Wednesday, November 12, 2008

A Check on Frontloading from the Courts?

Now here is an interesting twist to the Florida primary debacle of 2008 and it has implication for the future of frontloading.

The Case: Ausman v. Browning

The Argument: The Florida legislature violated the national Democratic Party's right to free speech when the legislature set the Sunshine state's primary for January 29, 2008. In other words, the national party was unable to choose its nominee in Florida according to the Florida Delegate Selection plan approved by the Rules and Bylaws Committee. [Yeah, remember them?]

This is fairly significant (...whether it is getting much press or not). If there is one thing we know about the courts' involvement in these sorts of disputes, it is that they typically side with the parties. A recent example of this was when the within-casino caucus sites were challenged by the Clinton campaign before the Nevada caucuses last January. The courts yielded to the parties (and the pre-approved delegate selection plan) in that instance.

One byproduct of the plaintiff winning this case (...and any subsequent appeals) is that, if anything, states, and the actors setting the date on which their delegate selection event is held within them, would seemingly have to adhere to the delegate selection plans that are usually due in to the national party by the end of the summer before a new election cycle begins. For 2008, both national parties had September deadlines. In Florida and Michigan in 2008, those plans were violated when their legislatures shifted up their primary contests.

The bottom line is that the national parties would gain a bit more power in this process based on the approval power they would (and do, for that matter) hold over states' delegate selection plans. So, if the courts validate these plans from each state, they essentially become something similar to a binding contract on allocating delegates. And the date on which a primary or caucus is held is a vital component of those plans.

Does that prevent rogue states from popping up? No, but it does give the national party some potential legal standing to challenge them in court if it were to come to that. This case reaches "one to watch " status here at FHQ.


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3 comments:

Robert said...

Very interesting. Maybe we can get back to a shortened primary season with the parties more in control.

Josh Putnam said...

I think this more or less forces the state parties to opt for a "within window" date for their primaries or caucuses. The most likely scenario is that future calendars look a lot like 2008's minus Florida and Michigan.

But once again, this highlights the potential for a divide between the state parties and the state governments. It is a lose-lose situation for a party that is the minor party in state or happens to be on the wrong end of a trend against them in a competitive state.

They get to choose from:
1) The party in control goes rogue (as was the case in Florida in 2008) and puts one party at odds with its national party rules.

2) They opt for a caucus over a primary. This gets around the complications from the other party (We saw this in Nebraska in 2008. The Democrats chose to hold a caucus for the first time in the modern era.). However, it comes at a cost. The party (not the state) would be stuck with the bill and there would potentially be a discussion as to the representation gap that arises because of the switch. And that's before you even factor in the negative view some within the Democratic Party have of caucuses after 2008.

There really are some interesting possible implications from this case.

Robert said...

Part of the negative consequences of the caucuses by Democrats is that the frontrunner did not win. A counterargument is that caucuses help energize the grassroots allowing the party to better organize and change the electoral map. It will bevery difficult for Democrats to argue between now and 2012 that the caucuses hurt their chances in November.