-compliant contest on February 20 and reinstate the February 27 date.

However, the state party along with the campaigns of John Glenn and Alan Cranston argued that changing back to the February 27 date would create "irreparable harm" for the candidates because of the investments of both time and money each campaign had made in Iowa. 

Not only was this a political conflict between representatives of three campaigns for candidates involved in the 1984 Democratic nomination race, but it indirectly raised a conflict between the state law in Iowa and the national party rules. The decision in the case conceded that the Iowa Mondale representatives were "entitled to relief" but that that was "outweighed by the irreparable harm that changing the rules of the presidential nominating process [in Iowa] at this late date may have."1

It was the timing that mattered. That the date impasse lasted nearly into 1984 and additionally that the campaigns had already invested based on a particular calendar were factors that ended up carrying the day in court. And it is that sort of timing issue that tends to catch up with national parties in this process. Enforcement of the rules -- if they rise to a delegation not being seated at a convention -- come at a point at the end of primary season when the party is shifting toward unifying with general election victory in mind. That is why the DNC conceded in May 1984, agreeing to seat both states' delegations at the convention.

That was the precedent set in 1984, and what actors in both Iowa and New Hampshire banked on in 2008. Once again for 2008, the DNC had carved out particular positions for not only Iowa and New Hampshire, but also Nevada and South Carolina. And technically, Iowa, New Hampshire and South Carolina all broke the rules for 2008. But each did so to protect the order the DNC had laid out for the nomination to progress; an order disrupted, in part, by Democrats in Florida and Michigan. Each avoided sanction. And in the end, on the eve of the Denver convention, the Florida and Michigan delegations were reinstated in full as well.

What 1984 may mean for 2024
Clearly there are some similarities. Just like in the 1984 cycle, Iowa and New Hampshire perceive some threat in the proposed calendar changes to their privileged status as lead off states in the presidential nomination process in 2024. And timing matters too. Past actions have indicated to decision makers in both states that the national party is likely to fold in the interest of general election unity in the end anyway.

But 2024 is different. 

The proposed rules are different. Iowa is no longer protected at all. And New Hampshire has more specifically been assigned to a position that conflicts with its state law. Or rather other states have been protected -- and placed ahead of or alongside the New Hampshire primary -- in the proposed DNC rules with no regard for that state law (or with a probably futile eye toward attempting to change it). This is not a situation like Vermont in 1983. This is the national party codifying a different order, and in the process creating a different starting point for this exercise than has existed in any other cycle in the post-reform era. 

There is a certain latitude that Iowa and New Hampshire have always operated under prior to this cycle. And the rationale is simple enough. It came out in the late 1983 discussions in Iowa and was a part of the lore of both 1984 and 2008. Essentially, it comes down to "if the national party protected us as the first contests, then it will not matter if we make moves to insure the order they wanted."

Look, Iowa and New Hampshire will be first in 2024. ...in the Republican process. Iowa Republicans will schedule early (likely January) caucuses and the New Hampshire secretary of state has already promised to do likewise to protect the status of the presidential primary in the Granite state.

The question is whether the state Democratic parties break and seek alternate means of allocating delegates under the pressure of the national party penalties and candidate deterrents designed to keep candidates away and off the ballot. This, of course, will be greatly affected by whether President Biden opts to throw his hat back into the ring and seek renomination. 

Should the president run largely unopposed, then Iowa and New Hampshire Democrats are stuck; stuck between state law and national party rules. However, in Iowa that same state law that creates an eight day buffer between the caucuses and any other contest still empowers the state central committees of the parties to schedule those contests. And in both 2008 and 2012, Iowa Democrats selected dates that were fewer than eight days before the New Hampshire primary without any penalty. There is no penalty for breaking the state law. That is true in the Granite state as well. There is no penalty for breaking state law there either. But in contrast, the New Hampshire secretary of state controls the selection of the primary date and not the state party, leaving the party to find some alternative should it opt out of the primary.

Early reviews for 2024, however, from both Iowa and New Hampshire Democrats has been mostly negative and the tone struck, defiant in the face of the proposed rules changes. 

But the lesson of 1984 may not be in what has come to be an on-again-off-again struggle between the earliest states and the national party. Instead, the lesson may be in potential legal remedies if those with standing move quickly. Remember, the challenge to the earlier 1984 caucus date in Iowa played out between campaign proxies of one candidate on one side and a state party with opposing candidates as intervenors on the other. 

If Iowa and New Hampshire Democrats remain defiant into 2023 and if Biden opts to run -- relevant IFs -- then Biden proxies in Iowa and/or New Hampshire (if there are any left) could bring suit against the state parties, arguing that supporters of the president from those states run the risk of being shut out of the national convention. In other words, because of the non-compliant contests, both states gamble that their delegations will either be reduced or not seated.

Admittedly, that is quite a few steps down the line. And if Iowa and New Hampshire are serious about protecting their first-in-the-nation status -- which they are -- then neither will have official contest dates until far later in the year.  That appears to once again push this exchange between the national party (or national candidates) and those on the state level to a point that is once again close to when voting begins; a point in the timeline in 2023 when other candidates may have entered the race and already invested heavily in those two states. 

But there may not be other candidates. There may not be other candidates who are willing to expend resources in a couple of states that stray from the DNC rules. 

Even before that, however, there are processes in place. Democrats from both Iowa and New Hampshire will have to submit delegate selection plans to the DNCRBC by early May 2023. That process will document either the state parties' continued defiance or that they will stand down and follow the rules. Continued defiance -- a documented non-compliant date in a proposed delegate selection plan -- would mean that Democrats from both states would find themselves with a rejected plan likely in June. 

With the state parties on record and a plan rejected, interested Democrats in the two states -- whether for the president or not -- may move legally to compel the state parties to hold compliant contests for fear of being disenfranchised in the process without one.

They could.

But again, that is long way down the road. The DNCRBC wants to break the will of Iowa and New Hampshire Democrats. Actually, the panel and the party just want states to follow the rules. But they are unlikely to get that. Instead, they will have to lean on penalties designed to compel state cooperation. That may not work either. But if the president runs for reelection as expected and runs unopposed or largely unopposed for the nomination, then that may not mean the temperature gets turned down on this as it otherwise would in an uncompetitive environment. It may mean that the party ratchets up the tension with the state parties to set a new precedent for 2028 and beyond. 

The first step of that is in place. And unlike 1984, Iowa and New Hampshire do not have the same protections in DNC rules for 2024.

1 Information in The 1984 environment section leans on work in Hugh Winebrenner's essay, "Defending Iowa's First-in-the-Nation Status -- The 1984 Precinct Caucuses" from the Annals of Iowa (1986).


No comments: