Friday, October 11, 2013

"Can it stick?"

That's Dave Catanese asking whether "no primaries before February 1" will happen in the Republican presidential nomination race in 2016.

The answer is no. There are at least two reasons for that.

First, there is nothing in the current RNC rules for delegate selection that sets February 1 as a point on the calendar beyond which no primaries and caucuses can occur. That was the rule for the 2012 cycle, but that rule has been tweaked for 2016. The idea for 2012 was that February was carved out for Iowa, New Hampshire, Nevada and South Carolina and that the remaining states would fall in line on or after the first Tuesday in March. That, as Mr. Catanese points out, did not really work out so well.

However, for 2016, in addition to the new super penalty, the carve-out states were given a bit more latitude by the RNC for their primary and caucus date-setting. Now, the four carve-out states are no longer fettered by the limitations of a February 1 threshold. Those limitations included not only an ever-decreasing number of days in February in which to schedule those four contests -- assuming some state or states made the jump into February -- but the application of the 50% delegate reduction if any of the carve-outs jumped the February 1 barrier.

What the RNC did in Tampa was allow for the carve-outs to have a month prior to the next earliest contest in which position their primaries and caucuses. That is both a protection of the four earliest states and a nod to the reality that it requires approximately one month of days for Iowa, New Hampshire, Nevada and South Carolina to space their contests they way they like or to comply with what state law calls for.

And that brings us to the second reason that "no contests before February 1" is not likely to stick in 2016. The way the Republican rules are constructed now, there is an incentive to actually schedule a contest for the last Tuesday in February. And in 2016 that last Tuesday in February is an early last Tuesday -- February 23. Unless Nevada and South Carolina hold concurrent contests on the Saturday prior to that last Tuesday, there is no way both Iowa and New Hampshire can fit into February and remain consistent with state laws. Mainly this has to do with the New Hampshire law. Though Iowa law calls for an eight day buffer between its caucuses and the next contest, the Hawkeye state parties have scheduled their caucuses within that range of New Hampshire in each of the last two cycles; just five days before in 2008 and a week in 2012.

New Hampshire sticks to its statute as numerous times over the last generation have borne witness but most recently in 2012 when Secretary Bill Gardner held the line against the Nevada caucuses positioned on the Saturday after the Tuesday he was eyeing for the Granite state primary. If Nevada and South Carolina did not have a history of weekend contests, it would be easier for New Hampshire and then Iowa to fall into place with all four within a span of time of less than one month. As it stands, Saturday contests in Nevada and South Carolina increases the New Hampshire buffer to eleven days instead of seven. The law does not change, but the secretary cannot follow the state law by scheduling the primary for a point on the calendar just four days in advance of another contest.

But that is somewhat tangential to all of this. The real point is that the RNC has allowed the carve-outs a month prior to the fifth contest or next series of contests (if there are multiple states on that next earliest contest date) in which to schedule their contests. That could mean that all four end up in February, but that is less likely now because there are already a couple of states scheduled for that last Tuesday in February. And Arizona and Michigan are there without penalty at the moment. That is the incentive mentioned above.

Now, the intent of the Republican rulesmakers in Tampa last summer was to create a two part penalty: a super penalty for any state with a contest prior to the last Tuesday in February and a 50% penalty for any state before the first Tuesday in March. The thinking was that the super penalty would hit any state willing to jump beyond the last Tuesday in February and the proportionality requirement would assess a separate 50% penalty on Arizona and Michigan -- neither of which had proportional allocation in 2012.1 But there currently is no proportionality requirement in the RNC rules (see may/shall issue) and even if that loophole was closed, there is no penalty that would be assessed to a proportional state with a primary schedule in that area of the calendar between the last Tuesday in February and the first Tuesday in March.

But the RNC rules aren't finalized yet. Those loopholes may be closed and the incentives removed for other states wishing to get in on Arizona's and Michigan's turf. Even if that incentive is removed (and/or other states don't challenge the enforcement of the super penalty), Arizona and Michigan are still positioned on the last Tuesday in February. And given the carve-out state conflicts touched on above that is very likely to push at least Iowa into late January.

Things will change between now and late 2015 -- when the calendar is set -- but right now, the calendar will include at least one January contest. And folks, that's an improvement over 2008 and 2012 that the parties can tolerate.

1 Michigan was suppose to have been proportional (at least the two statewide at-large delegates were), but didn't really end up that way.

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