Tuesday, January 31, 2012

A Winner-Take-All Primary for Texas Republicans?

In a run through the future stops on the presidential primary calendar late last week, Jake Tapper of ABC News wondered whether Texas Republicans -- having been forced by the courts to shift back the presidential primary past April 1 in the Lone Star state -- would entertain the idea of switching from proportional to winner-take-all allocation of their 155 delegates.

FHQ wrote about this in December when courts pushed Texas back to April and was told pretty much the same thing that Republican Party of Texas Communications Director Chris Elam told Aman Betheja of the Fort Worth Star-Telegram on Friday. Basically, RPT is not changing its delegate allocation rules. In the month since I spoke with RPT about the issue, though, the argument has evolved.   In December, FHQ was -- correctly, I might add -- told that the rules were final because the RNC rules require state parties to have set delegate selection rules by October 1. I countered that Ohio had changed -- or at least allowed a trigger mechanism in their rules that switched their delegate selection method dependent upon the date the primary was held -- and was informed that the Ohio condition was part of the rules package submitted by Ohio to the RNC prior to October 1. And of course, Iowa, New Hampshire, Nevada and South Carolina all settled on their plans -- the dates in particular -- after October 1. All pointed to some wiggle room in the national party rules that may allow Texas Republicans -- under unusual circumstances -- to change back to the winner-take-all allocation method the party has traditionally used.

Again, the answer from RPT in December was that the rules were set.

But now, instead of leaning on the RNC deadline as in December, RPT has shifted to a Voting Rights Act/preclearance argument for fending off inquiries about switching back to winner-take-all rules. FHQ must confess that this one is new to me. DOJ has the final say on redistricting plans in certain states and districts under Section 5 of the Voting Rights Act, but that authority stretching into delegate selection rules is something I haven't encountered outside of the past use of the unit rule (which has been outlawed in both national parties). This implies that Texas Republicans should have had to have received preclearance from the Justice Department for the change back in October from winner-take-all to proportional; something FHQ never heard about if it happened. [And that isn't to suggest that it did not.] But it seems odd that DOJ would have preclear a change back to a system that has been in place on the Republican side in Texas up until this cycle; October 2011 to be exact.

But that is a minor point in the grand scheme of things. Texas Republicans won't be changing back to winner-take-all rules. And it has very little to do with Section 5. It has more to do with the the seeming lack of desire to make the change within the state party. And even if independent of the state party, a Republican in Texas challenged the allocation method in a reverse of what we are witnessing in Florida with its adherence to winner-take-all allocation in a timeframe reserved for at least partially proportional allocation, that case would stand very little chance of going anywhere. The big issue in the Florida situation -- if the system there were to be challenged -- is that the state party is breaking a national party rule; that winner-take-all allocation instead of some "proportional" allocation is illegal.

But in a similar Texas situation there would be no similar rules-breaking. The RNC rules prohibit straight winner-take-all allocation of all of a states delegates before April 1, but that doesn't mean that it is against the rules if state parties after that point opt for a proportional plan, a winner-take-all plan or something in between. No, the RNC leaves it up to the states after March to decide on their own method of allocation in the way the RNC used to do for all states throughout the whole calendar. That would not be a winning argument. The state, acting in accordance with the RNC rules, should be made to change its method of delegate allocation because someone within the state (of Texas in this scenario) challenges it. The RNC has already seemingly indicated that challenges -- even in Florida's case -- were likely to go nowhere. And if a challenge to get a state to actually follow the rules is stuck in neutral, then a plan to force a state in full compliance with the rules to alter its delegate selection plan is going to go in reverse.

Texas Republicans will have proportional allocation whether the primary is on April 3 or some other later date.

UPDATE: Richard Winger of Ballot Access News sent along news that the courts (Larouche v. Fowler, 1999) have ruled in the past that Section 5 of the Voting Rights Act is not applicable in cases of party rules changes for delegate allocation.

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