To start with, FHQ will focus on the so-called super penalty the RNC has put in place to deal with states that may be willing and able to break the timing rules laid forth in Rule 16(c). The new penalty is described in Rule 17(a):
If any state or state Republican Party violates Rule No. 16(c)(1) of The Rules of the Republican Party with regard to a primary, caucus, convention or other process to elect, select, allocate, or bind delegates and alternate delegates to the national convention by conducting its process prior to the last Tuesday in February, the number of delegates to the national convention shall be reduced to nine (9) plus the members of the Republican National Committee from that state, and the corresponding alternate delegates shall also be reduced to nine (9).All states, then, that hold a delegate selection event prior to the last Tuesday in February -- in 2016, that is February 23 -- would have their delegation to the convention reduced to 12 delegates. If this penalty had been in place in 2012, Florida's January 31 primary, for example, would have seen the state's delegation shrink from 99 delegates to 12; instead of the 50% penalty that knocked the Sunshine state down to 50 delegates.
The innovative aspect of all of this is that the new Rule 17 puts in place a sliding scale of penalties -- variable by state size -- that ends up buttressing the so-called "on ramp" that the Growth and Opportunity Project report indicated the party values. In other words, big states with large delegations would be taking more of a gamble in breaking the timing rules than small states. Taking the original, pre-penalty 2012 delegate numbers, we can assess just how large the super penalty would have been had any state held a binding primary or caucus prior to the last Tuesday in February:
The result is that the knob is turned up on a seemingly ineffective 50% penalty for over three-quarters of the states and territories.1 California's delegation would be docked 93% of its delegates while Vermont would face a much smaller 29% penalty. This has the practical effect of amping up the penalty on those states that have proven to be the most willing to jump the queue. Florida would face an 88% penalty to its delegation. Michigan and Arizona, though both are currently compliant with February 23, 2016 primary dates, would face 80% and 79% penalties, respectively, for moving up into the window of time on the calendar reserved for the carve-out states.
The question is whether this incentivizes smaller states moving up, gambling that their delegation is already small and calendar position is more important. Does the penalty change tip the balance in that direction? Well, eyeballing it, probably not. Look at the 13 states and territories with a penalty of 50% or less. New Hampshire already has protected status. New Mexico, DC, Rhode Island, Delaware and Vermont are all primary states controlled by Democrats. That leaves the territories -- most of which could not incur any penalty because the size of their delegation is already below 122 -- Maine and Hawaii as potential rogue states with an incentive to shift to an earlier and non-compliant date. Hawaii is a tough sell during primary season. Getting candidates out there and/or spending money is not something the system has seen much of in the post-reform era.
That leaves us with Maine. And Pine Tree state Republicans have held early February caucuses for the last couple of cycles. But are they willing to flaunt the rules and take an approximately 50% penalty to remain there in 2016? That is the question.
All in all, unless one of the big states opts to go nuclear -- by blowing up their delegation -- this is theoretically a potentially effect penalty. It is variable in its treatment of states; giving larger states a poison pill and reducing the list of possible/rational violators to smaller states -- those where the on ramp of retail politics would be enhanced instead of hinder (as would be the case with larger states).
It will be interesting to see how this one plays out in 2015.
1 Calling the 50% penalty ineffective is somewhat misleading. That penalty was more than sufficient in forcing compliance in the vast majority of states in 2012 and before. Where is was less than effective was under the circumstances where a limited number of states were willing to incur the penalty in exchange for what actors in states like Florida in 2008 and 2012 perceived as a more influential position on the calendar.
2 Puerto Rico has a larger delegation and may actually prove interesting in this context should Republicans on the island opt into the primary again in 2016.
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