Tuesday, June 7, 2011

Republican National Committeeman for Texas Warns of Penalties for March/Winner-Take-All Primary

See update at the conclusion of the post.

In a letter to Texas state legislators, Republican National Committeeman for Texas and General Counsel to the Republican National Committee, Bill Crocker, again warned of the sanctions Lone Star state Republicans are facing by holding a March 6 presidential primary.1 Under the rules of the Republican Party of Texas, there is a winner-take-all element to the allocation of delegates, thus potentially making Texas Republicans vulnerable to the penalties laid out in the Rules of the Republican Party (Here's a link to a summary memo of these specific rules.). But that isn't the point Mr. Crocker is making. He treats the Texas Republican rules regarding the allocation of delegates as strictly winner-take-all. That, however, is somewhat misleading and as a result Mr. Crocker overstates his case in the letter.

Here is that segment of the letter in question:

Under our present law, the Texas presidential primary must be held on the first Tuesday in March, which in 2012 will be March 6. The Rules of the Republican Party (the national party rules) provide that delegates to the 2012 Republican National Convention from a state which has a March primary, if bound by the results of that primary, must be allocated among the primary candidates in accordance with the results of the primary election "on a proportional basis." [Rule 15(b)]

The Rules of the RPT require national convention delegates from Texas to vote in accordance with the results of the Texas primary, and require allocation of delegates among the candidates on a basis which may not be considered proportional. Our delegates from a congressional district are allocated on a winner-take-all basis to the candidate who obtains more than 50% of the primary votes in that congressional district. Our at-large delegates are allocated on a winner-take-all basis to the candidate who obtains more than 50% of the primary vote in the state.

Now, Mr. Crocker is absolutely correct on a couple of counts. First, Sections 8 and 9 of the General Rules for All Conventions and Meetings from the Republican Party of Texas state essentially what Mr. Crocker has already stated: at-large delegates are allocated on a winner-take-all basis if one candidate wins more than 50% of the statewide vote in the Texas primary and congressional district delegates are allocated in a similar fashion on the district-level vote (win more than 50% of the district vote, receive all the delegates). He is also right that any Republican contest scheduled prior to April 1 must allocated delegates proportionally. What is misleading though, is that the rules are not explained fully. That proportionality requirement, as FHQ highlighted in our original write-up concerning the memo from the RNC (link above), is not quite so strenuous in its application as some have interpreted.

For starters, the only delegate allocation that the proportionality requirement applies to is the allocation of at-large delegates. The winner-take-all allocation of congressional district delegates is fine then. But let's take a closer look at how the Texas allocation rules square with the RNC rules. Is there a problem? More importantly, if there is a problem is it as dire as the picture Mr. Crocker is painting?

FHQ's reading of the situation is that Texas is largely compliant with the RNC's delegate selection rules for 2012. The only issue is that if a candidate receives 50% or more of the vote in the Texas presidential primary on March 6, the winner-take-all provision in the Texas plan will be triggered. Is there a problem? Yes, but will it crush the Republican Party of Texas in terms of penalties? Only if one candidate surpasses the 50% mark in the vote total.

How likely is that, though?

If Mitt Romney reels off a winning streak in the early states, sweeping Iowa, New Hampshire, Nevada and South Carolina (and perhaps Arizona, Florida, Michigan and Minnesota should those states hold non-compliant February contests), the field may have been winnowed down to the point that "Mitt is inevitable" reality becomes, well, inevitable. That might have the effect of making Texas and all the other March and later contests largely meaningless -- merely ratifying the decisions of the earlier states. The margins of victory for the inevitable nominee would rise and likely, as was the case for John McCain in 2008, above 50%. Could that happen? Sure, it is still early enough that that possibility is still on the table. But it isn't the only possibility and it may not even be the most likely possibility.

What's more likely, at least in FHQ's estimation, is that some other candidate or candidates emerge(s) as the alternative to Romney in those early state contests. In other words, the extent to which the race remains competitive once the presidential primary sequence reaches Texas and the other March 6 (Super Tuesday) states will determine the likelihood of one candidate receiving 50% of the vote statewide and all of the Lone Star state's at-large delegates. 2008 isn't the only guide, but in the most competitive Super Tuesday states three years ago -- the big delegate prizes on February 5 -- few featured candidates who crossed the 50% barrier. Texas will be a delegate treasure trove on March 6, and will thus attract a great deal of candidate and media attention. That doesn't guarantee that Texas will be competitive, but it lends itself to that conclusion. So, maybe there was a reason Texas voters weren't terribly excited about the idea of Governor Rick Perry running for president: they didn't want a favorite son to make Texas less competitive and possibly cost the state's Republican delegation half of its members.

At this juncture, FHQ would say that Texas is safe; not completely safe from sanctions, mind you, but safe relative to the doomsday scenario Mr. Crocker describes in his letter. Now, I want to be clear that I'm not trying to be hard on Mr. Crocker. Faced with a choice between completely safe with an April 1 primary or mostly safe where Texas is currently scheduled, you'd probably opt for the former if you are within the party elite. But as general counsel for the RNC, Mr. Crocker should be clear in laying out what potentially faces the state party.

Update: As Mystery Politico rightly points out in the comments section below, there is a minimum threshold that a state party can set whereby all the delegates from a state are allocated on a winner-take-all basis (see Section III.v in the memo linked above). As long as a state sets a minimum threshold no lower than 50%, the proportionality requirement is completely negated. If a state, then, sets a 50% threshold and a candidate receives 50% of the vote, that candidate could walk away with all of the delegates from the state.

...even in a contest prior to April 1. As I said in the comments, I'm as guilty as Bill Crocker in overstating the severity of the problem. There is no problem. Texas is fine with their plan as it currently stands. What's most troubling is that the general counsel for the RNC did not know this.

1 Mr. Crocker made a similar point in stressing the importance of a shift to April in testimony to the House Defense and Veterans' Affairs Committee concerning HB 111 this past April.


MysteryPolitico said...

I'm confused. In your Feb. 27th blog post that you link to here, you write the following in your summary of the RNC rules:

"3. A candidate can still receive all the delegates from a state if that candidate surpasses a minimum threshold set by the state. That threshold can be no lower than 50%. A candidate could, then, clear the 50% mark statewide and take all the delegates."

Isn't that exactly what Texas does? Awards all of its delegates to the statewide winner only if the the winner clears the 50% mark? Then how is it breaking the rules?

Josh Putnam said...

That's a good question, MP. There are a handful of states that have a trigger where if a candidate receives half the vote they get half of all of the delegates. Texas is not that way, however. RPT draws a distinction, as the RNC rules do, between at-large and congressional district delegates. On the latter, the RNC delegate selection rules provide some leeway to the states to utilize various means of allocating those delegates. If a candidate wins the district with half the votes (even if that contest is prior to April 1), that candidate can receive all of the delegates.

But it is different with the at-large delegates. The RNC requires proportional allocation for all pre-April 1 contests and Texas will be fine so long as no candidate receives half the statewide vote and triggers the winner-take-all provision.

Texas, then, will be in violation if and only if one candidate clears that 50% barrier in the statewide vote.

The bottom line is that there are several flavors of winner-take-all. I'm working on a project now along these lines and roughly a third of the Republican primary states in 2008 had straight up winner-take-all rules, a third split the at-large and congressional district delegates with various WTA rules and the remaining third were proportional. Texas is in that middle category.

MysteryPolitico said...

OK, you write:

"But it is different with the at-large delegates. The RNC requires proportional allocation for all pre-April 1 contests..."

But in that Feb. 27th post summarizing the RNC rules, you wrote:

"A candidate can still receive all the delegates from a state if that candidate surpasses a minimum threshold set by the state. That threshold can be no lower than 50%. A candidate could, then, clear the 50% mark statewide and take all the delegates. If Utah had operated under these rules in 2008, Mitt Romney, by virtue of having won 89% of the vote, could have taken all of the Beehive state's delegates despite the primary having been in February (assuming Utah used the threshold rule)."

In that paragraph, you don't seem to just be referring to the CD delegates, but to the at-large delegates as well. You suggest that even under 2012 rules, Utah could set up its rules so that Mitt Romney could win *all* of the state's delegates if he gets more than 50% of the vote. You seemed to suggest that this even applied to at-large delegates back in February, but maybe I'm misreading that?

Anonymous said...

The real question may be the bonus delegates states receive for various marks. A lot of states could try to take the 10 statewide delegates and divide them proportionaly and try to take the bonus delegates and create some kind of WTA allocation.

Also when these plans are submitted and reviewed it seems that there could be some kind of compromise between the states and the Republican party.

Also McCain was a weak candidate in 2012. If it comes down to a Romney-Palin match then I could see
Palin taking more than 50%.

Josh Putnam said...

Ha! Bear with me. I slightly misread your original point.

Yes, good catch. There is a winner-take-all minimum threshold in that definition of proportionality as well. Point v in that memo clearly negates the proportionality requirement altogether. That, in turn, means that I am just as guilty as Bill Crocker in terms of overstating severity of the problem.

In this case there is no problem (at least not given what the RNC sent to me). And to my knowledge this is the most definitive rules summary out there. The changes from the Temporary Delegate Selection Committee recommendations do not appear in the Rules of the Republican Party (from the 2008 convention).

Give me a minute and I'll get an update up.

Josh Putnam said...

Those bonus delegates are tacked onto the at-large total and are thus open to the proportionality requirement unless a state sets a minimum threshold that is then exceeded by one of the candidates.

You raise an interesting point about the review process. The Republican Party is not like the Democratic Party. The Republicans require submission of a plan by October 1, but the Democrats require submission of a plan by May 2 and will review and approve or suggest/require changes by the end of the year. In other words, the GOP doesn't have an approval process per se.

And even if they did, with all these various trigger mechanisms, it strikes me that they could not completely review the process until it is complete. They have to wait to see if the state allocation actually violates the rules. That could really complicate things if there is a competitive two candidate race. The total delegate count could be in flux through March. There's a fun wrinkle to consider.