Monday, December 30, 2013

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.

Are you following FHQ on TwitterGoogle+ and Facebook? Click on the links to join in.

Friday, December 20, 2013

Is South Carolina losing its early-primary luster?

Here we go again.

FHQ realizes that we are still roughly two years away from the presidential primary season kicking off in earnest and story ideas are limited. But come on. There's absolutely no need to keep rehashing these same stories over and over again. Remember four years ago when Iowa Republicans -- and the press folks who pushed the story -- were lamenting the fact that none of the (prospective) candidates were traipsing across the Hawkeye state wooing potential caucus-goers?

Well, now the dateline has changed. The worrywarts have moved south to the Palmetto state and the fortunes of the South Carolina primary in the context of the Republican nomination process. And it is all no more warranted in South Carolina than it was in Iowa four years ago.

The question, then: Is South Carolina losing its early-primary luster?


And the kicker here is that Ali Weinberg's piece at First Read says exactly why the answer is no. South Carolina Republicans haven't lost anything. In fact, unless the RNC fundamentally alters its primary rules between now and summer 2014, South Carolina will have gained leverage -- via the rules -- over the state's position in 2012. Not only does South Carolina have its position as one of the first four "carve-out" states to hold a nominating contest in 2016, but the state and the other three privileged states have up to a month before the next earliest contest in which to schedule their primaries or caucuses.

Does that guarantee "luster"?

I suppose that depends on how you want to define luster. If you define it -- as both the First Read and State items do -- as somehow hinging on this illusory notion of "picking presidents" then, yeah, perhaps South Carolina has lost one claim that has been able to trumpet in the context of Republican nominations since 1980. But come on. That's not luster.

The truth of the matter is that South Carolina will have either the third or fourth position in the Republican primary calendar in 2016, and with that comes something. FHQ won't call it luster. But it does offer South Carolina just what it has since 1980: a privileged position to have among the first cracks at importantly winnowing the field of candidates.

That's what these early contests do. Can they "pick presidents"? Sometimes. Do they always? Nope.  That really often depends on the idiosyncratic dynamics of a given nomination race and how it meanders through the sequence of delegate selection events.

As a postscript, FHQ does want to once again highlight something that looks to be, well, cumbersome to overcome for some during the 2016 cycle. Everyone keeps raising the specter of Florida. In this South Carolina discussion, it is that candidates would rather spend time in Florida than South Carolina. Of course, this is rooted in the activity -- the experience with -- the Sunshine state in the formation of the primary calendar these last two cycles.

But it really does look as if many -- at least the ones that are writing about these issues so early -- are ignoring reality. The assumption is that South Carolina will happen and then ten days later, the next contest will be in Florida. That was absolutely the case in 2008 and 2012.

It is not the case for 2016 as of now. And even if Florida was somehow immediately after South Carolina, the Florida primary would not be the only game in town that week.


Well, the way the primary election law is structured in Florida, the primary there falls on the earliest unpenalized date. If Republicans in Florida stick with a true winner-take-all allocation of delegates (and the RNC fixes the may/shall issue for the proportionality requirement1), then the Sunshine state primary will fall on the third Tuesday in March; well after where South Carolina will end up on the calendar.

Again, FHQ says "as of now" because the law can certainly be changed. But that just doesn't seem likely for now.

So, if you are into worrying about poor little ol' South Carolina and its primary, worry about Michigan and Arizona. They are more problematic to where the Palmetto primary will land.

…and it isn't clear that South Carolina really gives two shakes about either. Republicans there are only worried about being first in the South.

1 It looks like that is going to be the case.

Are you following FHQ on TwitterGoogle+ and Facebook? Click on the links to join in.

Thursday, December 12, 2013

Fool Me Once, Shame on Me. Fool Me Twice...

Look, FHQ gets it: Florida has created a lifetime's worth of uncertainty for the presidential primary calendar (and the nomination process itself to some extent) over the last two cycles. But the reactions to the latest on the efforts by the Republican National Committee to tinker with the party's nomination process/rules ignore the current reality where Florida and 2016 intersect.

Perhaps, it is deserved. FHQ isn't here to defend Florida, but as of right now, the Sunshine state is not in a position to continue to be a "serial scofflaw", as Jason Linkins describes the state, much less have it assumed that Florida will once again throw a monkeywrench into the best laid plans of the parties and/or the infringe on the turf of the carve-out states, as Craig Robinson does.

The reality is that this super penalty is nothing new. The so-called Bennett rule -- named after former Ohio Republican chairman, Bob Bennett, who devised it -- has been codified in the RNC rules since Tampa. The only thing new based on the reporting that Peter Hamby at CNN did was to shed light on the mathematical problem that FHQ mentioned months ago. Basically, if a state has a small enough (pre-penalty) delegation, it could receive a lesser penalty than the 50% reduction that was on the books in 2012. Again, this was a very limited number of states. But there was some potential for the rules to be exploited; not keeping with the original intent of the rule (which was to provide some certainty to the front end of the calendar).

But that is the small states; not Florida.

The point is, political actors in Florida -- those in the state legislature, governor's mansion and the Republican Party of Florida -- saw those changes. After all, the infighting that produced those rules changes, including the Bennett rule, happened in their backyard; in Tampa. What was the reaction in Florida once the Bennett rule was added? Well, the state legislature very quickly moved to push the Florida primary back on the 2016 and future primary calendars during its 2013 session.

Unlike the 2008 and 2012 cycles, there is actually some certainty -- right now -- as to when the Florida presidential primary will be held. If the Republican Party of Florida tweaks its allocation rules, the primary will be on the first Tuesday in March. If the state party opts to continue with its tradition winner-take-all allocation, then it will be on the third Tuesday in March, the point on the calendar when it is apparently proposed that the proportionality requirement should expire. The 2016 Florida primary date hinges on the point on the calendar where the Florida delegation will not be penalized; the earliest unpenalized date. That, as FHQ noted, is dependent upon what combination of rules the Republican Party of Florida opts to utilize.

[And one other thing that FHQ would like to push back on is Robinson's description of the penalties that Florida faced in 2012. Yes, Florida broke both the timing and allocation rules. But the RNC only had one 50% penalty it could levy. The RNC rules did not provide for a double penalty scenario. That has been changed for 2016. There is the Bennett rule (9 delegate plus automatic delegates) penalty and a separate 50% penalty for states that do not comply with the provisions in the proportionality requirement. This rule was put in place in reaction to both Florida and Arizona in 2012. Both technically were double violators.]

There was ample motivation for Florida to have reacted this way; to provide certainty instead of uncertainty in this process for once. Some have argued that it was the rules change or more precisely the new, more draconian penalty. Others contend that Marco Rubio and his allies in the state advocated for the move with a potential Rubio run for the nomination in mind. This is likely not an either/or thing. Those two factors and a desire to play nice in 2016 because of them is as good an explanation as any for the move.

Could this change? Absolutely. The Florida legislature may change its mind in 2015 and reverse course, but such a change would have to make it through the governor to be enacted. No matter how the gubernatorial election goes in Florida in 2014, the sort of provocative primary movement that Florida made in 2008 and 2012 is not likely going to pass muster.

The Sunshine state is definitely part of the reason why the rules/penalties changes were made, but at this point -- in late 2013 -- it doesn't look like Florida is going to be the troublemaker it has recently been in the presidential nomination process.

No, at this point, FHQ would suggest looking at Michigan and Arizona.1 Both contests are currently positioned on the last Tuesday in February; a clear violation of the intended RNC rules. [It is unclear how either state will fare under the Democratic Party rules. The party has yet to officially begin its rules-making process, but past rules put both Arizona and Michigan on the wrong side of the penalty threshold.]

Again, maybe Florida deserves it simply for 2008 and 2012, but FHQ does not think Florida will be the one causing the trouble -- should any occur -- in 2016.

1 The recent change in North Carolina also means the Tar Heel state is vulnerable to the super penalty. However, FHQ has been told that will be taken care of. Recall that the provision anchoring the North Carolina primary to the South Carolina primary was added late to an omnibus elections bill. The addition was so last minute, that it was largely glossed over because of the importance placed on passing the whole elections bill. Those with reservations, then, didn't want to rock the boat and delay or derail the efforts to make changes (voter ID requirement, changes to early voting process) that the Republican majority in the North Carolina General Assembly wanted to push through before the legislature adjourned for the year.

It should also be noted that there is a direct line of communication between the RNC and the North Carolina General Assembly. State Representative David Lewis (R-53rd) is the national committeeman from the state and additionally is the chairman of the North Carolina House Elections Committee. [The other wrinkle here is that the amendment to the elections bill that changed the North Carolina primary date was added in the state Senate at the last minute.] FHQ is told by folks in the know here in North Carolina and in the RNC that this will be changed at some point next year. We shall see.

Are you following FHQ on TwitterGoogle+ and Facebook? Click on the links to join in.

Wednesday, December 11, 2013

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.


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.


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.

Are you following FHQ on TwitterGoogle+ and Facebook? Click on the links to join in.