Friday, April 17, 2015

Republican Proportionality Rules Changes for 2016, Part Two

Earlier this week FHQ began an examination of Republican proportionality rules changes for the 2016 presidential election cycle. On the most basic level, the Republican National Committee 1) cut the proportionality window in half for 2016 as compared to 2012 and 2) narrowed its 2012 definition of what constitutes a proportional delegate selection event for the 2016 cycle. Theoretically, the former would cut down on the number of proportional states while the latter would increase that number.1

Having established that as a baseline understanding of the differences between the 2012 and 2016 rules, the focus can now turn to the implications of those changes. In other words, now that the RNC has changed the mandate on proportionality, how will the states and state parties adapt their 2012 delegate selection plans in order to remain compliant? Four years ago, after the RNC first introduced the proportionality requirement, most states took the path of least resistance. Assuming state Republican parties had a baseline/traditional method of allocating delegates to the national convention (and of binding those delegates based on the presidential preference expressed in the primaries and caucuses) in 2008, then in response, the majority of states made the smallest changes possible to remain rules-compliant in 2012.

Proportionality Tweaking
If states in 2015 follow the same pattern, the changes will be quite minimal. As FHQ said in part one, the Republican state parties would only have to very slightly turn the knob toward the more proportional requirement the national party put in place for this cycle. To get a better sense of this let's apply the 2016 proportionality rules to the states that held contests in the 2012 proportionality window.2 This will provide a glimpse, albeit an imperfect one, into just how large the effect of the 2016 rules changes would be. If those 16 2012 states in the proportionality window created delegate selection rules in line with the 2016 rules, only 28 delegates would have been reallocated based on the results of the 2012 contests.3 That is 28 delegates out of a possible 676 total delegates in those states; just 4% of those delegates and 2% of the 1144 needed to clinch the 2012 nomination would have been reallocated.

Just over half of those 28 were from two states: Alabama and Louisiana. The Alabama primary was so closely contested between Newt Gingrich, Mitt Romney and Rick Santorum both statewide and in all seven congressional districts that, proportionally, each of the three candidates would have received a delegate from each of the seven congressional districts. The 2012 rules stipulated that the winning candidate in each congressional district should receive two delegates and the runner-up the remaining one delegate. That would have reallocated seven delegates.

In Louisiana, the state Republican Party devised rules designed to leave a number of the at-large delegates to be allocated in the primary uncommitted. Ten of the 25 at-large delegates ended up uncommitted/unbound which presumably would not be allowed under the 2016 RNC rules. Those delegates would have been proportionally allocated to Romney and Santorum.

That leaves just 11 delegates that would have changed hands in the remaining 14 2012 states if the 2016 proportionality rules had been in place. Mostly, that is due to the the fact that nine of those 14 states would have been compliant in 2012 under the 2016 rules. The dynamics will be different in 2016 than they were in 2012, but the above exercise does paint a picture of minimal effects from the proportionality changes for this current cycle.

One additional layer, where there may be some more tinkering in 2016 than there was in 2012, comes from the vote thresholds that allow candidates to either receive some delegates and/or all of the delegates in a state or district. Again, state parties can set a minimum threshold of 20% of the vote for candidates to receive any delegates from the statewide, at-large pool or in a congressional district. Additionally, the state parties can set a minimum threshold of 50% that, if a candidate won a majority of the vote statewide or in a district, that candidate would receive all of the delegates in the corresponding political unit.

States that moved more toward the proportional end of the spectrum in 2012 already mostly put thresholds of varying degrees in place (see Alabama and Mississippi). States like Ohio, which only proportionalized its at-large delegates in 2012 -- the bare-minimum action to achieve proportionality -- but left their congressional districts winner-take-all would have to make those districts proportional for 2016. Still, the rules provide a range for state parties. They can be truly proportional, where a candidate who receives 40% of the vote is allocated approximately 40% of the total pool of delegates (or delegates statewide or in a congressional district). Alternatively, states can institute a threshold up to 20% for candidates to be eligible to be allocated delegates. In other words, states are not required to have a threshold for delegate eligibility, but if they have one it cannot be set higher than 20%.

The same sort of dynamic works for the other threshold -- the winner-take-all threshold -- but in reverse. State parties do not have to put in place a percentage of the vote a candidate must win statewide or in a congressional district to receive all of the delegates in that unit, but if they do choose to put one in place, it can be no lower than 50%, a simple majority. Many states had 50% winner-take-all conditionality in 2012 (which was allowed even in the proportionality window). Ohio Republicans had such a threshold for their at-large delegates. Other states left out such a rider in their rules (see Massachusetts). Tennessee was the only state that had a threshold and set it anywhere other than 50%. For Tennessee to have been winner-take-all in 2012, a candidate would have to have won greater than 66% of the vote statewide and in each of the Volunteer state's nine congressional districts. That is a high bar to hit for winner-take-all to have been triggered.

Even though this could add to that variation, those thresholds -- both the 20% one and the 50% one -- were already built into the above simulation. Again, the changes in 2016 do not present fundamental, sweeping changes to how the delegates may be allocated in 2016.

2016 Conditions
Now, if you have read this far and are still awake, you may have thought, "Well sure, FHQ. It is easy to apply the 2016 rules to the 2012 environment, but the 2016 Republican nomination race will play out in the 2016 environment." FHQ agrees. That's why we said the earlier simulation was imperfect. It does shed some light on the limitations of rules changes, but only so much light.

So what's different about 2016?

Some might argue and indeed have argued that the 2016 Republican presidential nomination process is the most wide open a Republican nomination race has been in the post-reform era. Our measure of that is at a minimum the number of candidates who are thought to be considering a run. But better yet, the wide open race is a function of the number of potentially viable candidates who are included in that list.

Of course, there have been wide open Democratic races in the past waged under a stricter proportionality requirement that have resolved themselves in short order and certainly far short of a deadlocked convention. In the current part of the post-reform era, the earliest contests and now, even more so, the invisible primary winnow the field of candidates. The fewer candidates there are seriously competing for the nomination, the less influential proportionality rules (or proportionality rules changes) will matter, one could hypothesize.

Now, some of that winnowing effect could be countered by the raising and spending of larger amounts of money through and by super PACs. As the line from 2012 went -- and make no mistake its echoes are being heard in 2015 -- super PACs allow candidates to hang around longer. That could be. 2012 was not a good test of that hypothesis though. 2016 may be. But we'll have to wait for the data to come in.

But let's assume that a comparatively greater number of candidates with or without the help of super PACs successfully navigate and survive through Iowa, New Hampshire, South Carolina and Nevada and make it to the proportionality window that opens on March 1. [REMINDER: The carve-out states are not affected by the proportionality rule. New Hampshire is proportional based on state law and Nevada was proportional in 2012. South Carolina is winner-take all by congressional district. The jury is still out on Iowa's Republican caucuses. The age of non-binding caucuses and fantasy delegates may be over.]

Furthermore, it is worth recalling, given the Iowa part of that reminder above, that there are no more non-binding caucuses.4 Adding those states to the proportional rolls, may also have some impact on all of this. FHQ would argue that that, too, will be minimal in nature. The real change there is that delegate processes essentially go from being unregulated in 2012 to regulated in 2016. That change takes the mystery out of the delegate count. It tamps down on chaos rather than adding on to it.

Assuming then that there are a greater number of viable candidates heading into a proportional phase of the process jam-packed with contests, what sorts of fun or interesting outcomes might the proportionality rules changes for 2016 produce?

One idea that has caught some traction is that if there are a lot of candidates alive as March 1 hits and state parties have instituted the highest possible threshold for receiving any delegates, then states could end up triggering a sort of backdoor winner-take-all allocation within the proportionality window.

Let me parse that out some. Say, Jeb Bush, Ted Cruz, Mike Huckabee, Rand Paul, Marco Rubio and Scott Walker all make it through to the proportionality phase. [See, I'll bet some of you are saying to yourselves that there's no way that happens. Good. I don't think so either. When was the last time six viable candidates made it through the first four contests (some of them without winning anything)? Bear with me here.] Let's also say that every state in the proportionality window has a 20% delegate threshold. If all six candidates are on equal footing in the race to that point, then mathematically, no one can get to 20% of the vote. But all of the candidates will probably not be at parity with each other at that point in the race. Perhaps, though, one candidate is at or above 20% in a contest or more. If only one candidate clears that 20% threshold statewide or in a congressional district, that candidate would receive all of the delegates.

To be quite plain, this scenario does not require six candidates to work. It could work with fewer candidates, but as candidates are dropped one-by-one, the chances of triggering this backdoor winner-take-all allocation decreases.

Look, this sort of thing is fun to consider, but let's be real about these proportionality rules changes the RNC has added for 2016. Compared to 2012, the effects are likely to be quite minimal even with a different environment. Before we fully come to that conclusion, there is still more more phase to consider: the part of the primary calendar after the proportionality window closes. That is earlier in 2016 than it was in 2012 and has already drawn a fair amount of commentary and speculation. Some if not a majority of that commentary is misguided. FHQ will focus on the winner-take-all myth in part three.

1 That hypothesis assumes that the presidential primary calendar remains static cycle over cycle. As this blog well establishes, that is a faulty assumption. In reality, it depends on how many states choose to wedge their contests into them two week proportionality window in 2016. At this point, though the states have changed, the number of states in that proportionality window looks as though it will be approximately the same as the number of primaries and caucuses in the month-long window in 2012.

2 This excludes the carve-out states as they are exempted from the proportionality requirement under the RNC delegate selection rules. FHQ will also exclude rogue states like Arizona, Florida and Michigan that ignored the proportionality rules in 2012 and skirted penalties in the process. The reasoning for their exclusion is twofold. First, all three fall outside of the proportionality window for 2016. Simulating their proportionalization is meaningless to 2016. Second, congressional district results from the 2012 primaries in those states were not readily available. Those data are necessary to reallocate the delegates under the 2016 rules. Finally, FHQ does not include in this exercise the caucuses states where there were no formal rules for delegate allocation in 2012. Drawing a comparison, then, would be quite difficult. Additionally, congressional district results were not available in most caucuses states even if there had been rules on allocation. Overall, that removes all of the 2012 caucuses states except Alaska, Idaho, Hawaii and Kansas.

3 Those 16 states are Alaska, Georgia, Idaho, Massachusetts, Ohio, Oklahoma, Tennessee, Vermont, Virginia, Kansas, Alabama, Hawaii, Mississippi, Louisiana (25 at-large delegates), Puerto Rico and Illinois.

4 FHQ has added those non-binding caucuses to the projected number of states in the proportionality window already. That is what helps push the number of 2016 contests in the proportionality window up to around the number in the month-long window in 2012.

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Thursday, April 16, 2015

SEC Primary Bill Halted in Arkansas

Resistance in the Arkansas state House to the creation of a separate presidential primary election has killed for now the effort in the Natural state to join the SEC primary. Michael R. Wickline at the Arkansas Democrat-Gazette walks through the particulars:
Stubblefield said he withdrew his SB389 from further consideration in the House State Agencies and Governmental Affairs Committee in the waning days of this year's legislative session after it cleared the Senate on March 27. 
He said the House committee chairman Rep. Nate Bell, R-Mena, told him that he would kill the bill in the committee. 
Bell could not be reached for comment by telephone Monday afternoon or Tuesday. 
After Stubblefield introduced SB389 on Feb. 17, Bell tweeted "I oppose split primary" and "Will it be listed as donation to Huck?" -- an apparent reference to former Arkansas Gov. Mike Huckabee, who ran for the GOP nomination for president in 2008 and is considering doing so again in 2016.
There were two bills to shift the date on which the presidential primary in Arkansas will be conducted in 2016 that Senator Gary Stubblefield (R-6th, Branch) introduced during the 2015 state legislative session. One sought to create a separate presidential primary while the other would have moved all of the May primaries (presidential primary included) to the first Tuesday in March. The former passed the Senate but was blocked in the state House by Representative Nate Bell (R-20th, Mena), the chairman of the committee to which SB 389 had been referred for consideration in the lower chamber.

Rather than see the bill die a slow death as the session concluded (due to end next week), Stubblefield, the legislation's sponsor, withdrew the bill.

But perhaps the state Senate advanced the wrong bill. Bell is opposed to the separate primaries, but there was an option to move them all up from May to March. This gets at the heart of the problem for states in the position Arkansas is in. Do you create a separate primary which carries with it a price tag (and a negative impact on turnout in a later primary for other offices) or do you move everything to an earlier date that would have state legislators campaigning for renomination during the state legislative session (and would lengthen their general election campaign)? FHQ raised this predicament with Arkansas in mind back in December. It was always going to be a steeper climb for Arkansas because the decision-making calculus is different there than it is in Alabama or Mississippi. That difference proved problematic.

However, the SEC primary idea is not dead in Arkansas. It is dead for the 2015 regular session of the Arkansas General Assembly, but the idea could be resurrected in a special legislative session. Arkansas, like we saw with Missouri in 2011, grants the governor the power to not only call a special session of the legislature, but to determine on what the session will be focused. Arkansas Governor Asa Hutchinson (R), according to Wickline, has already signaled that a special session could be called to deal with the recommendations of a legislative task force on the state's Medicaid expansion.

Hutchinson could also add the SEC primary idea to the agenda. And he favors the earlier primary:
"Though the governor is supportive of moving the presidential primary, he has no intention of calling a special session for this issue," Hutchinson spokesman Kane Webb said. 
"As to the money to pay for a separate presidential election, it's his understanding that the funds are in the budget for this," Webb said.
That roadblock still exists on the House side.

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Wednesday, April 15, 2015

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.

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.

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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Tuesday, April 14, 2015

Idaho Presidential Primary Funding Bill Signed into Law

On Friday, April 10, Idaho Governor Butch Otter (R) signed SB 1178 into law. The legislation appropriates funds for the reestablished but newly separate presidential primary in the Gem state. Governor Otter signed the bill recreating the presidential primary a day earlier.

The $2 million price tag will go toward the March 8 presidential primary. Only Idaho Republicans have opted to use the primary as a means of expressing presidential preference. Democrats in the state have already chosen to maintain the caucuses/convention system the party has traditionally used. Idaho Democrats have selected March 22 as the date of the party's precinct caucuses.

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Monday, April 13, 2015

Legislation Introduced to Move Ohio Presidential Primary Back a Week to March 15

Ohio Representative Mike Dovilla (R-7th, Berea) on Monday, April 13 introduced legislation to move back the presidential primary in the Buckeye state. HB 153 would shift the Ohio presidential primary from the first Tuesday after the first Monday in March to the second Tuesday after the first Monday in March. For 2016, that would mean the difference between a March 8 primary under the current law and a March 15 contest if the law is altered.

This represents a small but potentially significant shift. That one week change means moving out of the proportionality window to a date that allows Ohio Republicans to allocate their national convention delegates in a more winner-take-all fashion. Early reporting on the bill indicates that this is the motivation behind the bill. Yet, FHQ would urge caution on that particular conclusion. That is not a function of the reporting being wrong. Rather, FHQ would point out that Ohio Republicans have typically utilized a winner-take-all by congressional district method of allocation in the past. 2012 was something of an exception when to comply with RNC rules, Ohio Republicans made the small sliver of statewide, at-large delegates proportional while the congressional district delegates were doled out to the winner of each congressional district. The "16 mini-contests" that Darrell Rowland at the Columbus Dispatch mentions (and implies were unique in 2012) have not been an uncommon feature of Ohio Republican delegate allocation. According to the Green Papers, Ohio has been winner-take-all by congressional district since at least 2000. 2012 was the only slight blip in that series of cycles.

But to be even winner-take-all by congressional district as has historically been the case in the Buckeye state, Ohio Republicans will have to have a later presidential primary.

...but just a week later to be compliant.

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Rhode Island Bill Would Move Presidential Primary from April to March

A bill filed on Thursday, April 9 would move the presidential primary in Rhode Island up from the fourth Tuesday in April to the fourth Tuesday in March. HB 6054 was introduced by state House minority leader, Brian C. Newberry (R-48th, New Smithfield). The move would pull Rhode Island out of the calendar position it used in 2012 with Connecticut, Delaware, New York and Pennsylvania to form a mid-Atlantic/northeastern regional primary and schedule it for 2016 alongside the Arizona primary on March 22.

This particulars behind this measure resemble in a number of ways the stalled effort by legislative Republicans in Connecticut to push an earlier primary bill through a Democratic-controlled legislature. If the regional cluster can be replicated in 2016, that means an additional number of delegates will be tacked on to an already small state's delegation to the Democratic National Convention. Republicans are hypothetically more motivated to move contests up in 2016 to participate in an active nomination race while Democrats are content to hold later contests and possibly in regional groupings that in both cases gain delegates.


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Nevada Senate Committee Again Tweaks February Presidential Primary Bill

On Friday, April 10, the Nevada state Senate Committee on Legislative Operations and Elections rescinded its earlier recommendation to the chamber to pass SB 421. Instead, the committee made a technical correction -- changing the date of the proposed primary from the third Tuesday to the last Tuesday in February -- and sent it back out with a "do pass" recommendation.

There are a few reminders about the dynamics around this bill that should be mentioned. First, the bill's sponsor, Senator James Settlemeyer (R-17th, Minden), sits on the committee and helped usher it through despite testimony from the Nevada Republican Party in opposition to the measure. What Settlemeyer may be able to overcome in committee is different than the obstacles he and his bill may face on the floor of the Senate. Secondly, this bill differs meaningfully from the version now active in the Assembly. While the Assembly bill creates a separate presidential primary it makes participation by the state parties optional. If the parties opt in, then a primary date in February is agreed upon and a primary election is conducted. However, if the parties opt instead to select delegates and express presidential preference through a caucuses/convention system, then there is no primary election. The Senate bill makes the primary a requirement, or at least attempts to add some legal muscle to the primary mode of delegate selection in the Silver state.

The Assembly bill is, perhaps, more forward looking: attempting to add the option for the future. The Senate bill, on the other hand, is intended, according to the sponsor, affect the 2016 process in Nevada.

The Assembly version seems the more feasible of the two. That is particularly true since both state parties have already expressed their intention to hold caucuses in 2016.

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Sunday, April 12, 2015

On Rand Paul, the Republican Presidential Nomination and Delegate Selection Rules

Jim Rutenberg has a look in today's New York Times Magazine at one advantage the Rand Paul campaign may have in a protracted race for the 2016 Republican presidential nomination: its knowledge of and ability to strategize about the Republican National Committee's intricate delegate selection rules. As Rutenberg describes it in one segment:
The process by which presidential candidates are nominated is, at its most basic level, a race toward a magic number of party delegates — in the Republican Party’s case, 1,235 required to win — amassed state by state and, in some cases, congressional district by congressional district. Getting them depends not only on the speechifying, door-to-door vote-hunting and million-dollar ad buys we associate with campaigning, but also on a bewildering array of procedural minutia: obscure national bylaws that overlay a mind-bending patchwork of local rules that can vary drastically from state to state, some of which award delegates not based on votes received in primary elections but on back-room wrangling at local party conventions and meetings that take place weeks or even months after votes are cast.
FHQ has a few thoughts on this and Rand Paul campaign strategizing in general. First, as Rutenberg points out later in the article, the RNC has tightened its rules since 2012. The objective was to cut down in 2016 on some of (what the national party viewed as) the shenanigans the Ron Paul campaign and its supporters pulled in the last campaign. This affects three areas of the nomination process for the 2016 cycle. First, there are no more non-binding caucuses. Any statewide presidential preference vote -- like a vote at precinct caucuses -- now has to guide the delegate allocation in states like Iowa or Minnesota or Maine (among others).1 That means that even if there is "back-room wrangling at local party conventions and meetings" later in the course of the caucuses/convention sequence, it will only affect who a delegate is, not to whom that delegate is bound. The preferences expressed in the first, statewide step -- the precinct caucuses -- is the one that guides subsequent steps. While the selection of delegates is still open in district conventions and at the state convention, the allocation part is mostly done after that first step. [FHQ will revisit that "mostly" momentarily.]

To make sure that the binds created during the primary or first step caucuses phase stick, the RNC also altered the process voting on the nomination at the convention. These are the other two ways in which the national party tightened its rules for 2016. First, even if a delegate bound to, say, Mitt Romney preferred Ron Paul, said delegate could not vote for Ron Paul at the convention in 2016. Rule 16(a)(2) directs the secretary of the (national) convention to "faithfully announce and record each delegate's vote in accordance with the delegate's obligation under these rules, state law or state party rules." If a candidate is bound, then, the secretary of the convention will recognize the binding rather than the delegate's preference if there is a conflict. What happens in those precinct caucuses is the guide.

That rules change is further buttressed by the increased threshold a candidate must meet to have his or her name placed in nomination. According to Rule 40, a candidate must in 2016 control delegations from eight states rather than the five that were required in 2012 to be formally nominated.

Together, those three changes makes any "wrangling" less meaningful when it comes to the nomination part of the national convention. Delegates can also affect planks on the platform and other party business, but the nomination is the big ticket item for the convention. And the RNC has closed a number of loopholes.

FHQ spoke with Rutenberg about this story, and we raised and discussed the change that closed off the non-binding caucuses loophole. One other factor we also chatted about that did not make the article was what would happens when candidates who have won some delegates withdraw from the race. What happens to those delegates? Would they become a set of free agent delegates possibly circumventing the prohibition on non-binding caucuses through a side door? The quick answer is yes in theory. However, there is a bit of nuance to this. Here is where that "mostly" from before reenters the discussion.

The interesting thing is that states and Republican state parties have in some cases been reading that change to the binding rules quite literally. That is why Iowa Republicans were concerned about the Ames Straw Poll. There was some worry that that would qualify as the first, statewide vote and thus delegates would have to be bound based on its results. Other comments from people within state parties have seemingly indicated that the thinking is delegates are bound based on the results of the primary or caucuses period. That there are no exceptions even for the delegates bound to candidates no longer in the race in April, much less at the July convention. In other words, if Carly Fiorina were to win delegates in Iowa but withdrew after the SEC primary on March 1, those Iowa delegates would still be bound to her at the national convention. FHQ does not read the RNC rules that way, and I'm willing to bet that Rand Paul and his campaign are not either. That is particularly true if Fiorina in this example were to release her Iowa delegates. They would become free agent delegate slots.

All of this does seem to open the door to some wild possibilities. On the one hand, non-binding caucuses are out, but on the other 2016 offers this supposedly wide open race for the Republican nomination. That means all those candidates could win some delegates and that even if some of those candidates withdraw, their delegates could be meaningful in helping to champion a candidate who does not hold the delegate lead based on the delegates he or she won alone. To make this clearer, Rand Paul, for instance, could wrangle to control those released delegate slots in the same district and state conventions his father's campaign exploited in 2012 to overcome a 2016 deficit in the delegate count to hypothetical leader, Jeb Bush. I mean, come on. This sounds like a dream come true for the three of us rules nerds out there wandering the wilderness, fingers crossed, hoping for just such a scenario.

Yet, here comes FHQ to throw some cold water on that notion. All this does is raise the importance of the delegate rules at both the state and national level. And it is those very rules that are very likely to limit the number of delegates who are free agents in the first place. The total number of delegate slots allocated to one candidate but filled after released in the selection process by a delegate aligned with another candidate is likely to be small. Just how small depends on a couple of factors.

First, it bears repeating that the earliest states -- carve-outs excluded -- have to allocate their delegates to candidates in a proportional manner. That said, part of the proportionality rules allow state parties to set a minimum threshold of the vote that a candidate must receive in order to be allocated any delegates at the congressional district or statewide level. That threshold can be set as high as 20% (Rule 16(c)(3)(i)). 20% is a high bar in a multi-candidate race. That means that losing candidates -- already more likely to withdraw -- are even less likely to win any delegate slots that can be exploited by other surviving candidates down the road in the process.

Secondly, the field is going to winnow the deeper the nomination process gets into the calendar. Those candidates most likely to drop out are the candidates who may be shut out of delegates within the proportionality window (March 1-14; again, the carve-outs are excluded). That means that a significantly winnowed field (two or maybe three viable candidates if history is our guide) and the end of the proportionality window are going to hit nearly simultaneously. And that translates to there likely being many fewer released delegate slots to sweep up from the beginning stages of the race.

There may be some free agent delegates in the 2016 Republican nomination process, but they are likely to be more like John Edwards' delegates in the 2008 Democratic nomination race: free to choose from among the remaining candidates but very unlikely to be decisive. Chaos could happen, but history (with an admittedly small N) and the rules suggest otherwise.

And if chaos does occur, I hope those 2012 Santorum folks now on Rand Paul's 2016 team don't count delegates like this.

1 Minnesota Republicans are in pursuit of a waiver from the Republican National Committee to continue the caucuses/convention practice as they have in the past.

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Maryland House Agrees to Senate Changes, Passes Late April Presidential Primary Bill

Maryland Governor Larry Hogan (R) will now have two presidential primary bills before him after the state House concurred on Friday, April 10 with Senate changes and passed the its bill to move the election back three weeks.

The Maryland state House passed an amended version of HB 396 that is now identical to its Senate companion, SB 204. The bills, whether one or both are signed, would shift the Maryland presidential primary from the first Tuesday in April to the fourth Tuesday in April. The original intent of the legislation in both cases was to prevent a conflict between spring holidays and the early voting window preceding the presidential primary election day. That originally meant just a one week shift to the second Tuesday in April.

However, the fourth Tuesday in April was a lure to Democrats in control of the state legislature. Neighbors Pennsylvania and Delaware are also scheduled to hold primaries on April 26. The Connecticut and Rhode Island primaries are also slated for that date.

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Saturday, April 11, 2015

Otter Signs Presidential Primary Bill, Idaho Date Set for March 8

Idaho Governor Butch Otter (R) on Thursday, April 9 signed SB 1066 into law. The measure reestablishes a presidential primary in the Gem state, but unlike in the past, the primary will now be a stand-mostly-alone election scheduled for the second Tuesday in March -- March 8 during the 2016 cycle.1 The primary elections for other state and local offices will continue to be administered but separately now in mid-May.

Idaho Democrats have already chosen to maintain the caucuses/convention system the party has utilized since 1972. Gem state Republicans, then, will hold a March 8 primary and their Democratic counterparts will caucus two weeks later on March 22. The move makes Idaho the second state to slot into the second Tuesday in March date, joining Michigan. Mississippi and Ohio already had primaries scheduled for March 8 along with Hawaii Republicans' caucuses. Washington state is currently considering legislation to shift their primary to that date, and Alabama is looking to leave the March 8 date for the SEC primary a week earlier on March 1.

A bill to fund the primary is now also on the governor's desk having passed the now-adjourned Idaho state legislature.

1 School elections are also scheduled on that date throughout parts of the state.

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