Monday, April 22, 2013

2016 RNC Rules: A Loophole and Another Layer for Would-Be Rogue States to Consider

Last week, FHQ examined more closely the so-called super penalty that is now a part of the Republican National Committee presidential delegate selection rules for 2016. That sanction is specific to states that violate the timing rules -- when a state can hold its delegate selection event -- and would reduce the delegation size of any state holding a primary or caucus before the final Tuesday in February  to twelve delegates. The point of the exercise was to show the degree to which the new restriction seemingly tamps down on would-be rogue states. It turns the knob up on the penalty on large and/or willing (and able) states and significantly whittles down the list of small states that may also want to crash the early calendar party.

Of course, the RNC rules assume that states willing and able to move up at all costs will remain mostly stationary and will not be proactive as 2016 approaches. In particular, the rules assume that 1) Republicans in especially Arizona, Florida and Michigan will find the super penalty a significant barrier to primary dates earlier than February 23, 2016 and 2) each of those states will maintain their traditional (or if not that, current) methods of delegate allocation. With regard to the former, that may be. For those states, a penalty-induced reduction to twelve delegates is going to translate to a greater than 75% penalty. Still, it will be up to actors in each state to determine whether that penalty hurts their respective states more than an earlier-than-February-23 primary would help. The RNC is betting that that will be a sufficient penalty. [FHQ tends to agree, but it is an open question from our vantage point here in 2013.]

Yet, there is some recourse for all three usual suspects (and others, if it comes to that). As FHQ has mentioned previously, the timing rules are but one area in which the RNC levies penalties. The other is in the area of delegate allocation. As the rules stand now, there is no proportionality requirement for contests held prior to April 1 as was the case in 2012. The "may/shall" question may or may not be addressed at future meetings of the RNC.1 The calculus would be different for both the RNC and states, but if "may" is reverted to "shall" at some point, and the proportionality requirement is reaffirmed, then the door is still left open to states to skirt, or perhaps more appropriately, game the rules.

Obviously, if the there is no proportionality requirement, then the process reverts to what it was in 2008: states determine how they want to allocate their apportioned delegates regardless of the what-would-then-be meaningless penalties discussed in Rule 17.

But if there is a proportionality requirement, that 50% penalty for using non-compliant methods of allocating delegates is back on the table. The assumption within the RNC is that Arizona and Michigan could stay on February 23 -- where both states' primaries are currently scheduled according to their respective state laws -- but if they maintain their current methods of delegate allocation would be docked 50% of their delegation. That serves as a pseudo-penalty for holding a delegate selection event prior to March 1 (the first Tuesday in March in 2016). In other words, if Arizona, Michigan and also Florida want an early primary date and do not also mind a 50% penalty -- a penalty that has not proven to be a deterrent to any of those states over the course of the last two presidential election cycles -- then each state has a landing place somewhere in the week prior to March 1, 2016.2

But that 50% penalty would only be in place if those three states with a history of violations maintained non-compliant, winner-take-all methods of delegate allocation; not because they were "too early". And if you have not noticed the flaw above, let FHQ point out that under the proportionality guidance that the RNC provided in 2011 and would/will likely extend to 2016 if the proportionality requirement is reinstituted, Michigan would be rules-compliant. Well, Michigan would be rules-compliant if it utilizes the original delegate selection plan it put in place for the allocation of a full, unpenalized delegation. That is, Great Lakes state Republicans would allocate congressional district delegates in a winner-take-all fashion dependent upon who won each congressional district and the remaining at-large delegates would be proportionally allocated based on the statewide results (to candidates who surpass a 15% of the statewide vote threshold).

If that is the plan Michigan Republicans use in 2016 and the primary remains on February 23, then Michigan would face no delegate reduction. Technically, Michigan would violate Rule 16 (no contest prior to March 1), but not "qualify" for the sanction in Rule 17 (timing penalty assessed to states with contests before the last Tuesday in February).

What's interesting is that Arizona, Florida and other states could follow suit. But, focusing on Arizona and Florida, a change could be made to the method of delegate allocation, and the two states could still come out in better positions relative to their  respective 2012 allocations. What FHQ is driving at here is that Arizona and Florida could make a change from a true winner-take-all method to one of the several proportional options the RNC allows and potentially still not lose any influence.


Well, a transition from a true winner-take-all allocation to a true proportional allocation is likely giving away too much; leaving too much to chance. If there is a runaway frontrunner, then it is not likely to make much difference. However, if a race is hypothetically more competitive, then a switch from winner-take-all to proportional is unnecessarily injurious in terms of the delegate advantage the state may provide the ultimate winner.

The question, then, given the combination of rules above, is whether a state such as Arizona or Florida could make a switch from a true winner-take-all system to proportional and still come out ahead.

To best highlight this we can reallocate the 2012 delegates -- unsanctioned -- and look at the difference in the delegate margins between candidates/across methods if any. This simulates a situation where either or both of the states in question could modify their delegate allocation method to avoid any sanction from the national party, even with a pre-March 1 date. To reiterate a point FHQ made ad nauseum during 2011-2012, the lowest threshold for achieving proportionality in the eyes of the RNC is the method described above: winner-take-all by congressional district and (conditionally) proportional statewide.3

Recall that Mitt Romney won both Arizona and Florida in 2012 and claimed all 29 and 50 delegates from them, respectively. In other words, the former Massachusetts governor and eventual Republican nominee left those states with either a +29 or +50 delegate margin. Those are our baselines for comparison. If Florida and Arizona were winner-take-all by congressional district, but proportional in terms of the statewide delegates (and assuming 2016 rules), both states would have potentially doubled their delegation sizes, and/but have put more delegates on the table for candidates other than the winner.

In Arizona, 58 total delegates would have been at stake. That is 27 congressional district delegates, 28 at-large delegates and 3 automatic (party) delegates. Romney won all eight congressional districts.4 Additionally, he carried over 52% of the vote among the three candidates who cleared the 15% threshold. [The others over 15% were Newt Gingrich and Rick Santorum.] That would have meant 24 congressional district delegates and 15 proportionally-allocated at-large delegates for Romney. Santorum would have netted 8 at-large delegates and Gingrich would have pulled in 5.5 With 39 total delegates, Romney would have been 31 delegates clear of his next closest rival; an advantage of two delegates more than he left the state with under the sanctioned, winner-take-all rules in 2012.

And in Florida?

Instead of a penalized total of delegates set at 50 under the winner-take-all rules, Florida would have had a total of 99 delegates at stake if Sunshine state Republicans had been compliant with the RNC rules on "proportional" delegate allocation. Encompassed in that total would have been 81 congressional district delegates, 15 at-large delegates and 3 automatic (party) delegates. In this scenario, Romney won 22 of 25 congressional districts and 59% of the statewide vote (among the two candidates who cleared 15%).6 The former governor, then, would have ended up with 66 congressional district delegates and 9 at-large delegates (75 total delegates). Newt Gingrich's second place finish in the January 31 primary would have meant 6 at-large delegates, and by virtue of having won three congressional districts, 9 additional congressional district delegates (15 total delegates). That leaves Romney +60 over his nearest competitor; a gain of ten delegates over the cushion he had coming out of the state under straight winner-take-all rules in 2012.7

In both instances -- Arizona and Florida -- the winner came out better under revised and compliant rules than under a non-compliant and penalized delegate allocation method.

Now, caveats abound in this simulation. Sure, neither state lost any influence (as measured by the delegate margin it provided the winner under the assumptions of the simulation) and in the process did not also lose any delegates. However, if the rules had been different, candidate strategy surely would have been adapted accordingly. Santorum may have opted to spend some time and resources in Arizona as opposed to focusing everything on the Michigan primary the same date (after non-binding victories elsewhere earlier in the month). Also, Gingrich could have pulled some resources from Florida and redistributed them both outside the state in preparation for subsequent contests and/or on a handful of additional Florida congressional districts where he may have been more competitive and/or could have won.

On the states' side of the equation -- or their attempts to maximize their influence in the context of the nomination process -- this does add an additional layer to the 2016 calculus. There is a new tradeoff that would-be rogue (but not so rogue in the eye of the RNC penalties) would have to or could consider. On the one hand, why lose delegates when you don't have to? Any of these three states could go earlier than March 1 and modify their delegate allocation rules to maintain compliance and not lose any delegates (as long as the contests were not scheduled before the final Tuesday in February). That is weighed, of course, against putting all of the delegates on the table in a potentially more competitive environment that may end up diluting the influence of the state in the grand scheme of winnowing the presidential field and/or proving kingmaker for the nominee, thus effectively wrapping up the nomination.

As is the case with a great many of these sorts of tradeoffs (i.e.: When is the best time to hold a primary or caucus?), it can be difficult to definitively answer the question in advance. There is too much uncertainty. Uncertainty about the identity of the candidates who may run. About how they perform in earlier states. About which candidates would still be viable at the point in the calendar when your state is scheduled. About which other states are also considering similar moves. About the usual issues of the timing of these decisions also. The decisions are often made well in advance of when a great many of those questions above can be answered so as to allow the delegate selection plan to be implemented (i.e.: to administer to the election process). The national parties do both have deadlines for when states should have in a place a plan for the upcoming delegate selection process (usually in the late summer or early fall of the year preceding a presidential election).

But states like Florida and Michigan and Arizona have shown in the past that they want to have their cake and eat it too. Threading this particular needle -- though it may be considered and ultimately acted on -- is a tough one to do in advance. If the invisible primary has seemingly produced a clear frontrunner, the gamble is easier; not so much of a gamble. The rationale among state-level actors would be, "Hey, we know the likely outcome, let's alter the delegate allocation rules so as not to lose any delegates through penalty." The closer/more competitive it looks like the race will be, though, the harder it becomes for states to pull the trigger on a plan that may or may not reduce the state's influence.

After all, a win may be a win no matter what the delegate advantage is coming out of any given state (see Santorum's early February victories in non-binding contests in Colorado, Minnesota and Missouri in 2012).

This bears watching not only in Arizona, Florida and Michigan but in other states that may opt to alter their rules to maximize their influence. Of course, none of this is likely to be taken up until state parties hold off-year conventions or executive committee meetings to make these determinations in 2015.

1 The 2012 rules held that states "shall" allocate delegates in a proportionate manner if they hold contests prior to April 1 (Rule 15.b.2). The current Rule 16.c.2, however, states that states "may" hold proportional contests before that same point on the calendar. There is, then, little to no force behind the rule. It is a suggestion for 2016 instead of the mandate the rule was in 2012.

2 That March 1 threshold is assumed and has proven to be a point on the calendar over which most states are unwilling to cross due to the penalties both parties have put in place.

3 Some states used this method but took advantage of a provision in the RNC definition of proportional that allowed a conditional allocation of the at-large/statewide delegates based on the results of the primary. If a candidate received a majority of the vote statewide either all of the state's delegates (congressional district delegates included) or all of the at-large delegates could be allocated to the winner. Otherwise, the allocation of the at-large would be proportional.

4 The strange thing about this is that neither Arizona nor Florida had newly drawn congressional districts at the times at which their primaries were held. New lines had been drawn to account for the new district in Arizona and the two new districts in Florida, but neither plan had been precleared as part of both states' coverage under the Section 5 provisions of the Voting Rights Act (as, for instance, South Carolina had in late 2011 ahead of the January presidential primary in the Palmetto state). There was still activity between the Department of Justice and both Arizona and Florida as late as April. To FHQ's knowledge, neither state overtly lobbied the RNC with the argument that lack of Section 5 preclearance effectively infringed on the states' rights to determine their own method of delegate allocation and subsequent abilities to comply with the rules. Without clearly defined and approved congressional district lines, neither Arizona nor Florida had the ability to choose any of the "proportional" methods of allocation by congressional district. Their options were either a true winner-take-all allocation or a true proportional allocation. Both obviously opted for the former; methods both states had traditionally used in the pre-proportionality requirement days (before 2012, then). This is not to suggest that those sorts of pleas would have been successful, but the argument could have been made that certain options that were available to some states were not available to Arizona or Florida. New York, for instance also had redistricting issues as well (but those were not Section 5 related) and had to have contingencies in place for the method of allocation under a 27 and 29 congressional district alignment. Those contingencies were not in place in either Arizona or Florida; some evidence that there had been no Section 5-related argument put forth by either state party before the RNC.

5 Due to the issue cited in footnote 4, those three congressional district delegates from the ninth district are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

6 See footnote 4.

7 Due to the issue cited in footnote 4, those six congressional district delegates from the twenty-sixth and twenty-seventh districts are unaccounted for in this exercise and the three automatic delegates are treated as unbound.

Recent Posts:

Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Three

Thoughts on Where the 2016 Presidential Primary Rules Stand, Part Two

Are you following FHQ on TwitterGoogle+ and Facebook? Click on the links to join in.

No comments: