Monday, February 7, 2011

Kentucky Moving to August?

I'm not sure how this one ran so far beneath my radar, but it does make for an interesting discussion on a Monday morning on a couple of levels.

First of all, a bill (SB 4) was introduced and passed in the Kentucky Senate in January proposing a move of the Bluegrass state's primary -- both the presidential primary and those for state and local offices -- from the first Tuesday after the third Monday in May to the first Tuesday after the first Monday in August. The stated intent of the bill is to free up the legislature to focus on their work -- at least the controversial work -- without fear of being challenged in a primary by an opponent who entered the race because of a vote on a contentious piece of legislation. The filing deadline is in January for the May primary and many Kentucky legislators apparently wait until after the filing deadline and know who, if anyone, they will be facing off against in May before addressing potentially divisive legislation. And with the legislative session ending in March, the overall efficiency of activity in the legislature can be negatively affected.

But moving the primary back is an interesting way of dealing with this problem. The simpler solution, it seems, would be to shift the filing deadline back to a point that occurs prior to the start of the legislative session instead of trying to incur the wrath of the national parties with a presidential primary date that is in violation of both parties' rules; not for being too early, but for being too late. An August Kentucky primary would occur in 2012 on August 7, according to the provisions of this bill, just less than three weeks before the opening of the Republican National Convention on August 27.

Is this even doable given the national party rules on the window of time in which primaries and caucuses can be held? Well, there are a couple of ways of looking at that. The first concerns the parameters of the window rule and the other revolves around the structural and political constraints internal and external to Kentucky.

The main question that Richard Winger raises at Ballot Access News is one that came up here at FHQ last week in our discussion of the potential bill to move the District of Columbia primary elections -- including the presidential primary possibly -- to July. Namely, why has the back end of the window not been adjusted since 2004 as the national conventions have crept into September, later than the traditional end of July (for the party out of the White House) and the end of August (for the party in the White House)? This is a valid point. I'll grant the argument that the parties need some time to shift from the primary phase to the general election phase of the presidential election and that there may be some logistical concerns that need to be addressed in that intervening period between the close of primary season and the conventions that formally nominate presidential candidates. What is not clear to me is that the burden on the parties has in any way changed since 2004. In other words, has it become more burdensome to accomplish those logistical tasks in the period from the second week in June to the beginning of the conventions -- now in late August instead of late July?

There is no evidence that I could muster that would point to the necessity of essentially an extra month to accomplish those matters. One could highlight the Florida and Michigan problems from the 2008 cycle on the Democratic side or the issues Mike Huckabee had about the caucus results (and challenges to primary and caucus results and subsequent delegate disputes more generally) in Washington in 2008 on the Republican side. Those are, however, issues that were dealt with either before the end of the primary process (The Rules and Bylaws Committee met the weekend before the last round of contests to deal with Florida and Michigan.) or in the regular course of the primary/caucus winnowing of candidates (The voters spoke and made McCain the nominee and any argument from Huckabee as to the Arizona senator's legitimacy as the party's nominee because of what had happened in Washington moot.). But that doesn't change the fact that there are challenges (see the 2012 Democratic Delegate Selection Rules, section 20 for a look at the number of ways things can be challenged and the amount of time it could take to deal with them) and other logistical issues that arise and need to be taken care of during the period between the end of the primary process and before the beginning of the conventions.

But that period does not probably need to be as long as it was in 2008. There's nothing to suggest that it there is any greater frequency of issues which in turn necessitates an extra month for this period. Why not shift the back end of the window back to correspond with the backward shift the conventions have now taken?

But that doesn't really address the potential Kentucky move. It merely suggests that the national parties want some time between the end of the nominating contests and the conventions. Would the three weeks between the proposed August Kentucky primary in 2012 and the Republican convention be enough time? To Kentucky, probably. It is unlikely that there would be issues with the results. One candidate likely would have consolidated enough delegates by that point that Kentucky would not be decisive in the nomination and a court challenge by another candidate would be frivolous at best.

That point about court challenges (or any other problems) underlines why the national parties would have an issue with such a small window of time between the end of contests and a convention. Sure, even the national parties would view that scenario as far-fetched, but even they plan for worst-case scenarios. And even if that worst-case scenario did not happen, the parties have a vested interest in putting as much space between the primary phase of the competition and the general election phase as possible. First of all, if the primary process has been divisive, another contest simply serves as a means of reopening that wound when the party would rather be focusing on unifying the party ahead of its convention. Absent divisiveness, one could also foresee a situation where the parties would not want such a late contest. Let's look at the 2008 Republican nomination race for an illustration of this, but assume there was an August Kentucky primary during that cycle. McCain had wrapped up the nomination as of the first week in March. However, the thing that marked that final stretch of contests on the Republican side was not how Romney and Huckabee -- two candidates who had withdrawn from the race -- were doing, but how much support Ron Paul continued to get into the June contests. Of the final nine contests for the Republican nomination, Paul received double digit support (an average of 17%) in five. Even if Paul wasn't a serious contender for the nomination, that is a significant protest vote; one that no party would want less than three weeks before a convention.

Again, the parties want a transitional period between the two phases of the campaign, but there is nothing that would point toward a need for that period to be expanded or that the back end of the window should not be adjusted due to convention creep. But neither party would want a late contest like what Kentucky is proposing.


That first area of discussion ended up with a point about the external pressures Kentucky is getting (or will potentially get if this bill becomes law) from the national parties, but that is only one piece of the structural/political puzzle this primary date shift makes up. What other considerations are involved?

At first glance, the Kentucky bill seems like a more institutionally crafty way of doing what HB 1057 in Oklahoma seeks to accomplish: forcing the state parties to take on funding of presidential nominating contests. If the presidential primary is too late, the state parties will have to pick up the bill for a contest of a rules-compliant date. More insidiously, that would be a means of more than likely forcing a caucus with far less participation, but more party control (see Meinke et al. 2006). In a scenario where Kentucky had an open or semi-open primary that would make more sense. It would be a means of closing off the process and limiting who could participate. But Kentucky's primaries are already closed.

There has also been some more widespread discussion this cycle among other states about costs savings and the presidential primaries -- moving a separate presidential primary back in line with those for state and local offices (see California, New Jersey) or eliminating presidential primaries altogether (see Kansas, Washington). That is not the case in Kentucky. There is nothing to be gained financially for the state from such a move. Removing the presidential line from the ballot decreases the burden little if any since the presidential primary and those primaries for state and local offices are held concurrently as is.

While the above structural constraints -- outside of the national party rules -- may serve as no hinderance to the movement of this bill through the Kentucky legislature, the political roadblocks are much greater. First of all, this bill was proposed in and passed by the Republican-controlled state Senate and though I don't know for sure -- the Kentucky legislature's web site was less than forthcoming about who voted for and against this bill -- I suspect that the 21-14 vote to pass it was largely along party lines. The Republicans have a 22-15 advantage in the Senate with one independent. The state House and beyond that chamber, the governor's mansion, are controlled by Democrats, Democrats who are likely to get some pressure from the DNC to ignore or vote down this legislation. The Democratic Delegate Selection Rules for 2012 (section 20.C.7) call for Democrats in states in situations such as these to take "all provable and positive steps" to keep the state's Democratic delegate selection compliant with the rules. If the House doesn't do that, Governor Beshear likely will.

But why enter this scenario in the first place? Why not just shift the filing deadline back? That's a much easier route. [Yes, there are implications for an earlier filing deadline, but they have to be less onerous than those taken on in the event that Kentucky's presidential primary is moved back and out of compliance with the national party rules.]

Hat tip to Richard Winger over at Ballot Access News for sending this Kentucky information my way.

Are you following FHQ on Twitter and/or Facebook? Click on the links to join in.

No comments: