Thursday, April 19, 2012

In Missouri, A Bill to Bind Delegates Based on the Presidential Primary; Not the Caucus

Back at the end of March, Missouri state House member, Tom Flanigan (R-127th), introduced HB 2031. The intent of the legislation is to bind the delegates to the national conventions based on the results of the state-funded presidential primary.1 Now, as one will recall, the Missouri presidential primary was only binding on the Democratic nomination race, but not on the Republican side. Since the Republican-controlled Missouri legislature could not agree on a date to which the presidential primary should be moved, the presidential primary remained in February; a date that was non-compliant with both national parties' delegate selection rules.2

The Missouri Democratic Party petitioned the DNC for and received a waiver to proceed with the February primary.3 Republicans in the Show Me state, however, had no recourse. With no waiver process in place on the Republican side and with the decision to remain in February resting [mostly] with Republicans in the state legislature, the Missouri Republican Party had a choice to make between sticking with the non-compliant February presidential primary -- which meant losing 50% of the delegation -- or shifting the the delegate selection and allocation to a caucus/convention system. The state party chose the latter, and that has not sat well at least some Missouri Republicans ever since.

Enter HB 2031. The language is simple (sections in bold are bill-based additions to code):
115.755. 1. A statewide presidential preference primary shall be held on the first Tuesday after the first Monday in February of each presidential election year.             
2. The results of the presidential preference primary conducted under this section shall bind each party delegate on a first vote at the national party convention, and shall take precedence over any result of any presidential preference caucus.
However, that may be all that is simple about this legislation (...and why it is probably likely not to pass). Obviously, if this legislation were to pass and be signed into law it would create a conflict between the state government and the state party over the nature of the delegate selection/allocation process. And before FHQ gets too far into this, it should be noted that there are plenty of examples of state laws that dictate the delegate selection process. Massachusetts, New Hampshire and North Carolina, for instance, not only prescribe a threshold past which candidates receive delegates but also that the overall allocation be proportional to the vote in the primary election. The Missouri legislation lacks that specificity. That is not a problem in and of itself, but it does -- to FHQ's eyes anyway -- indicate the kind of ad hoc nature of this bill.

What makes such laws workable in Massachusetts or New Hampshire or North Carolina is that the state parties are fine with the delegate selection/allocation guidelines laid forth therein. There is no conflict. But if there was, the state party could/would take the state to court. And time and time again, courts have sided with the parties (see Tashjian and/or California Democratic Party v. Jones). The nomination process, after all, is a party function and the courts have established and reasserted the precedent that gives parties first amendment rights of free association that affects not only participation but other rules of nomination as well. While the three states above, then, have no internal conflict -- between state government laws and party guidelines -- Missouri would have such a conflict in the event that this legislation became law.

The Missouri Republican Party has been pretty clear about wanting to avoid sanctions from the RNC. That was the point of the -- from their vantage point -- temporary switch to a caucus/convention system for delegate allocation in 2012. The Republican-controlled legislature, on the other hand, could not decide what to do with the primary once the original to-March bill was vetoed. Neither Republican caucus -- in the House or Senate -- could come to terms on moving the primary back, keeping it where it was or as a last resort, canceling it for 2012 altogether. And if FHQ had to bet on the outcome of this new bill to bind the delegates based on the February 7 primary, I would wager on it getting bogged down somewhere along the line in the legislature.

Time is short anyway. Missouri Republican Party district-level conventions are this weekend and the state convention is June 2. On top of that, the bill was just referred to committee on April 18 and the legislative session is due to expire on May 18.

To quote George Costanza: "Prognosis Negative."

1 The bill also corrects a contradiction in the election codes that refers to the presidential primary on the first Tuesday after the first Monday in March. That section was not altered in the 2002 legislation that moved the presidential primary from March to the first Tuesday after the first Monday in February for the 2004 cycle.

2 The legislature did pass legislation to move the primary back to March, but that legislation was vetoed by Governor Jay Nixon (D) because it contained a provision that would have stripped the governor of some of his/her appointment power (in the event of a vacancy to statewide office).

3 The argument for the waiver was that the primary being scheduled in February was a matter that was out of the hands of Missouri Democrats -- both the party and the Democratic members of the legislature. The national party's decision was made that much easier by the fact that the Democratic nomination race was not competitive. In other words, the fallout from such a decision did not clearly benefit one candidate over another. For a situation where competition mattered in such decision-making, see the Florida example from 2008.

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