Friday, December 16, 2011

Deal to Conditionally Split April Texas Primaries Emerges in Ongoing Talks to Resolve Primary Date Dispute

Nolan Hicks at the San Antonio Express-News is reporting that multiple sources have confirmed that there are ongoing discussions about a deal moving a consolidated Texas primary -- including the presidential primary -- from March 6 to April 3. Furthermore, congressional, state legislative and other races awaiting new district boundaries would have primaries on that April date dependent upon whether the time between the primary and a court decision on the lines allowed enough time for implementation. Without the necessary time, those primary elections would be moved back to a late May date.

There are a host of interesting questions here, but FHQ will focus on the presidential primary aspect of this from which two main questions arise. First of all, this opening brings back to the fore the question discussed here yesterday: Would a shift  to a post-April 1 primary date cause the Republican Party of Texas to reconsider its method of delegate allocation -- switching back to a conditional winner-take-all system based on both the statewide results and the congressional district results from a proportional allocation?1 On that point, FHQ actually got some interesting pushback from Chris Elam, the Republican Party of Texas communications director. In a series of Twitter exchanges -- best summed up here -- Mr. Elam made clear to FHQ that the current RPT delegate selection rules were submitted to the RNC before the October 1 deadline laid out in the Rules of the Republican Party, were approved and are set in stone now that that point has passed. Asked about any desire within the RPT to change back to winner-take-all rules, Mr. Elam said that it was premature to speak of such a change given that no decision has been made by the courts -- nor has a deal been cut between the two state parties -- and deferred to the unanimous vote on the rules change at the State Republican Executive Committee meeting on October 1.

There is nothing wrong with that explanation, but FHQ still detects a bit of wiggle room for the RPT on this issue. Let's look at those RNC rules a little bit more closely. Rule 15.c.12:

No delegates or alternate delegates shall be elected, selected, allocated, or bound pursuant to any Republican Party rule of a state or state law which materially changes the manner of electing, selecting, allocating, or binding delegates or alternate delegates or the date upon which such state Republican Party holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention if such changes were adopted or made effective after October 1 of the year before the year in which the national convention is to be held. Where it is not possible for a state Republican Party to certify the manner and the date upon which it holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention in effect in that state on the date and in the manner provided in paragraph (e) of this rule, the process for holding the presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention shall be conducted in the same manner and held upon the same date as was used for the immediately preceding national convention.
There are few things there. One is that quite a few states made decisions to set primary or caucus dates after October 1. The four carve out states -- Iowa, New Hampshire, Nevada and South Carolina -- and just yesterday, Ohio, all set dates following the deadline codified in the rules. Rule 15.e goes on to describe the possibility of a waiver being granted for states whose parties cannot -- for whatever reason -- meet that deadline. That FHQ has heard, there has been no talk of any of those five states asking for or being granted a waiver on those grounds. [That doesn't mean there wasn't one.] The four carve out states may have been granted such a waiver or simply just blamed the Florida move for setting up a post-October 1 domino effect. In Ohio, the Republican Party shrewdly included a conditional provision in their RNC-sanctioned rules; adding a proportionality element to the at-large delegate allocation should the primary be scheduled before April 1. In the event that the redistricting dispute in the state left the primary date unsettled or forced it to a post-April 1 date, the rules would revert to winner-take-all statewide-congressional district as they had been in 2008.

Again, if RPT has the desire to change the delegate allocation rules, could it not argue before the RNC that the decision to shift to a post-April 1 date was triggered by court action that was out of the state party's hands to a great degree? In other words, could the argument successfully be made that the decision-making pre-October 1 would have been different had the party known it was going to have a post-April 1 presidential primary? Possibly, but it could also be that such a move is more trouble than it's worth and that Texas National Committeeman and RNC legal counsel, Bill Crocker, may not want to push too hard on that issue. [The counterargument is that Mr. Crocker would be well-positioned to help push such a change through.] Much of that depends on whether the desire is there within the RPT to make that happen. It's a big if.

...but that brings us to...

The second question has to do with how Texas Governor Rick Perry fits into all of this. It is apparent that the Perry campaign wants the primary as early as possible. It is also apparent that the Republican Party of Texas wants to follow the rules from the RNC.  But it is still perplexing to FHQ that any change was made at all to the Texas delegate selection rules. The rules utilized by the state party in 2008 would have been compliant with the new RNC rules before or after April 1. Again, the 2008 rules were winner-take-all by congressional district and statewide conditional on a candidate receiving over 50% of the vote. That is something that is completely within the letter of the law in the new RNC rules. Period.

So why the change? That is a very interesting question. If we assume -- as appears to be the case with the early primary date preference -- that the Perry campaign had some motivation (influence?) over the process of setting/maintaining the primary date, then was there some motivation to switch to proportional allocation as well?2 The San Antonio Express-News article indicates that there is some pressure on RPT chair, Steve Munisteri, to keep the primary in March, so it is not a stretch to consider that the Perry camp put similar pressure on the party to change the rules.

But why? If the Perry folks are banking on an early Texas primary, why dilute the influence of the state by making the results proportional when that is not required? Why not leave the winner-take-all element in the plan in order to run up the score in the delegate count? It is all curious.

Now sure, the extent to which the Perry campaign was involved in all of this is an unknown and this is all quite speculative. However, it is undeniable that the Republican Party of Texas did not have to alter its delegate selection rules to comply with the RNC rules changes on proportionality. Something drove that decision and if it was even partially due to the Perry campaign, it is a counterintuitive calculation on their part with a delegate count as the backdrop.

Hat tip to Michael Li at for the news of the deal.

1 Yes, that would require those newly drawn congressional district boundaries, but recall that that portion of the plan -- the actual assignment of delegates based on numbers disaggregated into the new districts -- does not happen until the state convention. That isn't an issue, then.

2 It is worth noting that Perry signed the bill that dealt with the primary -- SB 100 -- before he got into the race. The bill maintaining the March 6 primary date was signed in June before Perry entered the presidential race in August.

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