Republican Proportionality Rules Changes for 2016, Part One

These discussions never really go away, but with candidates officially announcing and 2016 drawing closer, the salience of the delegate selection rules has begun its quiet rise. Already, FHQ has seen snippets of comments and reporting out there building up the potential for rules changes -- breaking with the typical rhythms of the nomination process -- to increase the chaos of the 2016 Republican nomination process.¹ Perhaps they will. Certainly, as the story tends to go, rules changes of any stripe -- big or small -- will cause significant changes in the landscape of a nomination race.

Of course, it is always more nuanced than that. The rules changes are there, sure, but the impact is typically more muted than is often discussed. For 2016, FHQ wants to try and get out ahead of this as much as possible. That way, once primary season hits late next January or early next February, there can be a more informed discussion concerning the rules changes and the actual impact they are having on the Republican race in real time.

My column last week at Crystal Ball set a baseline of sorts, and FHQ dug a little deeper on some of the Republican rules changes for 2016 specific to the Ron-to-Rand Paul delegate maneuvering. Yet, a change by change examination may be more appropriate for our purposes; a primer in some sense.

To start, let's talk proportionality. FHQ will lay out the rules changes in this post and then follow up with an addition two or three posts on potential implications of the changes for 2016.

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The RNC adding a proportionality window was actually a big rules change during the 2012 cycle. No, the change was not large in terms of its impact. The definition of proportionality was sufficiently broad as to bring about only minimal changes to state party delegate selection plans as compared to how those same parties had operated in 2008. States were not lurching from a truly winner-take-all method of allocation to a truly proportional one. Instead, in a great many case, plans that were already hybrid plans -- in between the winner-take-all and proportional extremes on the spectrum -- that were tweaked ever so slightly to meet the requirements of the new rules for March contests.

What made the change "big" was that the Republican National Committee made the change at all. That the RNC voted for the recommendations of the Temporary Delegate Selection Committee, breaking with the national party's traditional hand-off approach to dealing with state delegate selection/allocation processes, was what was significant. Creating a mandate for proportionality in a more or less top-down way rather than leaving those matters up to the states/state parties as had historically been the case is still something that rankles some in the party.

Once such a rules change is introduced, though, the desire or perceived need to tinker with those rules becomes almost inevitable. That is particularly true after a party loses presidential election. Actually, the fun footnote to all of this is that the Romney team made the proportionality requirement optional (the infamous shall/may switch) in the version of the 2016 rules coming out of the Tampa convention. After the former Massachusetts governor had lost the 2012 election, though, the RNC readopted the requirement, trading may for shall in the language of the rule at the 2014 RNC winter meeting.

[Reference: 2016 Republican delegation selection rules]

With the quiet reintroduction of the proportionality requirement came a number of subtle changes to Rule 16(c)(2, 3).² First, the RNC compressed the proportionality window by two weeks. Instead of the allocation in primaries and caucuses having to be proportional in all of March, the 2016 rules condensed that to just the first two weeks of March. That could mean different outcomes coming out of the proportionality period dependent upon how many states actually crowd into the window. If a smaller window yields fewer contests, then the difference is likely to be negligible. If, on the other hand, a month's worth of 2012 contests clusters in that two week opening in 2016, the effect may be larger. Of course, under the 2012 rules with the broad definition of proportionality, this distinction -- a two week or month-long proportionality window -- is largely irrelevant.

However, the party simultaneously tightened the definition of proportionality. The RNC reduced the number of ways in which a state party could proportionalize to meet the requirement. In combination, a smaller (or equivalent) number of primaries and caucuses in the proportionality window in 2016 relative to 2012 plus a stricter definition of proportionality are likely to cancel each other out. As of now, there are 17 states scheduled before March 15 (not counting the four carve-out states) in 2016. Once the Republican caucuses states are added into likely positions in early March, the number of primaries and caucuses in that two week proportionality window will approach if not match the 30 (non-carve-out state) contests held before April 1 during the 2012 cycle.³

To fully understand this, though, we need to take a step back and examine the actual change in the proportionality guidelines from 2012 to 2016. How narrowly has the RNC defined proportionality or more accurately what loopholes has it eliminated? The 2012 proportionality guidance the RNC legal counsel provide states granted states a great deal of latitude in achieving a proportional plan. As FHQ argued in 2011, all a state really had to do was to make the allocation of its at-large delegates proportional. Those delegates were a smaller part of a state's total number of delegates the large a state was (based on how the RNC apportioned delegates to each of the states). There were states like Texas that overreacted and changed to a truly proportional allocation plan,⁴ and states like Ohio that mostly maintained a winner-take-all by congressional district plan, but allocated its small cache of at-large delegates proportionally based on the statewide vote.

But here is what Republican state parties were looking at in 2011  as they were putting together delegate selection plans for 2012⁵:

Proportional allocation basis shall mean that delegates are allocated in proportion to the voting results, in accordance with the following criteria: 

i. Proportional allocation of total delegates based upon the number of statewide votes cast in proportion to the number of statewide votes received by each candidate shall be the default formula for calculating delegate allocation, if no specific language is otherwise provided by a state.  

ii. If total delegate allocation is split between delegates at-large and delegates by congressional district, delegates at-large must be proportionally allocated based upon the total statewide results. 

iii. If total delegate allocation is split between delegates at-large and delegates by congressional district, delegates by congressional district may be allocated as designated by the state based upon the total congressional district results.  

iv. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached below which a candidate may receive no delegates, provided such threshold is no higher than 20%. 

v. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached above which the candidate may receive all the delegates, provided such threshold is no lower than 50%.  

vi. Proportional allocation is not required if the delegates either are elected independently on a primary ballot not in accordance with a primary presidential candidate's slate or are not bound at any time to vote for a particular candidate. 

The quick and dirty version of that is states in the 2012 proportionality window had to allocated their delegates proportionally. If the delegation was split between at-large and congressional district delegates, at-large delegates had to be proportionally allocated while states could maintain discretion over the allocation of congressional district delegates. States could further dilute proportionality by creating minimum thresholds for receiving delegates and/or receiving all of the delegates.

The RNC took that and between the convention period in 2012 and August 2014 boiled it down to this for 2016:

(3) Proportional allocation of total delegates as required by Rule 16(c)(2) shall be based upon the number of statewide votes cast or the number of congressional district votes cast in proportion to the number of votes received by each candidate.  

(i) A state may establish by statewide vote or by congressional district a minimum threshold of the percentage of votes received by a candidate that must be reached below which a candidate may receive no delegates, provided such threshold is no higher than twenty percent (20%).  

(ii) A state may establish by statewide vote or by congressional district a minimum threshold of the percentage of votes received by a candidate that must be reached above which the candidate may receive all the delegates, provided such threshold is no lower than fifty percent (50%).

Gone in 2016 is the discretion the RNC gave state parties regarding the allocation of their congressional district delegates. Those delegates can no longer be allocated winner-take-all based on the results within the congressional district. In essence more states would have to adopt plans similar to the one Alabama Republicans used in 2012. And like Alabama Republicans did in 2012, 2016 states with contests in the proportionality window can -- CAN -- add a minimum threshold for receiving any delegates and/or receiving all of the delegates (at both the statewide and congressional district level).

This would have the effect of very slightly turning the knob toward the proportional end of the spectrum in 2016 as compared to 2012. That would potentially split the delegates up even more between candidates and perhaps by some small measure slow down the nomination process. Potentially. It could also all be a wash considering that it looks like a smaller or roughly equivalent number of states will hold primaries and caucuses in the smaller 2016 proportionality window as was the case in 2012.

But those thresholds, where the state parties do have some discretion, do offer some interesting layers to the process. FHQ will examine the implications of those in Part Two.


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¹ Yes, this is mostly a Republican thing. With no real competition on the horizon on the Democratic side and no changes of consequence to the Democratic nomination rules, there is far less to talk about as far as the Democrats are concerned.

² FHQ says "quiet" because it was as if the proportionality requirement had never left. Folks at the RNC told FHQ in 2013 that the intention was to keep it in place all along; that "may" would change to "shall" in Rule 16(c)(2):

Any presidential primary, caucus, convention, or other process to elect, select, allocate, or bind delegates to the national convention that occurs prior to March 15 in the year in which the national convention is held shall provide for the allocation of delegates on a proportional basis.

³ This 2012 number includes states with primaries or caucuses before March. Florida's "move" to January 31 had the effect of stretching the proportionality window out to include February and March contests. That had a minimal impact because both Florida and Arizona ignored the proportionality requirement and most of the rest of the February delegate selection events were non-binding caucuses (not affected by the requirement).

⁴ That change was made by Texas Republicans before redistricting challenges forced the primary from the first Tuesday in March to the end of May.

⁵ None of this was codified in the actual Rules of the Republican Party. Rather, the RNC legal counsel had to provide guidance concerning what constituted allocation on a "proportional basis". That protocol has changed for the 2016 cycle. The RNC included the proportionality guidelines in the rules regarding the proportionality requirement.

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The Myth of Republican Proportionality Change

Before FHQ digs into this, go read James Hohmann's piece at Politico on the 2016 delegate selection rules changes the RNC enacted this week at its winter meeting in Washington.¹ Then check out Marc Ambinder's reaction to the new rules at The Week.

...then come back and allow me to be nitpicky for a while.

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Regular FHQ readers will recall that I spent a great deal of time and space pushing back against the nature of change that the introduction of the proportionality rules caused before and during the race for the 2012 Republican presidential nomination. John Sides and I even showed that it was the calendar changes and not the proportionality requirement that was the culprit -- if a rules-based change was to be blamed -- that drew the process out. And while many continue to harp on the "rebrand" the Republican Party has undertaken with regard to issues, most forget that one of the findings of the Growth and Opportunity Project was that impact of delegate allocation rules (ie: proportionality) is dynamics-dependent. In other words, every nomination race is different and the ways in which those delegate allocation rules affect the process are different because of it.

That said, I think a number of analyses are overstating the changes the Republicans put in place this week. And much of it has to do with the supposedly new proportionality requirements. Hohmann mentions this "new" rule that allows a (proportional) state (before March 15) to award all of its delegates to any candidate that clears the 50% threshold statewide. Additionally, Ambinder hints at the 20% of the vote that states can now require candidates to hit in order to receive any delegates.

Both changes sound like they could have some impact on any race; 2016 or otherwise. But they aren't new. In fact, both thresholds are the exact same as they were in 2012. The only real change is that both have been officially added to the broader list of rules. That wasn't the case in 2012 when the office of the RNC legal counsel provided a memo to states and other ne'er do wells about compliance with the new requirement. That memo was the guide for compliance.

Section III deals with the proportionality requirement and parts iv and v set the thresholds:

iv. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached below which a candidate may receive no delegates, provided such threshold is no higher than 20%. 

v. A state may establish a minimum threshold of the percentage of votes received by a candidate that must be reached above which the candidate may receive all the delegates, provided such threshold is no lower than 50%.

Again, this is the 2012 set up and it is no different than what the RNC officially added to the rules this time around. There was no widespread rush on the state level to up the threshold described in part iv above in 2012 (see Alabama as an example) and states like Idaho and Mississippi were among the handful of states that experimented or retained rules that allowed for a winner-take-all allocation of delegates if one candidate received a majority of the statewide vote. In fact, as I pointed out in 2011 and 2012, most states took the road of least resistance in reaction to the rules changes put in place for 2012. That is, states only changed what they had to. Where they complied with the RNC rules, they left well enough alone. This was especially true in states where the minimum threshold for gaining any delegates is set lower than 20% by state law (see New Hampshire and North Carolina for examples)

Now, another cycle of this proportionality requirement being in place may mean that states (state parties and/or state governments) have had additional time to see the true nature of the possibilities. States may have learned some in other words. But that has not really been what has been witnessed over time. Are there changes that take place that seek to exploit -- for the state's gain -- the new rules? Sure, but more often than not, they end up being exception rather than rule.

Will these "new changes" have a pronounced effect? Well, we'll see. FHQ is guessing no, since they aren't really changes for 2016 anyway. In the meantime, let's all be careful about what has changed with these rules and what it may or may not mean for the 2016 Republican presidential nomination race.

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One last thing:
Hohmann's conversation with North Dakota national committeeman, Curly Haugland is somewhat misleading. Haugland bemoaned the fact that the RNC did not take up proposed changes to correct the increased Rule 40 requirement on the number of state delegations a candidate has to control in order to have his or her name placed in nomination at the convention. This was a contentious part of the rules discussion in Tampa. Paul-aligned delegates were upset that that number of states was raised from five to eight.

The little secret here is that that rule is untouchable as are all the other rules that deal specifically with the next national convention (Rules 26-42). Rule 12, which was added in Tampa, allows for amendments to be made between conventions to Rules 1-11 and 13-25, but all the other rules -- Rule 40 included -- are off limits (to amendments) until the 2016 convention. That eight state requirement, then, could not be changed at the winter meeting of the RNC and cannot be changed until the 2016 convention.

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¹ This one is probably the best summary of the changes I've read.

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RNC Passes 2016 Delegate Selection Rules Proposals

The full RNC voted early this afternoon to pass a series of changes to the national party's delegate selection rules; the rules that will govern the process by which the party selects its next presidential nominee. Neither the Rules Committee process nor the full RNC consideration today were all that contentious. In both meetings where the changes were considered -- and ultimately passed -- there were just a handful of dissenting votes.

In other words, there was some consensus within the RNC membership behind the changes that the Rules subcommittee devised and submitted for consideration at this winter meeting.

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FHQ will certainly have a more robust analysis about the exact changes made in the coming week(s), but for now some reactions to, well, the reactions to these alterations.

A few of the talking points emerging in reaction to the changes are nothing new. They tend to fall in at least a couple of categories. On the one hand, there is skepticism that it will ever work in their intended fashion; in this case, to rein in not only a chaotic calendar formation process, but to tweak the overall nomination process. On the other, there are comments about the national parties fighting the last war; mistakenly making changes to account for problems from the last cycle.

I don't know. Those observations certainly aren't wrong, but in both cases, miss the all-too-important nuance. The "last war" line strikes me as off base in the narrow context of the relationship between the national parties and the states (whether state parties and/or state governments).¹ Of course the national parties are fighting the last war when they assemble to devise a delegate selection plan for an upcoming presidential nomination cycle. They move forward with the uncertainty-addled information they have. This is, and has been since the 1972 cycle, an iterative and sequential process. The national parties make rules and the states (and candidates) react to those rules -- some in compliance, but some, and usually only a handful, not. Wash, rinse repeat.

Only, it really is not that simple. There is no way of testing these rules changes ahead of their implementation. The only laboratory is either the experience from previous cycles or the combination of the invisible primary and primary season for the next cycle in real time. A national party does not know and often cannot (adequately) rectify midstream (see Florida and Michigan in 2008) problems that may come up along the way. That is the sequential part of the process. The national parties have to have their rules in place so that the states can react to them, to plan for the upcoming election. Only, some states don't play by the rules, or haven't in a select set of cases over the 2008 and 2012 cycles.

And that is where the probably-warranted skepticism comes in to play. State actors may behave seemingly rationally; moving a primary up and out of compliance with national party rules under the assumption that delegate sanctions will not be enforced. That line of reasoning was used numerous times in 2012 during the formation of the Republican presidential primary calendar. But for the second consecutive cycle, the RNC actually did enforce its penalties. And this is where the national parties have become more sophisticated in their responses to rogue activity. The combination of enforcement and an incremental closing of loopholes that states have exploited in the past have made it harder to states to misbehave.

FHQ spent a lot of time in 2011 and 2012 talking about the work both parties had done to coordinate the basic structure of a presidential primary calendar. We spent still more time talking about the fact that a lack of meaningful and coordinated penalties. One of the missed opportunities in 2012 was the fact that both parties had seen the ineffectiveness of the 50% delegate reduction penalty on states. It worked for most, but some were willing to take that type of hit to their delegation in order to impact the nomination process.

States may not be similarly willing to take a much deeper cut at their delegations in 2016. Nine (in the case of small states) or twelve (for big states) total delegates is a significant reduction. But you know what is missing from a lot of the reaction pieces penned in the wake of the RNC rules changes? The Democratic Party.

Oh, sure, there are certainly some light comparative mentions -- usually having to do with the respective fields of candidates and she who must not be named -- but nothing that comes close to identifying the impact the DNC's eventual delegate selection rules will have on whether the RNC will be successful in its endeavor. On the surface, that's a strange concept. It almost sounds like the DNC would be helping the RNC. [That would never happen!] But that isn't the case. This is more a matter of shared interests -- common nuisances -- among the two national parties. If the DNC ups its penalties, for example, it would go a long way toward determining whether the RNC will get the type of primary calendar it is angling for.

But if you want potential unintended consequences, look to the potential for cross-party differences over some of the Rule 20-based changes the RNC just made. These are the rules pushing up the end of the primary process. Now sure, the RNC made allowances for waivers for Democratically-controlled states that may not be able to comply with those rules (depending on what the DNC does).

That's not all of the unintended consequences either, but FHQ will save that for another time.

The bottom line for now is that the national parties are doing exactly what one would expect them to do. While they are still susceptible to rogue states, the national parties have gotten more sophisticated in their responses to them. The traditionally-exploited loopholes have largely been closed. Want rogue states in 2016? Look at the usual suspects FHQ has been mentioning for months. It won't be Florida. It'll be Arizona, Michigan, Missouri and North Carolina.

And start looking to the end of the calendar too. We may see some creative rogue states in 2016. The reactions the curbs on late May and early June contests may provide for some unconventional "rogue" activity.

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¹ In the broader context of the overarching delegate selection process, there may be something to this. Again FHQ is reminded of John Sununu's comments on this at the National Association of Secretaries of State meeting in January 2013. I'm paraphrasing here, but he mentioned that national parties often tread this line of managing or controlling the delegate selection process. He said that when parties attempt to control the process rather than manage it, they often get themselves into some form of trouble. Whether what the RNC has done this week falls into the control or manage category likely is in the eye of the beholder.

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Round Up on RNC Rules Committee Meeting

There weren't any surprises at the RNC Rules Committee meeting in DC this afternoon. Here are a few takes on the proposed 2016 delegate selection rules changes, post-meeting:

Zeke Miller at Time says the rules moves are all about the money.

WaPo's Reid Wilson and USA Today's Susan Page talk calendar compression.

Benjy Sarlin over at MSNBC frames the changes as an attempt to reduce the odds of a divisive primary.

FHQ will weigh in when we have had a chance to see the actual language of the changes. In the meantime, the package of revisions that passed the Rules Committee on a near-unanimous voice vote today heads off for consideration in the full RNC tomorrow. To pass, the series of changes will require a three-quarters vote. That is a pretty high bar, but the Rules Committee vote signals pretty close to a consensus on the changes. The committee reports will be made to the full RNC a little after 11am tomorrow morning.

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The RNC Already Increased Penalties on Potential Rogue Primary States

There is a lot of chatter this morning about what the RNC will be up to these next couple of days in Washington, DC. One thing neither the Rules Committee nor the full RNC will do -- despite the bulk of reports today -- is to increase the penalties on states that move their delegate selection contests ahead of the March 1 threshold or state parties that do not allocate delegates in accordance with the rules laid out by the national party.

Why?

Mainly, the RNC will not be upping the penalties because it has already done so. Some seem to have conveniently forgotten the struggle over the rules in the Rules Committee meetings in the week leading up to the 2012 Republican National Convention in Tampa. Perhaps the increased penalties got lost in the shuffle of Rule 40 changes that had Ron Paul delegates up in arms during the actual convention.

But the point is, the Bennett rule -- named for former Ohio GOP chair, Bob Bennett who devised the penalty -- had already been added, stripping rogue state delegations down to nine delegates (12 including the automatic delegates) for holding primaries or caucuses too early. The rules coming out of Tampa also included a 50% penalty on states that did not follow proportionality requirement. None of that is new. None of that will be new after the RNC winter meeting concludes.

What will potentially be new is:
1) The proportionality requirement will see some changes. The rules package will reduce the window of the proportionality requirement from all of March to just the first two weeks of March. Additionally, the language of the rule (described in Rule 16(c)2) will be ever so slightly altered. As it is now the word "may" appears, suggesting that states allocated delegates in a proportional manner before March 15. The new rule will, as was the case in 2012, mandate this with the word "shall". All that is doing is insuring that there is an actual proportionality requirement for the 50% penalty already described in Rule 17 to apply to.
2) The super penalty described in the Bennett rule will be tightened up to close a loophole that a very small number of small states could have exploited. FHQ has covered those discrepancies for nearly a year.

There are some other matters -- particularly Rule 20 -- that may be noteworthy during the Rules Committee meeting today. But that rule has nothing to do with penalties. It is something that will from the RNC perspective help lay the groundwork for an earlier convention. Everything else will be about tightening up the language for the penalties that are already there.

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Morton Blackwell on RNC Rules Subcommittee Proposals for 2016

Virginia Republican National Committeeman, Morton Blackwell, has posted over at RedState an open letter to RNC Chair, Reince Priebus, concerning the forthcoming Rules subcommittee proposals tweaking the 2016 delegate selection rules. The prevailing sentiment is opposition to the changes. Yet, even that is nuanced.

Some of it takes the form of a suggestion box entry. There is a call for clearer language in Rule 16(a)(1) where there appears to be an allowance on the part of the RNC for either proportional or winner-take-all allocation rules (regardless of timing). That is perhaps not completely consistent with the restrictions on winner-take-all allocation laid out later in Rule 16 and penalized in Rule 17.¹

Other points -- like the one on the width of the proportionality window -- show some resistance, but not outright defiance. The impact of an all-proportional March versus a half-proportional March (March 15 cutoff) is indeterminate. It may or may not slow down or speed up the pace with which the ultimate nominee accrues delegates. Much of that depends on the dynamics of the race -- who is still in the race, what the terrain is (what the sequence of events is).

The fact the tone is this way on these proposed rules changes may be a function of either the scale of the change or the fact that the issues in the proposed changes have been discussed and find some consensus within the Rules Committee and/or the RNC.

The new wrinkle, and where the discussion in the Rules Committee gathering at the RNC winter meeting this week in DC is likely to be interesting,² is the change proposed to Rule 20. Peter Hamby brought this up in his rundown of the proposed changes a few weeks back. This is the rule that accounts for the certification of the election/selection of delegates.

The reason that this is somewhat contentious is that this is the potential provision that would allow state Republican central committees to select delegates in states with late primaries that may conflict with the logistical requirement of having delegates in place 35 days before the convention. In other words, this is something that is necessary in order to lay the groundwork for a late June or early July convention. [FHQ has more on this here (in the discussion of providing incentive to late primary states to move up).]

Blackwell views this as an overreach of the RNC, infringing on a state's ability to select delegates to the convention as it sees fit. Whether this is eventually a contentious discussion at the meeting remains to be seen. Much will depend on the calculus of RNC members present and voting on the change. Will they see Blackwell's way or will they value the earlier convention that Chairman Priebus and others with the party want?

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¹ Mr. Blackwell also points out the inconsistency regarding automatic delegates in Rule 17 that FHQ described here.

² FHQ does not necessarily mean heated or controversial here. Rather, it may take some time to unpack and explain everything on the proposed rules change in the context of the meeting.

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For RNC Members, A Rules Contradiction That Would Affect Them in 2016

The Republican National Committee is on the eve today of another annual winter confab. This meeting will likely see the Rules Committee take up and consider -- if not vote on and send to the full RNC -- a series of tweaks to the 2016 delegate selection rules that came out of the party's Tampa convention in August 2012. This will not be the first time the Rules Committee and then the full RNC has revised those rules.¹ However, this time around, the changes are likely to be more substantial both in terms of quality and quantity. That is a function of the alterations coming out of a special rules subcommittee that was tasked last August -- at the summer meeting -- with reexamining the process by which the Republican Party nominates its presidential candidates; the delegate selection portion anyway.

One seemingly minor change that is likely to be included in the full series of proposed rules changes concerns the convention voting rights of the automatic delegates. Recall that the automatic delegates are the three members of the RNC from each state: the state party chair, the national committeeman and national committeewoman. In most but not all cases, these delegates are free to select any candidate of their choosing. They are an unbound part of the state delegation to the national convention.

That said, there has been some discussion as to how these automatic delegates should be treated at the convention should the state they represent violate the delegate selection rules on timing. In 2012, the rules the Republican Party utilized removed the voting privileges of the RNC members/automatic delegates from states in violation of those rules (Rule 16.e.1). On its surface, then, the penalty was supposed to strike at a group of people -- those RNC members involved in state party politics -- in a position within the national party to presumably deter state-level moves that would bring a state into violation of the rules. This obviously is something that is easier said in rule-making than done in practice. Regardless, the stick was put in place.

The effectiveness of such a penalty is not entirely clear, but it can be quite difficult for a state party chair or national committeeman/committeewoman to prevent a state legislature and governor -- potentially of a different party -- from acting in a manner consistent with the Republican National Committee delegate selection rules. Still, that language persists in the rules that will govern the 2016 Republican presidential nomination process.

Rule 17.f.1 (the same exact language as Rule 16.e.1 in 2012):
(f) If a state or state Republican Party is determined to be in violation:
(1) No member of the Republican National Committee from the offending state shall be permitted to serve as a delegate or alternate delegate to the national convention.

Yet, that seems to be undermined by the language describing the new super penalty earlier in Rule 17. Here's the relevant portion of Rule 17.

Rule 17.a (emphasis FHQ's):
If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state...

Now, regular readers will be acquainted with what may be perceived as an annoying practice: FHQ's insistence on saying that the super penalty reduces a state delegation to nine delegates plus the three automatic delegates should a state violate the nomination rules. That is a function of the above language. Yet, that language in Rule 17.a is contradicted by the two-part rule fully described in Rule 17.f.1-2.

The RNC members -- the three automatic delegates from each state -- have convention voting rights in one section of the rule but not the other. The RNC is aware of this issue, but it remains to be seen what the ultimate remedy will be. The penalty stripping RNC members from violating states of their convention votes is one that has passed muster with the group in the past, but given the out -- and given the reality that RNC members may have very little sway in how the timing of their state's primary, for instance, is decided -- the RNC may also opt to retain the voting privileges of their membership at the expense of other delegates from the a violating state's delegation.

Again, it is not clear what proposed changes the RNC rules subcommittee will bring to the Rules Committee on this issue and a number of others, but details will emerge as the RNC convenes tomorrow.

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¹ There was a cosmetic change to Rule 16.a.2 at the 2013 spring meeting that clarified the procedure for dealing with potential rogue delegates and their votes at the national convention.

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Another Take on the RNC's Efforts to Alter the Presidential Nomination Rules for 2016

S.V. Date has a nice synopsis up over at NPR today about what's different about the RNC work to reign in the 2016 presidential delegate selection rules relative to 2012. What is particularly worth reading is the discussion of the prospective penalties as compared to the penalties that were. The short version: In 2012, there was just one 50% penalty that could be levied once against states -- whether they violated the timing rule or the proportionality rule. In 2016 there will be a couple of sanctions; one for each type of violation.

The problem with the short version is that it glosses over a lot of the nuance.

The main issue with Date's account is that it hinges on a flawed understanding of the history of the rules the Republican National Committee has used in its delegate selection process. This flaw led to many missing out on the true essence of the proportionality rule the RNC added for the 2012 cycle. And it looks like it is going to carry over into 2016 in some cases.

Here's the line that stuck in FHQ's craw (emphasis mine):

"If this thinking sounds familiar, it should. The RNC tried to accomplish similar goals heading into 2012. The four early states were given the month of February. Other states could start holding contests on March 1 if they allocated delegates proportionally, and on April 1 if they awarded all the delegates to the top vote-getter. A state that violated either rule faced a 50-percent loss of delegates."

There was a proportionality requirement in 2012, but this makes it sound as if there was something of a winner-take-all requirement as well. There was not. The point of the April 1 threshold in 2012 was that states that chose to hold contests on or after that point on the calendar could allocate their delegates to candidates in any RNC-sanctioned method; not just winner-take-all. That was consistent with how the party had viewed delegate allocation at any point the calendar in years prior. The national party viewed that as a decision that was completely at the discretion of the states -- parties or governments.

In other words, the RNC provided no mandates -- no guidance -- to the states on the issue of delegate allocation. It was up to the states. That is just how it was for any state that held a delegate selection event on or after April 1, 2012. States were certainly allowed to allocate delegates in a winner-take-all fashion after that point on the calendar, but there was no rush by states with contests beyond that point to do so. The majority of states took the road of least resistance: they left their delegate allocation alone. The only newly added winner-take-all states to the back end of the 2012 calendar were the ones that moved beyond April 1 to protect the winner-take-all allocation they had utilized in the past (see Maryland and Wisconsin).

The point here is to point out this faulty view of the history of these rules. The Republican nomination process has never been a bastion of rampant winner-take-all rules. If anything was or has been rampant, it has been states having the freedom to choose their methods of allocation. There were curbs -- or attempts at curbs -- on that freedom for the first time on the Republican side in 2012. With a new super penalty added to the mix in 2016, there are hopes within the RNC that they have gotten things right this time.

As the party's general counsel, John Ryder, said, "I think this strikes a good balance."

--
FHQ will have more on this story later.

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A Closer Look at What the RNC Subcommittee on 2016 Delegate Selection Rules Has Been Up To

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A Closer Look at What the RNC Subcommittee on 2016 Delegate Selection Rules Has Been Up To

Back in September -- actually on the eve of the government shutdown -- FHQ took part in what has become a fairly regular series of meetings with party rules officials (and a handful of academics) from both national parties that the National Presidential Caucus has organized for several years running now. It is always a fascinating experience of which I'm thankful to be a part. I say that because these meetings offer 1) a rare opportunity to see folks from the Democratic and Republican parties constructively discuss remedies to some of the rules-based problems that are common to both parties and 2) a limited -- The parties folks play it close-to-the-vest. -- glimpse into some of the changes that are being considered for 2016.

Those events are bookmarked in FHQ's head for days like today as well; a day when news of the progress of one of the parties' rules-making comes to light. Peter Hamby has a great rundown of the situation on the Republican side as of now, about nine months before the rules for 2016 cycle will be set in stone. There's fodder in there for several posts, but let's have a more thorough look at some of the things being considered by the RNC. [Quotations below are from Hamby.]

1) "The first four early-voting states -- Iowa, New Hampshire, South Carolina and Nevada -- would continue to hold their contests in February."

This is certainly what both the RNC and DNC would like. However, other states will have a say in whether or not the carve-out states actually hold their contests in February (More on this in a moment.). One thing that should be noted is that I'm sure the Republicans that Hamby spoke with said February. And that is what the party wants. Yet, that is not what the current RNC rules say. The rules that came out of the Tampa convention last year and currently govern the 2016 process give Iowa, New Hampshire, Nevada and South Carolina a window of a month before the next earliest contest in which to schedule their primaries or caucuses (Rule 16.c.1). Now, that language is obviously apt to change -- That is what the subcommittee is up to, after all. -- but FHQ is of a mind that it will not. Ideally, those four contest occur in February, but things may push into the latter half of January.

2) "To prevent other states from jumping the order and compelling the first four to move their dates even earlier as they did in 2012, any state that attempts to hold its nominating contest before March 1 would have their number of delegates to the convention slashed to just nine people or, in the case of smaller states, one-third of their delegation -- whichever number is smaller."

If you have read FHQ closely since the conventions last year, you will note a couple of either potentially subtle or subtle changes to this particular penalty. The most obvious is the addition of a super penalty for smaller states that break the timing rule. Now, it isn't the super penalty did not apply to smaller states before. It did. Rather, the reason for the change is that the fewer delegates a state had the less the "strip them of all but nine delegates" penalty mattered. As FHQ has pointed out, there was a very small number of small states that could move their contests around and receive a penalty smaller than 50%. The RNC proposal described by Hamby closes that loophole; slicing those smaller loophole states' delegations by two-thirds if they violate the timing rule.

The less obvious matter has to do with that March 1 cutoff. Again, as FHQ has detailed, there is a window of time between the last Tuesday of February and the first Tuesday in March in which the timing rules laid out in Rule 16 are not consistent with the penalties described in Rule 17 for violating those timing rules. Rule 16 currently sets the threshold for a state having violated the timing rules at the first Tuesday in March (not March 1). But the penalty from Rule 17 is only assessed if a state holds its contest before the final Tuesday in February. One would imagine that this discrepancy would be fixed at some point -- FHQ has been told by a number of Republican rules officials that it would be addressed. -- but the above only indicates intention, not the actual rules change.

One other minor point on this one: There is a lack of consistency across a couple of other rules here that FHQ will address in a later post, but it should be noted that delegations will technically be stripped down to 12 delegates instead of nine once the three national party (automatic) delegates are added to the total. Those folks -- the state party chair, the national committeeman and the national committeewoman -- will be a part of the delegation.

3) "Any state holding a primary or caucus during the first two weeks of March must award its delegates proportionally, rather than winner-take-all."

Relative to the 2012 rules, this proposal condenses the proportionality window to just two weeks. Last year, that window encompassed any non-carve-out state with a contest prior to April 1. For all practical purposes, then, the proportionality window stretched all the way from the Florida primary on January 29 to April 1 in 2012.¹ This really is a minor shift. As the Growth and Opportunity Project Report aptly noted earlier this year, the method by which states allocate delegates does not have a very clear impact on the nomination process. Stated differently, the impact the delegate allocation rules have is dependent upon the dynamics of a given nomination race. Recall, it was the dispersion of the calendar of events that made Mitt Romney's march to 1144 so slow in 2012 and not the proportionality requirement.²

The change may be minor in terms of the actual allocation of delegates in 2016, but it does give states an extra two weeks in March in which to schedule their delegate selection events without penalty. This is a small carrot of sorts from the RNC to the states. After Super Tuesday Lite on March 6, 2012, there really were not a lot of contests until April. There was a southern swing during the second week, followed by trips to Illinois and Louisiana to close out the month. In other words, the thinking here on the part of the RNC subcommittee is that that is a spot early enough (but not too early) on the calendar to warrant a few more contests. As footnote two indicates below, Texas will already be much earlier in 2016. Those last two weeks could prove advantageous to states with traditional winner-take-all rules but which have also been later on the calendar in the past. This is speculative, but the talk among some California Republicans during 2011 when the Golden state primary was being moved from February to June was that Democrats controlling the state would just move it back in 2016 (when their party had a competitive nomination race). California Republicans have typically utilized a winner-take-all by congressional district allocation plan. If (and this is a big IF) Democratic legislators in the state actually do move the primary back up into March as they did for the 1996 cycle, Republicans in the state could continue that practice and not be penalized.

And that small extra two week window is absolutely being used by the national party as a means of enticing later states to move up. But they are also using a stick.

4) "The Republican National Convention will be held either in late June or early July, though ideally on a date before the July 4 holiday."

"Moving the convention to June would have the effect of ending the primary campaign in May because of RNC rules that require state party organizations to submit their delegate lists to the national party at least 35 days before the convention." 

"States with primaries scheduled for June 2016, including California, New Jersey and New Mexico, would essentially be holding nothing more than beauty contests. Party organizations in those states would instead submit their delegate lists to the RNC ahead of time, before any primary vote takes place, Republicans said."

The stick -- and you will have to bear with me here while I fully lay this out -- is that with an earlier convention, those late states would be meaningless beauty contest events. Well, that is the description used, but FHQ doubts very seriously that that is the case.

Why?

Read through those three paragraphs from Hamby again. Now, let's dissect that and reassemble it sequentially.

A) The RNC wants/sets a late June convention date.
B) However, the national party requires delegates to be submitted from the states 35 days in advance. This is a very real logistical issue.
C) Late states -- especially late May and June primary and caucuses/convention states -- are then in a bind as to how to select delegates.
[This is an issue that FHQ has raised before. How does a party motivate late states to stomach the expenditure necessary to shift up the dates of their contests, typically contests that are held concurrently with the nominations for down ballot races? The answer is not very easily. But...]
D) Late states are forced to submit delegates ahead of time -- ahead of their contests -- to the RNC to stay within RNC rules.  

There are two things here that require careful explication.
1) Let's take the beauty contest angle first. Did you catch the omission? Those late contests are not beauty contests. They aren't anything like the Missouri Republican primary in 2012, when voters went to the polls to cast a meaningless ballot. Well, they aren't so far as FHQ sees it, anyway. What's missing is the binding of delegates. That is the primary purpose of any primary election is the binding of delegates. In most cases, primary states still have some form or fashion of a caucuses/conventions system for actually selecting the delegates who will go to the convention. But the results of the primary bind the delegates.

There is nothing in Hamby's synopsis about the binding of delegates. A state could theoretically, then, select and submit delegates to the RNC ahead of a primary contest, the results of which would later actually bind the delegates to particular candidates (see, for instance, Romney-bound delegates who were Ron Paul supporters in 2012 -- The new RNC rules that came out of Tampa have made any mischief from those types of delegates impossible.).

Got that? Now here's one other wrinkle that brings things full circle. The new RNC rules also require the binding of delegates based on the results of the earliest statewide contest. This eliminated the beauty contest loophole that early caucuses states have used in the past to avoid the timing penalty (see Colorado and Minnesota in 2012). Those first step, precinct caucuses are the results used to bind delegates to particular candidates now. If state parties in late states use a caucuses/convention system as usual to select delegates, the precinct level results -- results in an election before the primary -- could supersede the primary results as the statewide results.

Confused?

In reality, all this really does is put the onus on the states to be very clear about what their processes -- selecting and binding -- entail. Keep in mind also that Hamby's description of this via his sources in the RNC is that it is the state party that is submitting the list of delegates; not necessarily with any input from a caucuses/convention process. When a dispute between Paul and establishment delegates in Nevada led to the cancelation of the Nevada Republican State convention in 2008, the state central committee ultimately selected the delegates who went to the St. Paul convention. To FHQ, this is the sort of process that is being described.

…and those delegates would be bound based on the results of the primary. That isn't a beauty contest. However, the fact that those primaries are late and the race will have likely been decided by that point renders it almost a beauty contest; maybe even technically so. Generally though, when we talk of beauty contests, what makes them so is the absence of a binding mechanism. It isn't clear to me that that is missing in this case. FHQ would be surprised if that was true in practice.

2) The other thing about this particular idea is that it makes for a potentially unhappy compromise. On the one hand, Tea Party folks might like the prospect of wresting control of a state party away from the establishment wing of the party. That is something about which the Tea Party faction of the Republican Party has become increasingly organized at least up to 2012. Theoretically, it gives them -- once in control -- the ability to name their folks to these delegate lists in late primary states. As has been witnessed over the last few years, however, instances of the Tea Party taking over state parties have been pretty limited in number. What this accomplishes in most cases, on the other hand, is that it provides more fuel for the fire of dissension within the Republican Party. All that does is potentially give state-level Tea Party factions one more thing to grouse about within the frame of RNC/establishment unfairness.

Both the delegate slates and beauty contest/binding issues are messy. Want to avoid them as a state party? Move your contest up. That is a pretty clever stick, folks.

…at least on paper. But states have proven clever in their own right in responding to national party rules. The problem for the states is that the national parties have wised up. They've adapted by moving to close the loopholes that states have exploited in the past.

Will it work? Time will tell.

--
As a coda to this discussion, FHQ should note the procedural barriers that the RNC now faces in changing its rules. According to Rule 12, three-quarters of the full 168 member RNC has to sign off on any rules change. That is a very high bar. First however, the subcommittee proposal -- and it will likely be introduced as a package to be voted on rather than in pieces -- will have to clear the Rules Committee. The threshold for passage there is only 50%, but something that passes the Rules Committee by a bare majority will likely not fare well before the full RNC. A near-unanimous vote in the Rules Committee may prove a necessary signal to the full RNC or at least three-fourths of them. Whether that will be sufficient in the eyes of that many RNC members remains to be seen. Three-quarters is awfully high and makes potentially big, fundamental changes with unclear ramifications that much more difficult. FHQ has spoken to a number of RNC rules folks and there are differing opinions on this. They run the gamut from confidence that the chairman can push the changes he wants through (as has typically been the case) to doubt based on how high the bar for change has been set.

It will make for an interesting set of winter and spring RNC meetings. Expect the subcommittee to issue its recommendations at the winter meeting and for them to be more fully debated and voted on at the spring or summer meeting next year.

--
¹ Well, the 2012 Republican delegate selection rules did not allow for a double penalty; one for both a timing violation and a proportionality violation. As such, the Florida delegation was only officially reduced by 50% for the timing violation.

² On that point, it should be noted that the Texas primary and its large cache of delegates will be in March 2016. A battle over redistricting in the Lone Star state forced the primary to late May 2012.

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A Deeper Dive on the New RNC Rules Subcommittee

It is perhaps premature to start talking about the implications of the newly created subcommittee that the RNC Standing Committee on Rules created last week to reexamine the party's rules regarding its presidential nomination process. There are, after all, no recommendations on the table yet; no formal proposal for reform large or small. All we have is a list of member names and one informal discussion to go on here. And the details of the latter are quite limited. At this point, that is not really all that surprising. There is still a year before the RNC will finalize the rules, so it is an ongoing process.

Still, there is a bit of tea-leaf reading that can be done in this case about what may emerge from this group's efforts and go before the full Rules Committee and possibly the full RNC. At its most basic level, there should be some line of inquiry about the 17 folks on the subcommittee. I mean, are we talking about a slew of establishment types, a bunch of Paulites or something in between? The make up of the group has some bearing on what rules changes -- if any -- it is likely to recommend.

Though it is perhaps a crude measure, FHQ is of the opinion that the roll call vote the Rules Committee had at its April spring meeting on Morton Blackwell's package of amendments is an initially good lens through which to examine the new subcommittee. Recall that the Virginia national committeeman's laundry list of changes to the rules that came out of the Tampa convention would have essentially reversed course and have reverted the rules to their 2012 nomination state. Further, that vote was a narrow victory (28-25) for the establishment, rejecting a return to the old rules. On some level, then, this vote is a pretty good proxy for a change back (grassroots)/stay the same (establishment) set of camps involved in any future subcommittee discussions.

First, let's have a look at the membership: The RNC member's state-level position is in parentheses. The vote on the the Blackwell amendment package -- where a Yes vote means changing the rules back -- as well as any other notes about the member's proximity to either the establishment or grassroots camp is also included where available.

• Bruce Ash (AZ national committeeman; Rules Committee chair) -- Yes on Blackwell.
• Shawn Steele (CA national committeeman) -- Yes on Blackwell.
• Randy Evans (GA national committeeman) -- No on Blackwell.
• Carol Mumford (RI national committeewoman) -- No on Blackwell; opposed some Tampa rules changes; supported Minority Report; endorsed Romney during the 2012 primaries.
• Henry Barbour (MS national committeeman) -- No on Blackwell; endorsed Romney during the 2012 primaries; co-author of the Growth and Opportunity Project Report.
• Bob Bennett (OH national committeeman) -- No on Blackwell; architect of 2008 Ohio Plan compromise to reform the Republican primary process; member of 2009-10 Temporary Delegate Selection Committee.
• Enid Mickelsen (UT national committeewoman) -- No on Blackwell.
• Solomon Yue (OR national committeeman) -- Yes on Blackwell; faced the ire of Paul backers in Oregon in 2012; worked to cut a deal with Paul faction on Rules Committee at RNC spring meeting in LA.
• Steve Duprey (NH national committeeman) -- No on Blackwell.
• Pat Rogers (NM national committeeman) -- No on Blackwell.
• Steve Munisteri (TX state party chair) -- Yes on Blackwell.
• Jeff Kent (WA national committeeman) -- No on Blackwell.
• Peter Feaman (FL national committeeman) -- Yes on Blackwell; was talk that Romney campaign removed from Republican National Convention Rules Committee; but was working with Romney/making the case for seating a full Florida delegation in Tampa.
• James Smack (NV national committeeman) -- Yes on Blackwell; has taken up the Ron Paul banner in the past; but has something of a pragmatic streak as well.
• Reince Priebus (RNC chair) -- n/a
• Louis Pope (MD national committeeman, RNC vice chair) -- No on Blackwell.
• Demetra Demonte (IL national committeewoman, RNC secretary) -- No on Blackwell.
• John Ryder (TN national committeeman, RNC general counsel) -- No on Blackwell.

That's ten No votes and seven Yes votes on the Blackwell package of amendments, plus any vote Chairman Priebus may have in the subcommittee process in the future. The reason that vote is a crude proxy is that there were a host of changes in there. Some of those Yes votes may have been for part of the changes specifically rather than the entire package. Once or if that is disaggregated and individual changes are dealt with in the subcommittee setting, some of those votes -- on either side -- could change.

Still, this is a rough proxy. We know, for instance, that the establishment position has the upper hand based on the numbers above. We have that as a baseline and know that the full group fits the "somewhere in between" distinction described earlier. That points toward some changes being made to the current set of rules, but not necessarily a fundamental rewriting of them or reversion to the 2012 model.

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RNC Rules Committee Shunts Reexamination of Presidential Nomination Rules to Subcommittee

After the unanimous vote this morning in Boston at the summer RNC meeting all anyone really wants to talk about is the presidential primary debate stance of the party. FHQ will have some things to say on that matter at some point (in addition to what I have already had to say via Twitter), but first thing's first.

Actions taken Thursday afternoon in the RNC Standing Committee on Rules are going to have some bearing on whatever the party decides to do with debates among a host of over rules matters affecting the 2016 delegate selection process on the Republican side. It was there, in the Westin Boston Waterfront, that the Rules Committee essentially hit the pause button on a continued piecemeal approach to tweaking the nomination rules and gave the greenlight to a subcommittee charged with developing a more sweeping proposal. That is likely -- if we are to see anything more on debates from the RNC -- to produce any rules affecting any and all presidential primary debates during the 2016 cycle. But that proposal is also likely to include a number of fixes to the existing rules.

For one thing, the may/shall issue in Rule 16(c)(2) -- bringing back the proportionality requirement for pre-April 1 primaries and caucuses -- is likely to be handled from within the subcommittee context. A fix to Rule 17 -- to help it better coexist, as intended, with Rule 16 -- will also likely emerge from those subcommittee deliberations at future meetings between now and next August when the 2016 rules will be finalized. Part of the inconsistency is the may/shall loophole. Like the Supreme Court's voiding of the current Section 4 formula in its Shelby case decision that effectively struck down the Section 5 preclearance rules regime, without "shall" in Rule 16(c)(2), the initial portion of Rule 17(a) is meaningless. There is no 50% penalty for states that violate a Rule 16(c)(2) provision that is a suggestion, not a mandate from the national party. The intent of the original combination of Rules 16 and 17 was to put in place a super penalty affecting states that held contests before the final Tuesday in February. But it was also supposed to leave in place the 50% penalty for states not abiding by the proportionality requirement before April 1. The combination of the two rules was suppose to leave an overlap for that last week in February where just the 50% penalty would apply (but only if states are not proportional in their allocation plans).

Of course that still leaves a small loophole in that last week of February where states could hold contests in that window and allocate delegates in a proportional manner to avoid any penalty. That could also be something the RNC Rules subcommittee could examine in the coming months. Indeed, Nevada Republican National Committeeman, Jim Smack, had an amendment that was deferred to the subcommittee yesterday dealing with an inconsistency between those two rules. [FHQ has not seen that amendment.]

But this is all a process and the RNC -- now through a subcommittee of the Rules Committee -- will deal with the primary rules in due time. Our best bet is to take the existing rules as our baseline and mix in the Growth and Opportunity Project Report as a broad guide to what may come out of these discussions.

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In Answer to a Nagging Question About the RNC Delegate Selection Rules

In view of the fact that Morton Blackwell does not appear to be introducing in Boston the same series of amendments to the RNC rules that he issued at the spring meeting in LA, this perhaps is not necessary.

But FHQ did get an answer to one of the questions that came out of the RNC spring meeting back in April. First, the context:

If you will recall, the Virginia committeeman submitted and then argued for a series of amendments to the RNC delegate selection rules at the LA meeting that would basically have restored the overall rules to the version that governed the 2012 Republican presidential nomination process. Those changes would have reversed some of the more controversial changes made at the Tampa convention that did not sit well with those in the Paul/libertarian/grassroots faction of the Republican Party.

However, some of those revisions called for changes to rules outside of those the RNC is permitted -- by rule -- from altering outside of conventions. One of the rules added in Tampa -- Rule 12 -- gave the RNC the power to make changes to the delegate selection rules, but only the ones not specifically dealing with the ways in which the subsequent convention would be conducted. The bottom line is that the RNC can change Rules 1-11 and Rules 13-25. Everything else -- including Rule 12 (which was controversial in its own right) -- is off limits.

Yet, Blackwell's long list of rules revisions at the spring RNC meeting stretched beyond those rules indicated in Rule 12. Rule 41, for instance, was altered in Tampa. The former Rule 40 -- one higher for 2016 because of the addition of Rule 12 -- stated that for a candidate to have his or her name placed in nomination at the convention, said candidate had to control the delegations from at least five states. The new Rule 41 raised that threshold from five to eight states. Again, that was something that stuck in the craw of those in the grassroots faction of the party; something Blackwell sought to change back in LA for 2016.

How, though, can a rule outside of the purview of Rule 12 be amended and how would that be dealt with in the context of all the other rules changes in the Blackwell series? This was something that FHQ and Zeke Miller at Time (and perhaps Politico's James Hohmann as well) went back and forth about via Twitter during the Rules Committee portion of the spring meeting. Does the fact that the amendment contains changes to rules not indicated in Rule 12 void the whole set of revisions? Is their inclusion ignored and only the rules included in Rule 12 changed as a result of the amendment? In April that was unknown.

FHQ fell more toward the latter camp, but the true answer -- after some guidance from the RNC -- is a bit more nuanced. If Blackwell were to have brought back up in Boston the same LA amendment -- reversing the Tampa changes -- and it had passed with a majority of the Rules Committee and three-quarters of the full RNC, then here is what would happen:

The rules able to be changed would be changed immediately as Rule 12 indicates. However, any rule outside of the parameters of Rule 12 included in an amendment -- yet passed by the committee and RNC -- would be sent to the next convention as a recommended change to be dealt with in that context.

As FHQ said at the outset, given that Morton Blackwell has scaled back his amendments from LA for the Boston meeting, the point seems to be moot.

But if it comes up at a future RNC meeting, this is an FYI.

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2016 RNC Rules: A Loophole and Another Layer for Would-Be Rogue States to Consider

Last week, FHQ examined more closely the so-called super penalty that is now a part of the Republican National Committee presidential delegate selection rules for 2016. That sanction is specific to states that violate the timing rules -- when a state can hold its delegate selection event -- and would reduce the delegation size of any state holding a primary or caucus before the final Tuesday in February  to twelve delegates. The point of the exercise was to show the degree to which the new restriction seemingly tamps down on would-be rogue states. It turns the knob up on the penalty on large and/or willing (and able) states and significantly whittles down the list of small states that may also want to crash the early calendar party.

Of course, the RNC rules assume that states willing and able to move up at all costs will remain mostly stationary and will not be proactive as 2016 approaches. In particular, the rules assume that 1) Republicans in especially Arizona, Florida and Michigan will find the super penalty a significant barrier to primary dates earlier than February 23, 2016 and 2) each of those states will maintain their traditional (or if not that, current) methods of delegate allocation. With regard to the former, that may be. For those states, a penalty-induced reduction to twelve delegates is going to translate to a greater than 75% penalty. Still, it will be up to actors in each state to determine whether that penalty hurts their respective states more than an earlier-than-February-23 primary would help. The RNC is betting that that will be a sufficient penalty. [FHQ tends to agree, but it is an open question from our vantage point here in 2013.]

Yet, there is some recourse for all three usual suspects (and others, if it comes to that). As FHQ has mentioned previously, the timing rules are but one area in which the RNC levies penalties. The other is in the area of delegate allocation. As the rules stand now, there is no proportionality requirement for contests held prior to April 1 as was the case in 2012. The "may/shall" question may or may not be addressed at future meetings of the RNC.¹ The calculus would be different for both the RNC and states, but if "may" is reverted to "shall" at some point, and the proportionality requirement is reaffirmed, then the door is still left open to states to skirt, or perhaps more appropriately, game the rules.

Obviously, if the there is no proportionality requirement, then the process reverts to what it was in 2008: states determine how they want to allocate their apportioned delegates regardless of the what-would-then-be meaningless penalties discussed in Rule 17.

But if there is a proportionality requirement, that 50% penalty for using non-compliant methods of allocating delegates is back on the table. The assumption within the RNC is that Arizona and Michigan could stay on February 23 -- where both states' primaries are currently scheduled according to their respective state laws -- but if they maintain their current methods of delegate allocation would be docked 50% of their delegation. That serves as a pseudo-penalty for holding a delegate selection event prior to March 1 (the first Tuesday in March in 2016). In other words, if Arizona, Michigan and also Florida want an early primary date and do not also mind a 50% penalty -- a penalty that has not proven to be a deterrent to any of those states over the course of the last two presidential election cycles -- then each state has a landing place somewhere in the week prior to March 1, 2016.²

But that 50% penalty would only be in place if those three states with a history of violations maintained non-compliant, winner-take-all methods of delegate allocation; not because they were "too early". And if you have not noticed the flaw above, let FHQ point out that under the proportionality guidance that the RNC provided in 2011 and would/will likely extend to 2016 if the proportionality requirement is reinstituted, Michigan would be rules-compliant. Well, Michigan would be rules-compliant if it utilizes the original delegate selection plan it put in place for the allocation of a full, unpenalized delegation. That is, Great Lakes state Republicans would allocate congressional district delegates in a winner-take-all fashion dependent upon who won each congressional district and the remaining at-large delegates would be proportionally allocated based on the statewide results (to candidates who surpass a 15% of the statewide vote threshold).

If that is the plan Michigan Republicans use in 2016 and the primary remains on February 23, then Michigan would face no delegate reduction. Technically, Michigan would violate Rule 16 (no contest prior to March 1), but not "qualify" for the sanction in Rule 17 (timing penalty assessed to states with contests before the last Tuesday in February).

What's interesting is that Arizona, Florida and other states could follow suit. But, focusing on Arizona and Florida, a change could be made to the method of delegate allocation, and the two states could still come out in better positions relative to their  respective 2012 allocations. What FHQ is driving at here is that Arizona and Florida could make a change from a true winner-take-all method to one of the several proportional options the RNC allows and potentially still not lose any influence.

How?

Well, a transition from a true winner-take-all allocation to a true proportional allocation is likely giving away too much; leaving too much to chance. If there is a runaway frontrunner, then it is not likely to make much difference. However, if a race is hypothetically more competitive, then a switch from winner-take-all to proportional is unnecessarily injurious in terms of the delegate advantage the state may provide the ultimate winner.

The question, then, given the combination of rules above, is whether a state such as Arizona or Florida could make a switch from a true winner-take-all system to proportional and still come out ahead.

To best highlight this we can reallocate the 2012 delegates -- unsanctioned -- and look at the difference in the delegate margins between candidates/across methods if any. This simulates a situation where either or both of the states in question could modify their delegate allocation method to avoid any sanction from the national party, even with a pre-March 1 date. To reiterate a point FHQ made ad nauseum during 2011-2012, the lowest threshold for achieving proportionality in the eyes of the RNC is the method described above: winner-take-all by congressional district and (conditionally) proportional statewide.³

Recall that Mitt Romney won both Arizona and Florida in 2012 and claimed all 29 and 50 delegates from them, respectively. In other words, the former Massachusetts governor and eventual Republican nominee left those states with either a +29 or +50 delegate margin. Those are our baselines for comparison. If Florida and Arizona were winner-take-all by congressional district, but proportional in terms of the statewide delegates (and assuming 2016 rules), both states would have potentially doubled their delegation sizes, and/but have put more delegates on the table for candidates other than the winner.

In Arizona, 58 total delegates would have been at stake. That is 27 congressional district delegates, 28 at-large delegates and 3 automatic (party) delegates. Romney won all eight congressional districts.⁴ Additionally, he carried over 52% of the vote among the three candidates who cleared the 15% threshold. [The others over 15% were Newt Gingrich and Rick Santorum.] That would have meant 24 congressional district delegates and 15 proportionally-allocated at-large delegates for Romney. Santorum would have netted 8 at-large delegates and Gingrich would have pulled in 5.⁵ With 39 total delegates, Romney would have been 31 delegates clear of his next closest rival; an advantage of two delegates more than he left the state with under the sanctioned, winner-take-all rules in 2012.

And in Florida?

Instead of a penalized total of delegates set at 50 under the winner-take-all rules, Florida would have had a total of 99 delegates at stake if Sunshine state Republicans had been compliant with the RNC rules on "proportional" delegate allocation. Encompassed in that total would have been 81 congressional district delegates, 15 at-large delegates and 3 automatic (party) delegates. In this scenario, Romney won 22 of 25 congressional districts and 59% of the statewide vote (among the two candidates who cleared 15%).⁶ The former governor, then, would have ended up with 66 congressional district delegates and 9 at-large delegates (75 total delegates). Newt Gingrich's second place finish in the January 31 primary would have meant 6 at-large delegates, and by virtue of having won three congressional districts, 9 additional congressional district delegates (15 total delegates). That leaves Romney +60 over his nearest competitor; a gain of ten delegates over the cushion he had coming out of the state under straight winner-take-all rules in 2012.⁷

In both instances -- Arizona and Florida -- the winner came out better under revised and compliant rules than under a non-compliant and penalized delegate allocation method.

Now, caveats abound in this simulation. Sure, neither state lost any influence (as measured by the delegate margin it provided the winner under the assumptions of the simulation) and in the process did not also lose any delegates. However, if the rules had been different, candidate strategy surely would have been adapted accordingly. Santorum may have opted to spend some time and resources in Arizona as opposed to focusing everything on the Michigan primary the same date (after non-binding victories elsewhere earlier in the month). Also, Gingrich could have pulled some resources from Florida and redistributed them both outside the state in preparation for subsequent contests and/or on a handful of additional Florida congressional districts where he may have been more competitive and/or could have won.

On the states' side of the equation -- or their attempts to maximize their influence in the context of the nomination process -- this does add an additional layer to the 2016 calculus. There is a new tradeoff that would-be rogue (but not so rogue in the eye of the RNC penalties) would have to or could consider. On the one hand, why lose delegates when you don't have to? Any of these three states could go earlier than March 1 and modify their delegate allocation rules to maintain compliance and not lose any delegates (as long as the contests were not scheduled before the final Tuesday in February). That is weighed, of course, against putting all of the delegates on the table in a potentially more competitive environment that may end up diluting the influence of the state in the grand scheme of winnowing the presidential field and/or proving kingmaker for the nominee, thus effectively wrapping up the nomination.

As is the case with a great many of these sorts of tradeoffs (i.e.: When is the best time to hold a primary or caucus?), it can be difficult to definitively answer the question in advance. There is too much uncertainty. Uncertainty about the identity of the candidates who may run. About how they perform in earlier states. About which candidates would still be viable at the point in the calendar when your state is scheduled. About which other states are also considering similar moves. About the usual issues of the timing of these decisions also. The decisions are often made well in advance of when a great many of those questions above can be answered so as to allow the delegate selection plan to be implemented (i.e.: to administer to the election process). The national parties do both have deadlines for when states should have in a place a plan for the upcoming delegate selection process (usually in the late summer or early fall of the year preceding a presidential election).

But states like Florida and Michigan and Arizona have shown in the past that they want to have their cake and eat it too. Threading this particular needle -- though it may be considered and ultimately acted on -- is a tough one to do in advance. If the invisible primary has seemingly produced a clear frontrunner, the gamble is easier; not so much of a gamble. The rationale among state-level actors would be, "Hey, we know the likely outcome, let's alter the delegate allocation rules so as not to lose any delegates through penalty." The closer/more competitive it looks like the race will be, though, the harder it becomes for states to pull the trigger on a plan that may or may not reduce the state's influence.

After all, a win may be a win no matter what the delegate advantage is coming out of any given state (see Santorum's early February victories in non-binding contests in Colorado, Minnesota and Missouri in 2012).

This bears watching not only in Arizona, Florida and Michigan but in other states that may opt to alter their rules to maximize their influence. Of course, none of this is likely to be taken up until state parties hold off-year conventions or executive committee meetings to make these determinations in 2015.

--
¹ The 2012 rules held that states "shall" allocate delegates in a proportionate manner if they hold contests prior to April 1 (Rule 15.b.2). The current Rule 16.c.2, however, states that states "may" hold proportional contests before that same point on the calendar. There is, then, little to no force behind the rule. It is a suggestion for 2016 instead of the mandate the rule was in 2012.

² That March 1 threshold is assumed and has proven to be a point on the calendar over which most states are unwilling to cross due to the penalties both parties have put in place.

³ Some states used this method but took advantage of a provision in the RNC definition of proportional that allowed a conditional allocation of the at-large/statewide delegates based on the results of the primary. If a candidate received a majority of the vote statewide either all of the state's delegates (congressional district delegates included) or all of the at-large delegates could be allocated to the winner. Otherwise, the allocation of the at-large would be proportional.

⁴ The strange thing about this is that neither Arizona nor Florida had newly drawn congressional districts at the times at which their primaries were held. New lines had been drawn to account for the new district in Arizona and the two new districts in Florida, but neither plan had been precleared as part of both states' coverage under the Section 5 provisions of the Voting Rights Act (as, for instance, South Carolina had in late 2011 ahead of the January presidential primary in the Palmetto state). There was still activity between the Department of Justice and both Arizona and Florida as late as April. To FHQ's knowledge, neither state overtly lobbied the RNC with the argument that lack of Section 5 preclearance effectively infringed on the states' rights to determine their own method of delegate allocation and subsequent abilities to comply with the rules. Without clearly defined and approved congressional district lines, neither Arizona nor Florida had the ability to choose any of the "proportional" methods of allocation by congressional district. Their options were either a true winner-take-all allocation or a true proportional allocation. Both obviously opted for the former; methods both states had traditionally used in the pre-proportionality requirement days (before 2012, then). This is not to suggest that those sorts of pleas would have been successful, but the argument could have been made that certain options that were available to some states were not available to Arizona or Florida. New York, for instance also had redistricting issues as well (but those were not Section 5 related) and had to have contingencies in place for the method of allocation under a 27 and 29 congressional district alignment. Those contingencies were not in place in either Arizona or Florida; some evidence that there had been no Section 5-related argument put forth by either state party before the RNC.

⁵ Due to the issue cited in footnote 4, those three congressional district delegates from the ninth district are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

⁶ See footnote 4.

⁷ Due to the issue cited in footnote 4, those six congressional district delegates from the twenty-sixth and twenty-seventh districts are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

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